REVOCATION OF ACADEMIC
DEGREES
BY COLLEGES AND UNIVERSITIES
Bernard D. Reams, Jr.*
INTRODUCTION
Few things are more essential to career success in the modern
world than a college diploma.' The English people recognized 250
years ago that an academic degree is "a great office, a dignity. ' 2 Today,
as competition for jobs and for entry into professional schools has
stiffened, the college degree has become an even more precious commodity.
For some college students, however, tuition and toil are not the
only avenues to the desired degree. Many students, driven by the
competitive atmosphere of the academic community, have resorted to
fabrication, 3 plagiarism, 4 and even criminal wrongdoing5 to obtain their
* Professor of Law; Acting Dean of Library Services, Washington University School
of Law, St. Louis, Missouri; B.A., Lynchburg College, 1965; M.S., Drexel University,
1966; J.D., University of Kansas, 1972; Ph.D., St. Louis University, 1984.
The author recognizes the research assistance of Robert E. Bacharach, J.D., 1985,
Washington University and Robert G. Oesch, J.D., 1986, Washington University in the
preparation of this essay. The advice and suggestions of Professors Jules B. Gerard and
D. Bruce La Pierre of Washington University School of Law are gratefully acknowledged.
I See Crook v. Baker, 584 F. Supp. 1531, 1556 (E.D. Mich. 1984), vacated, 813
F.2d 88 (6th Cir. 1987). The historical titles of the degree levels of bachelor, master and
doctor are traced to the Middle Ages at the University of Bologna and University of
Paris. See 1 RASHALL, THE UNIVERSrnEs OF EUROPE IN TE MInLE AGES 19, 207 (Powicke
and Emden, eds. 1951).
2 Rex v. Cambridge Univ. 8 Mod. Rep. (Select Cases) 148, 92 Eng. Rep. 818, 2
Ld. Raym. 1334 (K.B. 1723). In this case, plaintiff sought the restoration of his doctoral
degree which the university rescinded without a judicial hearing. The court granted
plaintiff's writ of mandamus to restore the degree, noting that "God himself would not
condemn Adam for his transgression until he had called him to know what he could say
in his defense," 8 Mod, Rep. 148, 164 (1723). See generally Harker, The Use of Mandamus
to Compel Educational Institutions to Confer Degrees, 20 YALE L. J. 341 (1911).
1 See Memorandum Brief in Support of Motion for Summary Judgment at Appendix
A, Crook v. Baker, 813 F.2d 88 (6th Cir. 1987) (citing academic journals regarding the
growing problem of data fabrication). See generally Fraudulent Credentials:Joint Hearing
Before the Subcommittee on Health and Long-Term Care and the Subcommittee on
Housing and Consumer Interests of the House Select Committee on Aging, Comm. Pub.
No. 99-550 (U.S. Govt. Printing Office) (December 11, 1985); Subcommittee on Health
and Long-Term Care of the House Select Committee on Aging, FRAUULENT CREDENTIALS:
FEDERAL EMPLOYEES Comm. Pub. 99-571 (Comm. Print, 1986).
4 See, e.g., Hill v. Trustees of Indiana Univ., 537 F.2d 248, 250 (7th Cir. 1976)
(graduate student received failing grades because of plagiarism); Peles v. LaBounty, 90
284
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[Vol. 14, No. 2
degrees. Viewing this phenomenon with alarm, colleges have reacted
strongly, even to the extent of revoking degrees conferred on former
students. 6
Courts have traditionally deferred to the academic community's
autonomy in everyday operations, such as granting degrees. 7 The tension between the demand for degrees and wrongful means of obtaining
them, however, is eroding the tradition of judicial deference and expanding the law's presence on America's campuses. 8 Students denied
their degrees appear more willing to summon the judicial mechanism
to obtain a degree to which they feel entitled. 9 Universities which
attempt to rescind a degree already conferred, though, are subject to
increased judicial scrutiny, especially of the procedures used to rescind
the degree.1°
This article examines whether public and private colleges have the
authority to revoke already-conferred academic degrees, and what procedural safeguards are required to ensure fairness in the revocation
process. This article limits its scope to university decisions to revoke
degrees because of academic dishonesty. The refusal by universities to
grant degrees or academic credit as a disciplinary response to other
forms of student misbehavior, as well as issues raised by university
1
decisions regarding college admissions, is not considered. 1
Cal. App. 3d 431, 434, 153 Cal. Rptr. 571, 572-73 (1979) (graduate student expelled
because of plagiarism). See generally MAWDSLEY, PLAGIARISM PROBLEMS IN HIGHER EDUCA-
13 J.C. & U.L. 65 (1986); Syracuse U. Revokes Ph.D. in Alleged Plagiarism Case,
Chron. Higher Educ., Oct. 12, 1983, at 3, col. 4 (Syracuse University revoked a doctoral
degree awarded in 1976 after discovering anthropology thesis was plagiarized).
5 One example of such criminal activity is tampering with grades. U. of Georgia
Expels 2 in Grade-Selling Incident, Chron. Higher Educ., Sept. 5, 1984, at 2, col. 2 (two
graduate students at the University of Georgia sold grades of "A" to undergraduates for
$150.00 per grade). Increased use of computers in grade alteration schemes has made
effective regulation difficult. See N.Y. Times, at 22, col. 1 (discussing recent discovery
of grade-alterations through the use of computers at the University of Southern California).
6 See Crook v. Baker, 584 F. Supp. 1531 (E.D. Mich. 1984), vacated, 813 F.2d 88
(6th Cir. 1987); Abalkhail v. Claremont Univ. Center, 2d Civ. No. B014012 (Cal. A.D.
1986), cert. denied, 107 S.Ct. 186 (1986); Waliga v. Board of Trustees of Kent State
Univ., 22 Ohio St. 3d 55, 488 N.E.2d 850 (1986).
See Waliga, 488 N.E.2d at 853.
Kaplin, Law on the Campus 1960-1985: Years of Growth and Challenge, 12 J.C.
& U.L. 269, 269-71 (1985).
See cases cited supra note 6.
'oThe only cases dilrectly on point are Crook, 584 F. Supp. at 1531; Abalkhail, 2d
Civ. No. B014012 (Cal. A.D. 1986); Waliga, 488 N.E.2d at 850; Rex v. Cambridge Univ.,
8 Mod. Rep. (Select Cases) 148, 92 Eng.Rep. 818, 2 Ld. Raym. 1334 (K.B. 1723).
1 The Supreme Court has distinguished between actions involving academic decision-making and disciplinary decisions based on rules of conduct. See Horowitz v. Board
of Curators of Univ. of Mo., 435 U.S. 78 (1978). The Horowitz doctrine received
affirmation in Regents of the Univ. of Mich. v. Ewing, 106 S. Ct. 507 (1985). See also
Amelunxen v. University of P.R., 637 F. Supp. 426 (D.P.R. 1986) (distinguishing between
due process requirements when a student is dismissed for disciplinary reasons and for
academic reasons); Napolitano v. Trustees of Princeton Univ., 453 A.2d 263 (N.J. Super.
TION,
1987]
ACADEMIC DEGREE REVOCATION
Part I of this Article examines the sources of university authority
to revoke degrees. Part II considers constitutional limitations on degree
revocations. Part III discusses procedural protections available to public
university students faced with revocation. Part IV examines procedural
protections available in the private university context. The conclusion
summarizes the current law on university revocation of degrees, and
identifies issues still in need of resolution.
I.
UNIVERSiTY AUTHORITY
To REVOKE DEGREES
Whether a university, either public or private, possesses the authority to revoke an already-conferred degree has been a matter of little
judicial attention. Recently, though, three courts have been faced with
12
this question. A United States court of appeals in Crook v. Baker
noted the dearth of case law and concluded that a university has
authority to revoke a degree. A California court of appeal upheld a
revocation in Abalkhail v. Claremont University Center without expressly, but therefore impliedly, recognizing the authority to revoke.' 3
The Ohio Supreme Court fully considered the issue in Waliga v. Board
and also recognized the authority
of Trustees of Kent State University,
14
of universities to revoke degrees.
In Waliga, Kent State University conferred undergraduate degrees
on two individuals in 1966 and 1967, respectively.15 Over ten years
later the university discovered discrepancies in the academic records
of these individuals, including credit granted for courses not taken or
offered, and variances between grades the student actually received and
those which faculty members initially reported to the registrar. 6 Concluding that these former students failed to complete substantive requirements for obtaining their degrees, the university initiated
proceedings to rescind those degrees.' 7 The former students challenged
the university's authority to revoke by seeking a judgement declaring
the rights and duties of each of the parties.' 8
The Supreme Court of Ohio recognized a university's power to
revoke a degree.'9 The court offered two rationales for this conclusion.
First, the court determined that under Ohio law any action necessary
Ct. App. Div. 1982) (notice and opportunity to be heard are required in cases involving
disciplinary actions but not when dismissal is for academic failure). See generally Fowler,
The Legal Relationship Between The American College Student and The College: An
Historical Perspective and Renewal of a Purpose, 13 J.L. & EDUC. 401 (1984); W. KAPLIN,
THE LAw OF HIGHER EDUCATION 296, 302-14 (2d ed. 1985).
584 F. Supp. 1531 (E.D. Mich. 1984), vacated, 813 F.2d 88 (6th Cir. 1987).
2d Civ. No. B014012 (Cal. A.D. 1986), cert. denied, 107 S. Ct. 186 (1986).
' 22 Ohio St. 3d 55, 488 N.E.2d 850, 853 (1986).
15 Id. at 850.
12
"1
' Id.
17 Id.
"
'
at 851.
Id.
Id. at 853.
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for the successful maintenance and operation of a state university is
authorized unless statutorily prohibited. 20 Included in this implied
authority, the court stated, is the power to revoke a degree when good
cause is shown, such as fraud, deceit or error, and when the degree
recipient is afforded a fair hearing.21 Second, the court reasoned that:
[a]cademic degrees are a university's certification to the world at
large of the recipient's educational achievement and fulfillment of
the institution's standards. To hold that a university may never
withdraw a degree, effectively requires the university to continue
making a false certification to the public at large of the accomplishment of persons who in fact lack the very qualifications that
are certified.22
The court concluded that such a holding would "undermine public
confidence in the integrity of degrees, call academic standards into
question, and harm those who rely on the certification which the degree
23
represents.
The Waliga court found the authority to revoke a graduate's degree
implicit in the basic power of colleges to confer degrees.24 This conclusion is consistent with existing law, as far as that law goes. A
student's enrollment at a college establishes a contractual relationship,
under which the student becomes entitled to a degree upon compliance
with the institution's graduation requirements. 25 In response, colleges
are vested with the power to confer degrees on students complying
with the institution's regulations and requirements. 26 The authority to
Id. at 852.
Id.
22 Id.
2, Id. See also Steinbach, E. Gulland, and J.P. BYRNE, Amicus Curiae Brief Filed
in Waliga v. Bd. of Trustees of Kent State Univ., 14 C.L. DIG. 255 (printed in West's
Education Law Reporter (NACUA) Special Pamphlet (May 3, 1984)).
24 Waliga, 488 N.E.2d at 852.
25 See Anthony v. Syracuse Univ., 244 A.D. 487, 231 N.Y.S. 435 (1928); People ex
rel. Cecil v. Bellevue Hosp. Medical College, 60 Hun. 107, 14 N.Y.S. 490 (1891); Tate
v. North Pac. College, 70 Or. 160, 140 P. 743 (1914); State ex rel. Burg v. Milwaukee
Medical College, 128 Wis. 7, 106 N.W. 116 (1906).
It is generally accepted that the terms and conditions for graduation are those offered
by publications of the college at the time of enrollment and, as such, they have the
characteristics of a contract between the parties. See University of Miami v. Militana,
184 So. 2d 701, 704 (Fla. Dist. App. Ct. 1966). When a student is admitted by a private
university, there is an implied contract between the student and the university that if he
complies with the terms prescribed by the university he will obtain the degree which he
seeks. The university cannot take the student's money, allow him to remain and spend
his time, and then arbitrarily expel him or refuse to confer on him that which it promised,
the degree. Carr v. St. John's Univ., 17 A.D.2d 632, 231 N.Y.S.2d 410, 413 (1962).
26See generally State ex rel. Nelson v. Lincoln Medical College, 81 Neb. 533, 116
N.W. 294 (1908); Foley v. Benedict, 122 Tex. 193, 55 S.W.2d 805 (1932); State ex rel.
Burg, 106 N.W. at 116.
2o
2'
19871
ACADEMIC DEGREE REVOCATION
confer or refuse conferral is broad, providing school authorities with a
large amount of discretion.2 7 Normally, the faculty or other governing
board of a college, whether public or private, is authorized to examine
the students and to determine whether they have performed all the
conditions prescribed to entitle them to a diploma. 28 Such authority
requires the exercise of quasi-judicial functions, in which capacity the
university's decisions are conclusive.29 The only apparent limitation on
the conferral power is that a degree may not be refused arbitrarily.30
This pre-Waliga body of law, however, considers only the conferral
of degrees, and not the authority to revoke degrees already conferred.
It is reasonable to conclude, as did the Waliga court, that a university
should possess the power of revocation. Since a university can confer
or refuse to confer a diploma for noncompliance with graduation requirements, 31 it follows that the institution should also be able to rescind
a degree for the same shortcomings. Unless a university possesses the
authority to revoke as well as to confer, its control over its degrees is
unfoundedly split; for noncompliance with a university's graduation
requirements, noncomplying students should suffer the same result,
whether that result is obtained by refusal to confer or by revocation.
Contract law provides another theoretical basis for the same conclusion. If a student and college are deemed to enter into a contract
upon the student's enrollment whereby the college promises to confer
a degree upon fulfillment of its graduation requirements, 32 then failure
to fulfill these prerequisites constitutes failure of a condition precedent.3 3 The university is consequently relieved of its contingent duty
to allow the student to possess a degree. 34 If a student obtains the
1, See Tanner v. Board of Trustees, 38 Ill. App. 3d 680, 363 N.E.2d 208 (1977) (a
university is under a discretionary and not a mandatory obligation to confer degrees
upon students enrolled in its courses).
28 See Militana, 184 So. 2d at 704. See generally Annotation, Student's Right to
Compel School Officials to Issue Degree, Diploma, or the Like, 11 A.L.R. 4TH 1182, 1185
(1982).
19 See People ex rel. Moore v. Lory, 94 Colo. 595, 31 P.2d 1112 (1934); People ex
rel. Pacella v. Bennett Medical College, 205 Il1.App. 324 (1932); Edde v. Columbia Univ.
of New York, 8 Misc. 2d 795, 168 N.Y.S.2d 643 (1957), cert. denied, 359 U.S. 956
(1958).
10 See Tanner, 363 N.E. at 208. This principle has long been in force; as early as
1723 the English courts recognized universities could not "give degrees to whom they
please, and take them away ad libitum." Rex v. Cambridge Univ., 8 Mod. Rep. 1418,
151 (K.B. 1723).
3' See supra notes 26-27 and accompanying text.
32 See supra note 25 and accompanying text. Cf. Slaughter v. Brigham Young Univ.,
514 F.2d 622, 626 (loth Cir. 1975), cert. denied, 423 U.S. 898 (1975) (some elements of
contract law are applicable in analyzing student-university relationship, but contract law
should not be rigidly applied in all its aspects).
33 A condition precedent is a fact or event which the parties to a contract intend
to take place before there is a right to performance. If the condition is not fulfilled, the
right to enforce the contract does not come into existence. 3 WILLISTON, A TREATISE ON
THE LAW OF CoNTRAcTs, § 663 (3d ed. 1961).
34 Id.
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[Vol. 14, No. 2
university's performance by the student's wrongdoing, such as fraud
or misrepresentation, rescission of the contract is an appropriate remedy, and the university can reacquire the degree the student wrongfully
35
procured.
In summary, a university's authority to revoke degrees is supported
by a logical extension of its conferral power, 36 by "black letter" contract
law,' 7 and by the precedential authority of Waliga (as well as Crook v.
Baker and Abalkhail v. Claremont University Center). 38 The procedures
a university must follow in exercising its authority to revoke, however,
implicate a number of different issues.
II.
CONSTITUTIONAL LIMITATIONS ON UNIVERSITY REVOCATION OF DEGREES
If a university has the authority to revoke a degree, do any constitutional considerations limit the exercise of this authority? The answer
is clearly in the affirmative. Although colleges enjoy great discretion
in deciding whether to confer degrees, 39 once the college grants the
degree its discretion in employing procedures to revoke the degree is
governed by due process guidelines. Crook v. Baker,40 the leading case
in establishing the substantive and procedural due process rights of
students threatened with degree revocation, demonstrates that courts
will scrutinize a university's revocation procedures to ensure that they
afford the degree recipient due process of law, as the fourteenth amendment to the Constitution requires.
In Crook, a graduate student at the University of Michigan's School
of Geology and Mineralogy wrote his masters thesis on a new mineral
he claimed to have discovered."' Two faculty members approved the
thesis and Crook received his masters degree.42 After the school con31 Rescission of a fraudulent contract and restoration of the situation which parties
to a contract occupied before the fraudulent action occurred is one of the remedies
available to a defrauded party. 12 WILLISTON, A TREATISE ON THE LAW OF CONTRACTS §
1523 (3d ed. 1961). The Sixth Circuit in Crook v. Baker noted the differences between
the revocation of a degree that has been granted and the rescission of a contract for the
sale of land. The granting of a degree by a university continuously certifies to the world
that the recipient has fulfilled the university's requirements and this continues until the
degree is revoked. 813 F.2d 88, 93 (6th Cir. 1987).
See supra note 31 and accompanying text. See also Uyidi v. Governing Council,
8 A.C.W.S.2d 121 (Apr. 3, 1981) (statute regulating Governing Council of University of
Toronto grants implicit jurisdiction over Council to revoke degree); Wojitas, "Copycat"
Student Loses Ph.D., The Times Higher Education Supplement, Aug. 8, 1981, at 5.
37 See supra notes 32-35 and accompanying text.
38 Waliga v. Board of Trustees of Kent State Univ., 488 N.E.2d at 853; Crook v.
Baker, 813 F.2d at 90 (1986) (court recognized authority to revoke); Abalkhail v. Claremont
Univ. Center, 2d Civ. No. B014012 (Cal. A.D. 1986), cert. denied, 107 S. Ct. 186
(1986)(court implicitly accepted authority to revoke).
39 See supra notes 29-30 and accompanying text.
40 813 F.2d 88 (6th Cir. 1987).
4 Id. at 95.
42 Id.
ACADEMIC DEGREE REVOCATION
1987]
ferred the degree, however, suspicion arose as to the authenticity of
Crook's discovery. 43 The university formed a panel to investigate Crook's45
data and results. 44 The panel concluded that Crook fabricated his data.
The Executive Board of the Graduate School recommended that the
university rescind Crook's degree6 upon which recommendation the
Board of Regents revoked the degree more than two years after its
47
conferral.
Crook challenged the revocation in federal district court claiming
the Regents lacked statutory authority to revoke academic degrees, and
that the sanction contravened the procedural and substantive protections
of the fourteenth amendment's due process clause.48 Assuming without
deciding that the university possessed the authority to rescind the
student's degree, 49 the district court held that the Regents' action
deprived Crook of his constitutionally protected property and liberty
5 1
interests5 0 in violation of due process.
In reversing, the United States Court of Appeals for the Sixth
Circuit criticized the district court's finding that Crook had been denied
both procedural and substantive due process. 52 The circuit court reviewed the procedural facts in detail. After receiving an allegation that
Crook fabricated data in his thesis, the Geology and Mineralogy department investigated and determined that Crook had not actually
carried out the electron microprobe-cum-computer analysis as represented in his thesis.u The department invited Crook to rerun his data
on a computer with an improved program. This Crook did in February
1979. Unknown to Crook, the computer on which he reran his data
was monitored by another computer which showed that Crook simply
put into the computer the data that he wanted back. 54 On being confronted with the attempted deception Crook admitted that his "results"
were not developed by the computer. The department concluded that
43
44
45
Id.
Id. at 96.
Id.
- Id. at 97.
47
id.
Crook v. Baker, 584 F. Supp. 1532 (E.D. Mich. 1984).
Id. at 1552. The court assumed that authority to revoke as it concluded the issue
of authority need not be decided to resolve the present case.
so Id. at 1553-55.
s, Id. at 1552, 1562.
52 The Circuit Court noted the personal feelings of the judge tended to confuse the
proceedings:
Many of these findings apparently were intended by the district judge to reflect
her feelings about this case and were not intended to be legally consequential
...
[T]he district judge takes occasion to make somewhat acerbic statements
about various University personnel who played a part in the revocation of
Crook's degree ....
in short, the statements are largely, if not totally, gratuitous.
48
49
Crook v. Baker, 813 F.2d 94 (6th Cir. 1987).
53 Id. at 95.
-~ Id.
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Crook's contention that he had discovered a new mineral, "texasite,"
was false and the data fabricated55
The dean of the graduate school sent Crook a letter setting forth
the departmental charges of fabrication of data in his thesis. The letter
announced the creation of an ad hoc disciplinary committee to hear
the matter. The committee consisted of four faculty members, of which
three were from the sciences or engineering disciplines, and a fifth
member from the school of law, serving as chairperson, who would
vote only to break a tie. No member of the committee was from Crook's
department. 56 Crook employed an experienced trial attorney to represent
him in the proceeding.
On June 20, 1979, the department filed with the committee more
detailed charges and supporting documents. Crook was given extra time
in which to respond. The hearing was held on September 22, 1979,
with the full committee, Crook, his wife, his parents, and his lawyer
present. A court reporter was also present and statements by those who
testified were sworn to. 57 The University was represented by its general
counsel and opening statements were made by the chair of the depart5
ment, the general counsel, Crook and his attorney.
Under the informal procedure of the committee, Crook could be
represented by counsel, but none of the parties could examine or crossexamine witnesses . 9 The committee asked questions and the entire
hearing took eight hours.6 0 The committee reported on March 7, 1980,
that the department had proven through clear and convincing evidence
that Crook fabricated his data.61 The committee did not recommend
what action should be taken.
On May 7, 1980, the executive board of the graduate school considered Crook's response to the committee report and unanimously
voted to recommend rescission of Crook's degree. The recommendation
was reviewed by the designee of the Vice President of Academic Affairs
who, on July 18, 1980, recommended that the Regents rescind Crook's
degree.62 On October 16, 1980, Crook's attorney argued his client's case
to the Regents. They voted to rescind the degree. Crook then took his
case to the courts. The United States District Court concluded that
Crook's master's degree was an important property interest and that
revocation implicated an important liberty interest. The district court
found that Crook was denied a due process right to notice and an
opportunity to be heard. 3
5, Id. at
56 Id.
"
"
60
"
2
96.
Id.
Id.
ild.
Id.
Id.
Id. at 97.
crook v. Baker, 584 F. Supp. 1531 (E.D. Mich. 1984).
C3
ACADEMIC DEGREE REVOCATION
1987]
In overturning the district court's conclusion that Crook did not
have notice, the United States Court of Appeals for the Sixth Circuit
reviewed the notice requirements of Goss v. Lopez,6 4 which held that
a student was entitled to "oral or written notice of the charges against
him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story."65
The court found that Crook had adequate notice, with evidentiary basis,
of the charge both through the letter of April 10, 1979, from the Dean
of the Graduate School and through the detailed statements served on
Crook on June 20, 1979.66
The court found that the hearing procedures provided Crook with
an opportunity to be heard. He had counsel present from the start; he
had the opportunity to file a response to the charges; he had the
opportunity to present witnesses and to have experts with him at the
hearing; his counsel was free to advise him; and he made statements
and questioned witnesses. Further, through his attorney, Crook filed
exceptions to the committee's findings and his attorney argued his case
67
before the Regents.
Counsel for both sides agreed in advance to the prohibition against
cross-examination of witnesses. The circuit court noted that, in academic hearings, cross-examination of witnesses is not required.6 8 It is
generally recognized that because academic decisions are made in
academic surroundings by committees of highly educated persons with
expertise in subject fields, they do not require cross-examination by
counsel. 69
The court also found that the University did not deny Crook
substantive due process. The record demonstrated that the faculty
decision to rescind the degree was made conscientiously and with
careful deliberation reflecting professional judgment. The evidence of
fabrication was so strong that the committee's determination was neither
arbitrary nor capricious, but rather was supported by clear and convincing evidence.70
In summary, Part I of this Article supports the proposition that a
university possesses the authority to revoke an academic degree when
good cause is shown. Crook further asserts, as reflected in Part II, that
an institution must provide the student with some due process before
revoking the degree, in order to safeguard the student's constitutionally
"
419 U.S. 565 (1975).
6sId. at 581.
Crook v. Baker, 813 F.2d 88, 97 (6th Cir. 1987).
-' Id. at 97-98.
68Frumkin v. Board of Trustees, 626 F.2d 19 (6th Cir. 1980) (procedural due process
right does not include right to have attorney examine and cross-examine witnesses in
academic proceeding).
68 Id. See also Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78
(1978).
,0Crook, 813 F.2d at 88.
292
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protected interests. Exactly what procedures due process requires, however, depends on whether the university considering revocation is
public or private.
HI.
PROTECTION AVAILABLE TO STUDENTS IN PUBLIC UNIVERSITIES
The fourteenth amendment provides: "No state shall . . . deprive
any person of life, liberty, or property, without due process of law...
The Constitution was designed to limit the exercise of governmental
power in the public sector, not to prohibit private individuals or private
universities from impinging on free speech, equal protection, due
process and other freedoms. Thus, a private university can engage in
private acts of discrimination, expulsion, and other actions against
students without offering procedural safeguards that are constitutionally
72
required of the public university.
Originally the fourteenth amendment was intended to limit the
power of the states. The United States Supreme Court expanded the
"state action" concept in cases such as the "White Primary" cases and
other racial discrimination cases in order to close obvious loopholes in
the case law.73 This perceived expansion of the state
action concept
74
was restricted in Jackson v. Metropolitan Edison Co.
Before a court will apply fourteenth amendment guarantees of
individual rights against a university, the court must determine that
the institution's action constitutes "state action" as required under the
fourteenth amendment. 75 The activities of a state-owned or state-operated university fall immediately within the state action doctrine, and
therefore, must adhere to fourteenth amendment due process requirements. 76 Private universities' actions usually avoid the "state action"
label so that these universities are not bound by the same due process
safeguards applicable to public institutions.
The U. S. Supreme Court, however, has not directly addressed the
state action issue in the university setting. Outside the university
setting, the Court has most recently addressed the state action issue in
amend. XIV, § 1.
7 Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). See generally, W. KAPUN, supra note
" U.S. CONST.
11, at 18.
7. See, e.g., Bell v. Maryland, 378 U.S. 226 (1964); Terry v. Adams, 345 U.S. 461
(1953); Shelley v. Kraemer, 334 U.S. 1 (1948); Smith v. Allwright, 321 U.S. 649 (1944);
Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927).
419 U.S. 345 (1974).
" U.S. CONST. amend. XIV, § 1.
For discussions of the state action doctrine, see Thigpen, The Application of
76
Fourteenth Amendment Norms to Private Colleges and Universities, 11 J.L. & EDuc. 171
(1982); O'Neil, Private Universities and Public Law, 19 BuFFA O L. REv. 155 (1969); Note,
Legal Relationship Between the Student and the Private College or University, 7 SAN
DIEGO L. Rsv. 244 (1970). See also Annotation, Action of Private Institution of Higher
Education as Constituting State Action, or Action Under Color of Law, for Purposes of
Fourteenth Amendment and 42 U.S.C.S. § 1983, 37 A.L.R. FED. 601 (1978).
19871
ACADEMIC DEGREE REVOCATION
a trilogy of cases: Rendell-Baker v. Kohn, 77 Blume v. Yaretsky, 7 and
Lugar v. Edmondson Oil Company. 79 The trio of cases divides state
action decisions into three categories:80 the delegated power category, 88'3
82
the public function category, and the government contacts category.
Courts have applied the government contacts category most frequently
to higher education state action questions.8 4 The government contacts
category exists where a private entity such as a university obtains
substantial resources, prestige or encouragement from its contacts with
the government.85 The following discussion examines the state action
doctrine and applies it to the university setting.
Under the government contacts category, state action issues can be
further subdivided into either the "symbiotic relationship" subcategory
or the "nexus" subcategory. The "symbiotic relationship" subcategory
requires the plaintiff to show that "the state has so far insinuated itself
into a position of interdependence with . .. [the private entity] that it
must be recognized as a joint participant in the challenged activity.' '86
The "nexus" subcategory requires that an "inquiry [be made into]
whether there is a sufficiently close nexus between the state and the
challenged action of the private entity so that the action of the latter
87
may be fairly treated as that of the state itself."
" 457 U.S. 830 (1982).
7- 457 U.S. 991 (1982).
'9 457 U.S. 922 (1982).
8oSee Kaplin, supra note 8, at 281-82.
81 See, e.g., Terry v. Adams, 345 U.S. 461 (1953). The delegated power category
exists where the private entity acts as an agent of the government in performing a
particular task delegated to it by the government.
82 See, e.g., Marsh v. Alabama, 326 U.S. 501 (1946). The public function category
generally arises where the private entity performs a function ordinarily considered the
responsibility of the government. In Marsh, the Court held that activities engaged in by
a company-owned town engaged the town in a public function which constituted state
action. Id.
83 See, e.g., Reitman v. Mulkey, 387 U.S. 369 (1967); Buton v. Wilmington Parking
Auth., 365 U.S. 715 (1961).
B4See Kaplin, supra note 8, at 282. Kaplin states that "[a]rguments based on a
'delegated power' theory are seldom litigated." Id. One exception to this statement is
Powe v. Miles, 407 F.2d 73 (2d Cir. 1968), where the court held that Alfred University
was acting as a delegate of the State of New York with respect to certain actions of its
ceramics college.
As to the public function arguments, they have generally failed when they have
been utilized in the educational institution setting. See generally, Annotation, supra note
76. Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423
U.S. 995 (1975), is one case representing this proposition. In Greenya, the court stated
"[W]e have considered whether higher education constitutes 'state action' because it is
a 'public function' as that term has been developed . .. and have concluded that it is
not . . . . [E]ducation .. .has never been a state monopoly in the United States." Id. at
561 n.10. But see State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed,
455 U.S. 100 (1982), where the court extended analysis to the public function theory.
85 See supra note 83.
88 Burton v. Wilmington Parking Auth., 365 U.S. 715, 725 (1961).
87Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).
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The latest United States Supreme Court decision applying the state
action doctrine to the educational setting, Rendell-Baker v. Kohn,88
used the government contacts test. In Rendell-Baker, a private school,
discharged teachers for opposing school policies. 89 The teachers brought
an action against the school alleging the discharges violated their free
speech and due process rights.90
Because the school specialized in treating students who had drug,
alcohol or behavioral problems, or problems completing public high
school, most of the students were referred by local public schools or
the state health department's drug rehabilitation division. 91 In addition,
the school received funds for student tuition from local public school
boards, and received reimbursement from the state health department
for services provided to students the department referred. 92 The school
was also subject to state regulation on various matters, many of which
are common to all schools, 9 3 and to requirements concerning services
provided under its contracts with the local school boards and the state
health department. 94 Few of these requirements, however, related to
policies concerning the hiring and firing of teachers.
Applying the government contacts theory, the Supreme Court held
that state action did not exist. 95 As to the sources of the school's
funding, the Court stated that the school did not differ fundamentally
from many private companies whose business depends on governmentrelated contracts. These private contractors' acts do not become governmental acts just because of significant, or even total, engagement in
public contract work. 96
The Court considered a second factor, government regulation, to
determine whether state action arose in Rendell-Baker. 97 The Court
reasoned that the state regulations involved in the case did not compel
or influence the decision to fire the teachers; private management made
that decision, without any governmental action. 98
The Court rejected the teachers' two principal contentions. First,
the teachers alleged that the school engaged in state action because it
performed a "public function." 99 In response, the Court stated that the
relevant question in a "public function" case is whether the function
'8 457 U.S. 830 (1982).
89
Id. at 834.
w Id. at 834-35.
9 Id. at 832.
o' Id. at 833.
9 The State had issued regulations concerning matters ranging from record keeping
to student-teacher ratios. As to personnel policies, the state required the school to maintain
written job descriptions and written statements of personnel policies and procedures. Id.
94
Id.
95 Id. at 840-42.
96 Id. at 840-41.
97
Id. at 841.
Id. at 841-42.
- Id.
ACADEMIC DEGREE REVOCATION
1987]
performed has been "traditionally the exclusive prerogative of the
State."' 100 In Rendell-Baker, the facts did not satisfy the public function
test, for although educating maladjusted high school students is a public
function, the Court determined a legislature's decision to pay for services does not make those services the "exclusive province of the
states."'10 Secondly, the teachers contended that the school maintained
a "symbiotic relationship" with the government because the government paid tuition and provided other funds to the school.102 The Court
responded that the school's financial relationship with the state did
not differ from that of many private contractors who perform services
for the government, so no symbiotic relationship existed in the case at
bar.103
Rendell-Baker appears to represent the trend in state action litigation involving public post-secondary institutions. 0 4 The case protects
many university activities from federal constitutional restraints. This
protective barrier, however, is surmountable. If the government is
directly involved in the challenged activity,' 10 5 or if government officials
are members of or support an institution's board of trustees, the symbiotic relationship test could be met, thus erecting a number of constitutional due process requirements. 10 6
What specific constitutional requirements need to be met was a
key issue in Crook v. Baker. 10 7 After determining that the Regents of
the University of Michigan had the authority and power to revoke an
academic degree," °8 the court turned to the question of the "quantum"
of process due, or the procedural requirements that must be observed.10 9
,o Id. at 842 (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974)).
(Emphasis added).
10 457 U.S. at 842.
02
Id.
10,Id.
at 843. See also Litka v. University of Det. Dental School, 610 F. Supp. 80
(E.D. Mich. 1985). In Litka, the court dismissed the plaintiff's due process and equal
protection claims because the plaintiff failed to show the presence of state action. The
plaintiff asserted that state action was present because the defendant school received
funds and operating expenses from the State of Michigan. The court rejected this argument
stating that the defendant was a private institution and that "the mere ,,act of receiving
state funds is not enough governmental involvement to constitute state action." Id. at
81 n.1. See, e.g., Foster v. Ripley, 645 F.2d 1142 (D.C. Cir. 1981); Payne v. Government
of D.C., 559 F.2d 809 (D.C. Cir. 1977); Spark v. Catholic Univ. of Am., 510 F.2d 1277,
1282 (D.C. Cir. 1975).
104 See Kaplin, supra note 8, at 280, 284.
, See Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).
,06 For example, in Rendell-Baker, had the state been an active participant in
developing the personnel dismissal policies, or had state regulation compelled dismissal
for first amendment practices, then state action might have been found.
107 813 F.2d 88 (6th Cir. 1987). See also Waliga v. Board of Trustees of Kent State
Univ., 22 Ohio St. 3d 55, 488 N.E.2d 850, 853 (1986) (constitutionally adequate procedures necessary to revoke degree).
08 Id. at 10.
-9 Id. See, e.g., Morrisssey v. Brewer, 408 U.S. at 481 (1972) ("[DJue process is
flexible and calls for such procedural protections as the particular situation demands.").
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JOURNAL OF COLLEGE AND UNIVERSITY LAW
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The court determined that the district court had erred in extending
extensive procedural safeguards to students accused of wrongfully obtaining degrees.11o Crook specified various procedural due process safeguards which must be afforded a degree recipient prior to revoking the
degree.1' Notice and an opportunity to be heard, the court said, is the
absolute minimum process due whenever the due process clause is
applicable.112 The right to effective representation by counsel, if requested by the student, is permissible in order to prevent prejudice to
the accused's rights, and to make effective the right to be heard.11
However, the right of cross-examination is not required in informal
academic administrative hearings.1 4 Crook also required that students
be given the opportunity to present evidence to the decision maker,
because this is important for showing a student's credibility and truthfulness to the decision maker.115 That decision maker must be impartial
and this can be accomplished with a hearing panel of distinguished
faculty not directly related to the accused's department.116 Finally,
substantive due process requires a rational basis for the rescission; this
can be accomplished by clear and convincing evidence of fabricated
data or other evidence of wrongdoing. 7
The Crook court concluded that the University met these procedural
requirements, and therefore determined that the Regents had the authority to revoke the degree."" In Crook, the university involved was
public, thus triggering the applicability of due process procedural
safeguards. Does it follow then that a private university whose conduct
Id. at 20.
"'
Id.
Id.
Id.
114 Id.
s Id.
Id.
,17 Id.
112
at 17.
at
at
at
at
at
at
17-18. See, e.g., Goss v. Lopez, 419 U.S. 565 (1975).
18.
19. See, e.g., Frumkin v. Board of Trustees, 626 F.2d 19 (6th Cir. 1980).
21.
22.
23. See, e.g., Regents of the Univ. of Mich. v. Ewing, 106 S. Ct. 507, 513
(1985):
When judges are asked to review the substance of a genuinely academic
decision, such as this one, they should show great respect for the faculty's
professional judgment. Plainly, they may not override it unless it is such a
substantial departure from accepted academic norms as to demonstrate that the
person or committee responsible did not actually exercise professional judgment.
-5 Id. at 26. See, e.g., Mathew v. Eldridge, 424 U.S. at 335 (1976):
[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.
See also Mahavongsanan v. Hall, 529 F.2d at 449 (5th Cir. 1976) (university official
revoked academic degree which district court required be granted when appeals court
found neither substantive nor procedural due process was denied).
19871
ACADEMIC DEGREE REVOCATION
does not constitute state action need not provide procedural safeguards
to students faced with degree revocation? As discussed in the next
section, the answer is not entirely clear.
IV.
PROCEDURAL PROTECTIONS AVAILABLE TO PRIVATE UNIVERSITY
STUDENTS
Whether the procedural protections which must be afforded to
public university students facing degree revocation apply to students
at private institutions has received little judicial attention. 119 Several
theories appear applicable, however, thus ensuring a private university
student some procedural protections.
The state action doctrine, while appearing to provide a basis for
some protections, is of limited applicability in the private university
context. It is generally recognized that the receipt of state and federal
financial assistance does not constitute state action. Some greater nexus
between the state and the challenged conduct is required. The absence
of "state action," in the private university context is illustrated in the
leading case of Cannon v. University of Chicago.120
In Cannon, the female plaintiff who had been denied admission to
two private medical schools brought suit, charging the schools with
age and sex discrimination.' 12 The Seventh Circuit Court of Appeals
held it lacked jurisdiction because no state action existed, and therefore,
gave judgment for the universities. 122 In reaching this conclusion, the
court used the "nexus" test, which requires a nexus between the state
and the challenged conduct for the court to find the existence of state
action.' 23 The court failed to find a sufficient nexus. Stating that state
action depends upon both the amount of state fiscal assistance as well
as the type of injury alleged, the court found no state connection to
the injury alleged nor any indication of state influence on the private
universities' admissions decisions." 24 The court, therefore, decided not
to divest the schools of their private character. 125 Moreover, the Cannon
court stated, even had the state provided extensive financial assistance,
no state action could be shown absent state affirmative support of the
conduct challenged.126
11 The only case directly on point is the unpublished opinion in Abalkhail v.
Claremont Univ. Center, 2d Cir. No. B014012 (Cal. A.D. 1986), cert. denied, 107 S. Ct.
186 (1986).
'" 559 F.2d 1063 (7th Cir. 1976), rev'd on other grounds, 441 U.S. 677 (1979).
...Id. at 1067.
"I Id. at 1071.
121Id. at 1070. See supra text accompanying note 80.
12.Id.
125 Id.
121Id. at 1071. See also Fredericks v. Washington Univ., No. 79-131C(3) (E.D. Mo.
1979). In Fredericks, a dental student brought suit against the university for wrongful
dismissal, and violation of his due process rights. Id. at 1. The court explained that
298
JOURNAL OF COLLEGE AND UNIVERSITY LAW
[Vol. 14, No. 2
Lacking a state action basis for claiming procedural safeguards,
private university students may assert other grounds for obtaining
procedural protections. As the Waliga court turned to the common law
to find the authority of a university to revoke a degree in its authority
to confer degrees,127 one may reasonably assert that common law theories employed in conferral and dismissal cases apply to revocation
cases as well. A significant factor in these cases is whether the university maintains and follows fair procedures in determining what
action to take against a student. 128 Fair procedures that the university
follows appear to receive judicial deference. 129
In one of the earliest and broadest views of academic procedural
requirements in a private university context, Anthony v. Syracuse
University, decided in 1928,130 a New York appellate court upheld the
university's dismissal of a student although university authorities gave
no specific reason for the dismissal other than stating that they did hot
think she was a "typical Syracuse girl.' 3' Relying on the contract
between the institution and the student, the court stated that as long
as the reason fell within the university's dismissal policies or regulations, the school need not give a reason for its action. 132 In this case,
the student was simply advised of her dismissal by officers of the
university. No formal hearing was held. The court then deferred to the
university officials' discretion in determining whether a student's dis33
missal fell within university regulations.
Judicial deference to a private university's discretion is no longer
quite so broad. In a more recent case, Carr v. St. John's University,
New York,1 4 the state appellate court, again relying on the implied
contractual relationship between student and college, limited Anthony
by holding that a private university could not act arbitrarily, but must
exercise "an honest discretion based on facts within its knowledge that
justify the exercise of discretion."' 3 9 Another New York court restated
this standard in Kwiatkowski v. Ithaca College, 3' ruling that a college's
decision to discipline a student must be "predicated on procedures
which are fair and reasonable and which lend themselves to a reliable
constitutional due process provision apply solely to "state action," which was riot present
here. Id. at 2. The court noted that even had plaintiff proven general state financial aid
to and state regulation of this private university, this would not constitute state action
unless it was directly related to the university's decision to dismiss plaintiff. Id. at 7.
127 See supra note 24 and accompanying text.
118See, e.g., Abalkhail v. Claremont Univ. Center, 2d Cir. No. B014012 (Cal. A. D.
1986), cert. denied, 107 S. Ct. 186 (1986).
,29Id. See also infra notes 130-137 and accompanying text.
1" 224 A.D. 487, 231 N.Y.S. 435 (1928).
'
Id.
Id.
Id.
134 17 A.D.2d 632, 231 N.Y.S.2d 410 (1962).
M 231 N.Y.S.2d at 414.
36 368 N.Y.S.2d 972 (Sup. Ct. 1975).
'3'
ACADEMIC DEGREE REVOCATION
1987]
determination.'
1
37
Both cases support judicial deference to the univer-
sity's decision when the university's decision is made in good faith
and in accordance with basically fair procedures.
In Slaughter v. Brigham Young University,13 the Tenth Circuit
went beyond mere deference to university decisions, to suggest that
procedural protections for private university students should parallel
the protections available to public university students. In Slaughter,
the university dismissed a student for violating the student code by
making unauthorized use of a professor's name as coauthor of an article
the student submitted for publication. 1 39 In upholding the university's
decision, the court scrutinized the standards and procedures by which
the student was dismissed. The court tested whether the university's
action was arbitrary by re-examining both the adequacy of the procedures used and the evidence supporting the university's action. 140 The
court used constitutional due process as a guide in determining the
adequacy of the private university's measures. 14 1 The court concluded
that the procedures followed by the university met the requirements of
constitutional due process as applied to public universities, 42 and
commented that under the circumstances of the case at bar, no need
existed "to draw any distinction, if there be any, between4 3the requirements in this regard for private and public institutions."
The latest case on the revocation of academic degrees also found
existing university procedures adequate to protect the former student
faced with revocation of a degree. In Abalkhail v. Claremont University
Center,14 4 the private university granted the plaintiff a Ph.D. degree in
1979.145 The following year suspicion arose as to the originality of the
doctoral thesis. 14 The university did not have a standing committee or
regulations for the investigation of post-degree-conferral charges, but
the university appointed an investigative committee and implemented
procedures to determine whether revocation was warranted. "7
The procedures utilized were extensive. After receiving the investigative committee's report that academic dishonesty may have occurred, the dean of the graduate school which granted Abalkhail's
degree informed him of the procedures thus far performed, and gave
him notice of the formal hearing to be held and the procedures to be
ld.
I37
38
514 F.2d 622 (10th Cir. 1975).
131
Id.
10
Id.
at 624.
at 625.
.. Id. at 625-26.
12
Id.
13
Id.
14
2d Civ. No. B014012 (Cal. A.D. 1986), cert. denied, 107 S. Ct. 186 (1986).
15
Id. at 2.
at 625.
146 The
University received a communication in 1980 that the thesis contained
material copied from another author's paper. Id.
"'
Id. at 3.
300
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[Vol. 14, No. 2
used. 14 At the hearing, which was recorded, Abalkhail received a copy
of the letter of complaint instigating the proceedings, and was afforded
an opportunity to present his views in the matter. 149 Abalkhail was
permitted to question a witness and was asked to suggest any additional
150
procedures he deemed necessary to ensure a fair hearing.
The committee met with Abalkhail again, at which time he was
apprised of additional evidence in the matter and allowed to give an
explanation.'1' Thereafter, a committee member twice wrote Abalkhail,
informing him of the evidence against him and inviting him to respond
by a set date.152 The committee then concluded Abalkhail plagiarized
substantial portions of his thesis, and recommended revocation of his
degree.1 3 The university accepted the recommendation, revoked the
degree, and notified Abalkhail of its action. 5 4 Abalkhail brought suit,
alleging deprivation of due process protections and lack of a fair
5
hearing.1
5
The California Court of Appeals upheld the university's action. The
court first noted that an educational institution's decisions are subject
to limited judicial review because educators are uniquely qualified to
evaluate student performance.156 Therefore, the court stated, only an
abuse of university discretion would cause the court to set aside the
7
university's decision.1
No such abuse of discretion occurred in Abalkhail. The court found
that the plaintiff was entitled to procedural fairness, because revocation
of a degree constitutes deprivation of a significant interest, but was
entitled only to limited due process-the "minimum requisites of procedural fairness."'18 Positing that the sufficiency of particular procedures depended on the facts and circumstances of each case, the court
found that Abalkhail received adequate notice of the charges against
- Id. at 4-5.
19 Id. at 6.
"'
Id. at 6-7.
Id.
Id.
"'
Id.
, Id.
Id.
116 Id.
"'
at 9.
at 10-11.
at 11-12.
at 12.
at 13.
Id.
Id. at 15. See, e.g., Pinsker v. Pacific Coast Soc'y of Orthodontists, 12 Cal. 3d
541, 526 P.2d 253 (1974) (A society with a public interest is subject to the common law
fair procedure requirement in which applicant receives notice and is given a fair
opportunity to defend himself.); Anton v. San Antonio Community Hosp., 19 Cal. 3d
802, 567 P.2d 1162 (1977) (The common law requirement of a fair procedure does not
compel a non-profit group to provide formal proceedings with all the embellishments of
a trial court.); and Ezekiel v. Winkley, 20 Cal. 3d 267, 572 P.2d 32 (1977) (A non-profit
corporation must afford the accused some rudimentary procedural and substantive fairness
including adequate notice of the charges against him and a reasonable opportunity to
respond. Formal trial-like proceedings are not required.).
1987]
ACADEMIC DEGREE REVOCATION
him, of the possible consequences, and of the procedures to be used.15
These procedures, the court concluded, afforded Abalkhail fair notice,
to present his position, and, on the whole, a
and a fair opportunity
160
fair hearing.
In summary, although private universities are not required to afford
the complete package of constitutional due process protections, courts
expect private universities to provide some minimal procedural protection to ensure at least fundamental fairness in decisions to revoke
academic degrees.
CONCLUSION
While judicial authority concerning revocation of degrees is conspicuously lacking, the issue is important and probably subject to
increased judicial attention in the future. Until such judicial refinement
takes place, the issues involved and the present state of the law appears
as follows.
Clearly, both public and private universities possess the authority
to revoke degrees already conferred. This authority is based on both a
logical extension of the authority to confer degrees, and a reasonable
application of contractual principles.161
The procedural protections a university must afford students faced
with revocation, however, depend upon the public/private dichotomy.
In a public institution, revocation proceedings must meet the standards
imposed by the federal constitution, including procedural and substantive due process. 6 2 In the private university context, however, the state
action doctrine precludes the judicial requirement of the full due
process safeguards public universities must afford. While some cases
have demonstrated judicial deference to the decisions of universities, a
trend appears to be developing in which courts require private universities to provide procedures at least similar to those required by the
due process clause. 163 Protection may be sufficient if the university's
procedures are basically fair and the student receives adequate notice
of the procedures.
Are separate procedural frameworks justified by the public/private
distinction? The answer probably varies with one's perspective. From
a student's view, differing standards make little sense. Whether a
student attends a public or private institution, a potential loss of the
degree conferred is a matter of great importance. Any student would,
therefore, desire all possible procedural safeguards to ensure that a
degree revocation is truly justified. From the university's viewpoint,
,s Id. at 16-18.
'
Id. at 21.
161 See supra notes 12-38 and accompanying text.
"I See supra notes 39-70 and accompanying text.
163 See supra notes 71-160 and accompanying text.
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an inconsistency in procedural frameworks is also questionable. Public
institutions surely object to having to implement more extensive and
more expensive safeguards than their private counterparts.
The dichotomy is perhaps best justified from the judicial perspective. Courts see state action when public universities make decisions,
and no state action when private institutions act, and can justify
differing procedures by the applicability of the due process clause only
where state action appears. Courts may also justify the distinction on
the ground that required procedures for both public and private university procedures, while not identical, are at least perhaps congruous,
and afford fundamentally fair protection.
A final area yet to be addressed in rescission cases involves student
rights under state constitutional provisions, relevant state statutes, state
administrative regulations, or state common law. In certain jurisdictions
these sources may provide a sound basis for arguing the student's
position especially against a private university. 6 4 It is hoped that the
future will bring some judicial pruning of this thicket of issues, so that
a cogent body of law on the revocation of academic degrees may grow
straight and true.
Lastly, all universities and their faculties should heed the dictum
in Crook v. Baker that close faculty supervision and proper mentor
oversight and review in the research process could avoid such unfortunate occurrences: "[Wihile the Department ... must assume its
graduate degree candidates to be honest, this unfortunate occurrence
might not have happened if the department had exerted somewhat
closer oversight over its graduate students and more care in reviewing
their theses."165
'
See, e.g., Board of Regents v. Roth, 408 U.S. at 577 (1971). The court stated:
"Property interests . . . are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law-rules or understandings that secure certain benefits
and that support claims of entitlement to these benefits." See also Cleveland Bd. of
Educ. v. Loudermill, 105 S. Ct. 1487 (1985) (property interests protected by due process
are created and defined by independent source such as state law).
16 Crook v. Baker, 813 F.2d at 101 (6th Cir. 1987).