dissenting.
I dissent.
Than’s complaint against the University of Texas Medical School at Houston, et al., is based entirely on his claim that the School did not provide him the appropriate constitutional due process that he should have had in the academic disciplinary proceedings brought against him by the School.
Than was in his third year when he sat for the NBME examination in surgery. The School assisted the NBME in giving the exam to the students by furnishing proctors for the exam. The School was to apply the NBME rules in administering the examination and in dealing with matters of cheating arising during the test.
The record demonstrates that this is exactly what the School attempted to do. After careful consultation, two proctors agreed that Than was cheating and sought instruction from Dr. McNeese, who was in charge of administering the NBME exam on behalf of the NBME and advising proctors in situations such as this. They were informed of all alternative actions (recommended by the National Board) that could be taken. However, during the time it took to determine the proper type of action to take, the problem alleviated itself. Chiang, the medical student whose paper Than was copying from, finished 30 minutes early, and because there was no one else sitting close to Than, the proctors had no cause to take any further action during the test. The proctors made full written reports of the incident to Dr. McNeese; one report was dated the day of the exam, February 22, 1991, and the other was dated February 25,1991. There was no evidence indicating the time that these reports were received in Dr. McNeese’s office. Dr. McNeese assumed it was sometime shortly following the dates of the reports.
Under point of error one, the appellants argue:
As a matter of law, the trial court erred in finding that Than was denied due process because there was no evidence to support the conclusion that Than was denied the due process required in an academic discipline context.
The trial court and the majority found that the School violated Than’s right to due process for the following reasons:
a. lack of timely notice of the hearing
b. lack of notice of the evidence to be used against him
c. occurrences during the hearing
These claims are addressed separately below.
NOTICE OF THE HEARING
The record reflects the following evidence regarding whether the School gave Than notice of the charges in a manner timely by due process standards.
Than took the NBME exam on February 22, 1991. Dr. McNeese, the dean of students, received the proctors’ reports no earlier than February 25. Dr. Kelley of the National Board was asked to do a statistical correlation to determine whether cheating occurred. Dr. McNeese testified that, at this juncture in the proceedings, she was unwilling to go forward with making any allegations against Than until she heard from the National Board.
On March 8, Dr. McNeese received a letter from the National Board, written by Dr. Kelley. As soon as she received this letter, she began to try and notify Than by telephone and by putting notices in his mailbox at school. Ultimately, Than was notified, and went to Dr. McNeese’s office on March 12. At this time, Than was told that he was being accused of cheating and that he had the right to hire an attorney. There was at least one, and possibly two, other informal meetings with Dr. McNeese or her staff during which the case was discussed.
In a letter dated April 4, Than was formally charged with committing academic dishonesty during the NBME exam. At this point, Than began contacting other students who took the exam with him who could testify in his defense.
*856The majority notes that the School did not follow its own rules with regard to dealing with a student who is suspected of cheating. However, Dr. McNeese testified during the administrative hearing that the National Board rules, unlike the School’s rules, do not state that a student should be notified during an examination that he is suspected of cheating. It was the National Board rules that applied during the exam. Dr. McNeese testified that the National Board requires that a statistical correlation be done to determine whether cheating occurred.
The majority does not claim that the length of time between the exam and the time that Than received notice was too long in the number of days per se. Instead, the majority claims that notice was untimely because after April 4 (41 days after the exam on February 22), Than could not prepare his case because of a loss of evidence, i.e., potential witnesses forgot seating details.
The students who took part in this exam were medical students and classmates of Than, and were still at the School after' the exam. The names of these students were available to Than. The record indicates that Than actually did contact some of the students who sat for the examination with him. He was even able to find two students who were willing to testify on his behalf.
The assertion by the majority that students might not be able to remember seating details does not support the finding that Than could not properly prepare his case. The fact that some students could not remember where they were sitting has no bearing on whether they remember seeing Than cheat. The record indicates that any witness who might have seen Than cheating, even though they may have forgotten where they sat while the cheating occurred, would not have forgotten seeing the event itself. In fact, both students who testified for Than at the hearing stated that they recalled seeing academic dishonesty during other tests that had occurred over a year prior to the hearing.
I would hold that the evidence does not support the trial court’s finding that the appellants’ “lengthy delay in advising [Than] of the charges against him materially disadvantaged his ability to investigate and prepare his defense to the charge of academic dishonesty,” and that “the university’s failure to confront and explain the circumstances surrounding the suspicion of cheating to [Than] in a more timely manner substantially impacted [Than’s] ability to meaningfully respond to the charge.”
NOTICE OF THE EVIDENCE TO BE USED AGAINST THAN
The majority finds that the School’s notice to Than of the evidence to be used against him was constitutionally insufficient. It bases this finding on the facts that (1) Than had only five days to prepare for the hearing because he received the package with the copies of the documents to be used against him on April 12, five days before the hearing scheduled on April 18, and (2) Than received no notice that the following evidence would be used at the hearing: (a) a specific psychiatry grade; (b) Dr. Kelley’s work product in regard to the comparison of Than and Chiang’s exam papers; and (c) the statistical methodology explaining the analysis set forth in Dr. Kelley’s letter.
Five days notice
The majority first claims that Than did not have enough time to prepare for the hearing, as he received the evidence that would be used against him only five days before the hearing. The evidence shows, however, that Than wanted to have the hearing immediately. He encouraged Dr. McNeese to set the hearing as soon as possible and he never complained about the date of the hearing. Further, “[t]here is no constitutional requirement that, to provide [the students] an opportunity to respond, [Than] must have received any more in the way of notice than a statement of the charge against [him].” Nash v. Auburn Univ., 812 F.2d 655, 663 (11th Cir.1987).
In Nash, two students who were accused of academic dishonesty were not notified of the specific charges against them and the witnesses to be heard until the day before *857the hearing. 812 F.2d at 658. The court held that there was no constitutional violation because the students were present at the hearing, brought counsel and witnesses, and were able to present a defense and discredit adverse testimony. Id. at 662.
Than had more time than these students did, and had all of the same opportunities. Than appeared on April 18, made no complaint that he was unprepared, and proceeded to present his views. He presented his defense, cross-examined the witnesses, and discredited adverse testimony as the record demonstrates, though he chose not to have counsel. Than testified that he did not wish to retain counsel.
Considering all of the above, I would hold that Than’s due process rights were not violated by the fact that he received notice of the evidence to be used against him only five days before the hearing.
Psychiatry grade
In my dissent in University of Texas Medical School v. Than, 834 S.W.2d 425, 434, 435 (Tex.App. — Houston [1st Dist.] 1992, no writ) (referred to as “Than II” in the majority opinion), I found that the majority’s conclusion that Than did not receive notice that his academic record would be used against him was not reasonably supported by the evidence. Dr. McNeese specifically advised Than that she might testify about any aspect of his student record. Id. at 435. For the reasons set forth in my previous dissent, I would again hold that Than’s due process rights were not violated.
Statistical analysis
I agree with the majority’s conclusion that Than did not receive the enclosure, in Dr. Kelley’s letter, regarding the statistical methodology and analysis that the School received. Dr. Kelley’s letter to Dr. McNeese, which Than received, stated in relevant part:
It is my judgment that since the total group of examinees tested was only 29, it is not advisable to estimate the percentage of the 26 items for which that group would give the same wrong answer. Therefore, a probability that 23 agreements for 26 joint wrongs (88%) is a finding to be expected for examinees working independently can not be provided.
Robert Hill, Than’s statistics expert, testified that Dr. Kelley’s letter stated that the statistical analyses, which were explained in the methodology and analysis which Than did not receive, were not applied by Dr. Kelley. He based this conclusion on the information contained in Dr. Kelley’s letter, which Than received. He stated that the portion of the letter quoted above means that the analysis could not be used because the sample size was too small, and, therefore, he could not calculate the necessary probabilities.
During the administrative hearing, Than testified in regard to the statistics referred to in Dr. Kelley’s letter. He pointed out that the letter indicated that the study should not be relied on to prove how many students came up with the same number of wrong answers. Everything Than needed was in the letter from Dr. Kelley, which he received. Dr. Kelley did not apply the analyses which were explained in the addendum to his letter. Therefore, the analysis was of no use to Than.
I would find that Than’s due process rights were not violated by the School’s failure to give Than the statistical data and methodology which was enclosed in Dr. Kelley’s letter, as he suffered no material prejudice. See Keough v. Tate County Bd. of Educ., 748 F.2d 1077, 1083 (5th Cir.1984).
THE HEARING
Visit to the exam room
The majority finds that Than’s due process rights were violated due to occurrences at the hearing. The majority first states that the hearing was tainted because Dr. Russell went into the examination room at the conclusion of the hearing and Than was not allowed to go with her.
The record demonstrates that Dr. Russell did not consider any evidence gleaned from *858her trip to the exam room that she had not already heard during the hearing. Nor does Than point to any conclusion that she reached that she could not have reached if she had not gone into the room.
Dr. Russell did go into the exam room after the completion of the hearing, and sat in all four chairs. Others were there with her to sit in the chairs sat in by Chiang, Than, and the witnesses. Dr. McNeese told Dr. Russell where each person sat in the room, using the seating chart which had already been introduced into evidence. Dr. Russell testified that sitting in Than’s seat, she could see an uncovered sheet on Chiang’s desk. However, she learned no more by visiting the exam room than she learned from the testimony presented to her during the hearing; the exam proctors testified during the hearing that Than could see Chiang’s paper from where he was sitting. What Dr. Russell saw in the room was simply cumulative of what had already been introduced into evidence at the hearing.
Further, due process in a disciplinary situation requires no more than an “informal give-and-take” between the student and the school. Goss v. Lopez, 419 U.S. 565, 584, 95 S.Ct. 729, 741, 42 L.Ed.2d 725 (1975); Ame-lunxen v. University of Puerto Rico, 637 F.Supp. 426, 431 (D. Puerto Rico 1986), affd, 815 F.2d 691 (1st Cir.1987). It is not necessary to have a formal hearing and apply formal rules of evidence to meet due process standards. Goss, 419 U.S. at 585, 95 S.Ct. at 741; Amelunxen, 637 F.Supp. at 431. In Goss, the Supreme Court wrote:
To impose ... even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the [] process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.
419 U.S. at 583, 95 S.Ct. at 740-41.
Burden of proof
The majority also expresses concern over the fact that Dr. Russell did not seem to understand the concept of burden of proof and its proper application. She thought both parties had a burden to prove their respective eases. I find this to be inconsequential. Courtroom standards, with attendant rules of evidence and burdens of proof, are not even required in a school setting. Goss, 419 U.S. at 585, 95 S.Ct. at 741; Amelunxen, 637 F.Supp. at 431. An informal give-and-take is all that is necessary. Goss, 419 U.S. at 585, 95 S.Ct. at 741; Amelunxen, 637 F.Supp. at 431.
Considering all of the foregoing, I would hold that Than received all the due process to which he was entitled.
I would sustain point of error one.
Under point of error two, the appellants argue:
The trial court erred in its grant of the permanent injunction sought by Than because there is no evidence to support the conclusion that the procedural due process violations could not be cured, and thus at most, the remedy for procedural due process violations is an order requiring Than receive due process.
Under this point of error, the majority finds that the due process violations cannot be cured because it is too late to have a fair and rehable hearing and because the due process violation was not Than’s fault. Due process requires an opportunity to be heard at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). I do not agree that Than’s due process rights were violated. Even if there was a violation of his rights, the School has a record of the students who were present at the NBME exam, and they can be contacted to testify in some fashion. Furthermore, the two proctors are available, as well as Than’s academic records. As is demonstrated by the record, students tend to remember when they see someone cheat, so the fact that there has been a long period of time between the event and the hearing is irrelevant.
The majority insists on imposing courtroom principles and standards on a school *859disciplinary hearing. Applying that - idea here, I note that there are many eases that do not come to trial for several years after the actionable event occurs. Yet we do not simply wipe them from the docket because it’s possible that some witnesses’ memories might have faded.
The fact that Than has completed the balance of his necessary classes to complete the academic portion of his medical training does not change the fact that the School dismissed him for cheating, and was forced by means of a restraining order to allow him to continue his studies. Here, the integrity of the School is at stake. Cheating not only cuts across the struggle of our schools to achieve academic excellence, it underpins and supports intellectual mediocrity. Even though I disagree that any of Than’s due process rights were violated, I see no reason why the School should not be afforded the opportunity to hold a second hearing if the majority is correct in its assertions.
I would sustain point of error two.
Under point of error three, the appellants argue:
The trial court erred as a matter of law by ordering UT to grant Than a medical degree because such an order is beyond the proper authority of the court.
Under this point of error, the majority holds that the trial court was correct in ordering the School to issue Than a diploma. I would find that the trial court has no authority to order the School to graduate Than. There is no precedent for such an act. In a similar situation, a federal court held: “At the outset, the court clarifies that it has no authority to order the University to award plaintiff a Master’s Degree ...” Amelunxen, 637 F.Supp. at 429-30 (citing Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978)). There are many things a medical school considers when determining whether to graduate a student; academics is only one of them. See Hankins v. Temple Univ. Health Sciences Center, 829 F.2d 437, 439, 441 (3d Cir.1987).
I would sustain point of error three.
In conclusion, I would order that the permanent injunction be dissolved.