No. 13659
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
SANDRA S. JOHNSON,
Plaintiff and Appellant,
-vs-
ROBERT E. SULLIVAN et al.,
Defendants and Respondents.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding
Counsel of Record:
For Appellant:
William George Harris argued, Missoula, Montana
For Respondents:
George L. Mitchell argued, Missoula, Montana
Submitted: June 22, 1977
Decided :
?.!riv 1 6 1977
Filed: '
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-
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i
.
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
plaintiff Sandra S. Johnson appeals from a judgment of the
~istrictCourt, Missoula County, upholding her exclusion from the
School of Law of the University of Montana for failure to meet
academic standards. By her action plaintiff sought readmission to
the law school, the removal from her academic record of a grade of
F received in a Constitutional Law course, and to have her cumulative
grade point average computed without regard to this failing grade.
Defendants, hereinafter referred to as the University are:
Robert E. Sullivan, Dean of the School of Law of the University of
Montana; Richard C. Bowers, President of the University of Montana;
and Lawrence K. Pettit, Commissioner of Higher Education of the State
of Montana.
Following trial of the cause without a jury, the District
Court entered judgment denying the relief sought and rescinding a
restraining order and injunction pendente lite under which plaintiff
had been permitted to attend classes.
Plaintiff entered the University of Montana School of Law in
the fall of 1973, and successfully completed her first two semesters
of study. She received a grade of F in the Constitutional Law
course and grades of D in two other courses taken during her third
semester, and consequently, was deficient by eleven grade points at
the end of that semester. Plaintiff was excluded from the law
school under the applicable exclusionary rule which provides that
students with a deficiency of six or more grade points at the end
of their third semester are not allowed to continue their law studies.
Plaintiff's second petition for readmission subsequent to that exclu-
sion was granted by the law school faculty, and she returned for
the next academic year. At the end of that year, her academic
performance was deficient by eight grade points. plaintiff was
excluded again, in this instance for failure to meet the law school
requirement that a student have a cumulative grade point average of
2.0, which is a zero grade point deficiency, at the completion of
the fourth semester.
Plaintiff again petitioned for readmission. The petition was
denied. She then brought this action and obtained a restraining
order and injunction pendente lite permitting her to attend third-
year classes. Following entry of judgment against her in the District
Court, plaintiff appealed and obtained a stay of judgment and a res-
toration of the injunction pending determination of the merits on
appeal.
The central issue on appeal is whether the practices, poli-
cies, rules and procedures under which the fitness of a student to
continue the study of law is appraised, as applied to plaintiff,
violate Constitutional requirements of due process and equal protec-
tion and section 93-2002, R.C.M. 1947.
Plaintiff's argument with respect to this issue is based on
her contention that the method by which the University computed her
cumulative grade point average is unfair and unreasonable.
The University computes a student's cumulative grade point
average by dividing the number of grade points earned by the number
of credits undertaken. For the purpose of this determination, four
grade points are assigned for each credit of A, three grade points
for each credit of B, two grade points for each credit of C, one
grade point for each credit of D, and zero grade points for each
credit of F.
Under the general University rule, the last grade received in
a repeated course replaces the prior grade. If a student repeats a
course for which he or she initially received a grade of F, the
student's cumulative grade point average reflects only the last grade
earned; the failing grade is not applied to the computation of the
student's cumulative grade point average.
In the School of Law, however, a student's cumulative grade
point average is computed on the basis of all courses for which a
student has registered and received a grade. If a grade of F is
received in a law school course and the course is repeated, both the
initial F and the last grade received are included in the computation
of the student's cumulative grade point average. In effect, the law
school averages both grades received in a repeated course, while other
schools and departments of the University generally do not.
Plaintiff received her failing grade in Constitutional Law,
a course required for graduation from the School of Law. By law
school regulation, she therefore was required to repeat the course.
In the repeated course, as in all courses taken during the academic
year following her readmission, plaintiff received a passing grade.
Her cumulative grade point average, however, remained below the 2.0
required of law students at the end of their fourth semester. This
deficiency can be attributed to the continuing application of the
failing grade to plaintiff's cumulative grade point average.
Plaintiff first contends this method of computing a student's
cumulative grade point average, as applied to her, violates due pro-
cess requirements and denies a fair and equal application of the
academic requirements for graduation.
The test for determining whether due process requirements are
met was set forth by this Court in Milk Control Board v. Rehberg,
141 Mont. 149, 155, 376 P.2d 508 (1962). Quoting the United States
Supreme Court in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505,
78 L . E d . 940, 89 A.L.R. 1469 (1934), this Court stated:
" * * * '[Tlhe guaranty of due process * * * demands
only that the law shall not be unreasonable, arbitrary,
or capricious, and that the means selected shall have
a real and substantial relation to the object sought
to be attained.' * * * "
In the present case, the question is whether it is unreasonable,
arbitrary, or capricious for the University to include both grades
received for a repeated course in its computation of a law student's
cumulative grade point average. Resolution of this question turns
on the relation between that method of computation and the objectives
the University has in determining a grade point average.
The immediate objective of any method of computing a grade
point average is to provide an accurate, easily understood measure
of academic performance. As it relates to the law school's exclu-
sionary rule, a student's grade point average is used as an indication
of his or her presumed fitness to continue the study of law. If a
student's grade point average falls below a set standard, University
rules authorize the law school to exclude the student from further
study .
Because of this state's "diploma privilege", graduates of the
School of Law may be admitted to practice on motion; they are not
necessarily required to take and pass the state's bar examination.
Graduation from the School of Law, therefore, virtually guarantees
admission to practice. Ultimately, then, the object of measuring aca-
demic performance and allowing or precluding a law student's continued
study on the basis of that performance is to assure that graduates
of the School of Law are qualified to enter practice.
The University argues that its method of computing law stu-
dents' cumulative grade point averages is reasonably related to the
objectives of determining first, academic competence, and ultimately,
in light of the "diploma privilege", the probability of professional
competance. At the trial of the present case, Robert E. Sullivan,
Dean of the School of Law, testified the rule requiring the applica-
tion of both grades received for a repeated course "goes to the
determination of a capacity and capability of a person to become a
lawyer." He also testified that the law school faculty, in promul-
gating this rule, considered that a repeater would have the benefit
of having taken the course before, and would have a competitive ad-
vantage over students taking the course for the first time. It was
the law school faculty's judgment that capacity in a repeated course
would be more accurately reflected by an averaging of the grades
received than by disregarding the first grade.
Plaintiff concedes that the School of Law is responsible for
ensuring that its graduates are qualified and competent to serve the
courts and people of this state. She contends the rule by which both
grades received in a repeated course were applied in the computation
of her cumulative grade point average bears no reasonable relation
to the law school's goal of meeting this responsibility.
Plaintiff asserts that she has established competence in
Constitutional Law by receiving a grade of C for the course in her
second attempt. She argues that only the passing grade should be
treated as indicative of her competence in Constitutional Law. This
argument is based for the most part on plaintiff's interpretation of
the effect of the law school's acceptance of her second petition for
readmission following her first exclusion.
The law school rule on readmission at that time stated:
"A student excluded on the basis of substandard
academic performance shall not be readmitted,
except in extraordinary cases when satisfactory
showing is made to the faculty, by written petition,
that the substandard performance was the result of
unusual circumstances beyond the control of the
student, that such circumstances no longer exist,
and that the student has the capability and desire
to perform satisfactory work."
The "unusual circumstances" that existed during the semester
in which plaintiff received the failing grade were complications due
to pregnancy. These circumstances were detailed in plaintiff's
successful petition for readmission. Plaintiff argues that by
granting that petition, the law school faculty impliedly found the
failing grade to be invalid.
The University contends the granting of a petition for re-
admission does not have this effect. Facts adduced at trial indicate
the law school faculty has no means by which they can determine whether
circumstances alleged in such a petition actually existed or whether
the student's substandard performance was related to those circum-
stances. Taking the petition at face value, and examining the aca-
demic record of the student, the law school faculty decides by ma-
jority vote simply whether the student merits another opportunity.
Plaintiff would have this Court declare the first grade she
received in Constitutional Law is invalid and the University, there-
fore, should be precluded, on due process grounds, from using that
first grade in the measurement of her academic compete-nce. This we
decline to do.
In Connelly v. University of Vermont and State Agricultural
College, 244 F.Supp. 156 (D. Vermont 1965), a third year medical
student alleged he had been arbitrarily given a failing grade in a
required course in an action seeking readmission following his dis-
missal for academic deficiency. The court held that the question of
the arbitrariness of the university's action was a factual determina-
tion, and accordingly denied the university's motion to dismiss. In
language relevant to the present case, at 160 of 244 F.Supp., that
court discussed the boundaries of such a claim:
"The effect of these decisions [concerning student
dismissals for failure to attain a proper standard
of scholarship] is to give the school authorities
absolute discretion in determining whether a student
has been delinquent in his studies, and to place the
burden on the student of showing that his dismissal
was motivated by arbitrariness, capriciousness, or
bad faith. The reason for this rule is that in
matters of scholarship, the school authorities are
uniquely qualified by training and experience to
judge the qualifications of a student, and efficiency
of instruction depends in no small degree upon the
school faculty's freedom from interference from other
noneducational tribunals. It is only when the school
authorities abuse this discretion that a court may
interfere with their decision to dismiss a student."
(Bracketed material added.)
There is no dispute that plaintiff was apprised of the rule
requiring the inclusion of the first grade received for a repeated
course in the computation of her cumulative grade point average. The
applicable general University catalog and law school bulletin explic-
itly provide that the first grade received in a repeated course re-
mains on the student's record "for all purposes". There is also no
dispute that the University applied this method in its computations
of the cumulative grade point averages of all students in the School
of Law. Plaintiff has shown neither arbitrary action on the part of
the University with respect to its promulgation of the rule itself
nor arbitrariness in the University's application of the rule in its
measurement of her academic performance.
This state's "diploma privilege" does not divest the Univer-
sity of its discretion to set standards for the measurement of aca-
demic competence. Absent a showing that these standards were arbi-
trarily or capriciously set or applied, this Court will not find
them to be unrelated to the ultimate object of ensuring that graduates
of the School of Law are qualified to enter practice.
Plaintiff next contends the differing methods used by the
University in computing cumulative grade point averages of law stu-
dents and students in other disciplines reflect a classification
that violates equal protection guarantees.
Clearly, a law student is treated differently than other
University students in this respect; the University does not dispute
the effect of the differing rules is to classify students according
to their field of study. However, the existence of a classification
does not of itself constitute a denial of equal protection. Great
Falls Nat. Bank v. McCormick, 152 Mont. 319, 323, 448 P.2d 991 (1968).
When, as in the present case, the classification is neither
based on a "suspect criterion" such as race, wealth, nationality, or
alienage, nor affects a "fundamental right" such as the right to
vote, the right of interstate travel, or the right to freedom of
speech, the 'rational basis" test is applied to determine its con-
stitutionality. In Montana Land Title Assoc. v. First American
Title, 167 Mont. 471, 475, 476, 539 P.2d 711 (1975), this Court
stated:
" * * * While reasonable classification is permitted
without doing violence to the equal protection of
the laws, such classification must be based upon
some real and substantial distinction bearing a
reasonable and just relation to the things in re-
spect to which such classification is imposed; such
classification cannot be arbitrarily made without
any substantial basis. * * * "
As the Supreme Court of Washington stated in DeFunis v. Odegaard, 82
" * * * the question is whether the classification
is reasonably related to a legitimate public purpose.
And, in applying this 'rational basis' test, ' [A]
discrimination will not be set aside if any state
of facts reasonably may be conceived to justify it.'
McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct.
1101, 1105, 6 L.Ed.2d 393 (1961)."
There are many practical differences between the School of
Law and other schools and departments of the University; for example,
instruction methods and examination procedures differ, as do atten-
dance policies and requirements for class preparation. The different
methods used in the computation of cumulative grade point averages
of law students is not the only dissimilarity which reflects the
distinction between law students and students in other graduate or
undergraduate areas of study.
It is not unreasonable to classify students in this manner.
The study of law is substantively different from the study of English,
or forestry, or pharmacy. The use of different methods to measure
academic performance among the various schools and departments of
the University indicates this difference has been recognized.
There is no classification of students within the law school
with respect to the computation of their cumulative grade point
averages; all law students who repeat a course have the first grade
received in that course included in the computation. There is no
denial of equal protection in measuring the academic performance of
law students by a method that is not employed by other schools and
departments of the University.
Plaintiff's final contention is that even if the University's
method of computing her cumulative grade point average is found to
be valid, and her academic record accordingly is unchanged, it was
arbitrary and capricious for the law school faculty to deny her peti-
tion for readmission. Plaintiff does not challenge the exclusionary
standard, which provides that law students must have a 2.0 cumulative
grade point average at the completion of their fourthsemester. She
asserts that she should have been readmitted despite her failure to
meet this standard.
Plaintiff argues that since other students with an academic
deficiency have been readmitted, her exclusion on that basis is
unfair. Certainly, not all petitions for readmission are granted.
Plaintiff does not argue that the law school faculty should be required
to either grant or deny all such petitions. She neither presented
nor offered any proof that would tend to show her petition was not
given the same consideration that is given to the petitions of other
students similarly excluded. Absent any showing of discriminatory
or arbitrary treatment by the faculty in their review of her petition
for readmission, we must conclude that her contention is groundless
and her petition was properly denied.
For the reasons set forth above, the judgment of the District
Court is affirmed.
Chief Justice A