University of Texas Medical School at Houston v. Than

examination, subjective neverthe requires a

lеss, recognized certain factors have been voluntary determining under the courts unemployment. Some of employment and education, Giangrosso, include these factors 770, economic adversities S.W.2d Finch, reversals, v. business Finch (Tex.App. [1st Dist.] S.W.2d 218 — Houston writ), background and business earning potential. Thompson, 827 S.W.2d at 568. trial court’s determination that

We find the underemployed sup- appellant was to be by the record and the trial court ported guidelines set out properly followed Family all of the Texas Code. We overrule appellant’s points of error. appellant’s not reach

We need seven which seeks a remittitur. We error judgment. affirm the trial court’s AFFIRMED. OF TEXAS MEDICAL UNIVERSITY Low, HOUSTON, SCHOOL AT M. David M.D., Ribble, M.D., Appellants, and John THAN, Appellee.

Allan No. 01-93-00199-CV. Texas, Appeals Court of (1st Dist.). Houston 1994. Rehearing May Denied

841 Keller, Morales, Pryor, Mary F.

Dan Will Barnes, appellants. for Jorge Vega, Leo L. Coane, Joyce Keating, Hous- A A Bruce ton, appellee. for OLIVER-PARROTT, C.J., and

Before HUTSON-DUNN, JJ. WILSON

OPINION

WILSON, Justice. University of Texas Medical School (the Low, M.D., School), Houston M. David Ribble, M.D., appeal from the and John injunction grant permanent obtained of a Than, by Allan a student at the them trial, or- After a bench the court School. (1) to, things, among other dered the School assigned an “F” remove from Than’s records (2) exam, surgery grade him a on a as show- remove from his records all documents ing expulsion from the and all Than’s cheating evidencing charge documents (3) School, treat leveled at standing graduated good as a student who responding requests for information when potential residency programs and em- from (4) diploma and all ployers, and issue Than a necessary participation his documents residency programs. We affirm. Summary

Fact 22, 1991, Than, third- February then a On School, at the sat with year medical student for a National Board some of his classmates (NBME) exam sur- of Medical Examiners by proctors. gery. supervised The test exam, proctors ob- During the two looking in di- repeatedly served Than stu- answer sheet of another rection dent, reported Chiang. proctors Ted McNeese, Margaret to Dr. their observations Affairs. Dean for Student the Associate Chiang’s sent Than’s Dr. McNeese statistical to the NBME test results analysis. Kelley eventually respond- disposed of the NBME The contract claim was ed, regarding but letter by summary judgment. his was inconclusive probable whether it was that Than had court, The case was removed to federal cheated. temporary where Than obtained a restrain- On March Dr. McNeese informed Than allowing order him to continue his stud- that he was accused of on the exam. ies. The case was then returned to state court, and Than March granted temporary She met on order to where Than order, and, charge. any wrong- restraining discuss the denied on November doing. injunction. temporary tempo- rary injunction complete allowed Than to April In a Dr. letter dated pending medical education a decision on formally McNeese advised Than that he was injunction. permanent whether to issue a charged committing with “academic dishon- esty” School, Low, during ap the NBME exam. The letter The Dr. and Dr. Ribble pealed temporary injunction. informed Than that the on the grant of the charge dishonesty argument appeal, of academic be held in Prior to oral Than 18, April contempt on 1991. asked us to find the School for alleged temporary injunc violation of the himself, represented At the Than tion that occurred when the School refused represented and Dr. McNeese the School. professional to submit a certificate of edu evidence, parties introduced examined University Virginia cation to the of Health witnesses, engaged argument. in oral accepted for Science Center. Than had been Russell, Dr. Yvonne the Assistant Vice Presi- there, residency a and the certificate Affairs, dent for Student served as necessary temporary for his licensure as a officer. Dr. this Russell was selected for Virginia re medical resident. We entered position by the School. orders, requiring medial to allow the School participate graduation proceed Than 28, On Dr. Russell issued her deci- ings requiring him a but not it to issue sup- sion. found She sufficient evidence diploma ceremony, at the our and reserved port charge of and recom- ruling contempt until the the motion for expelled. mended that Than be Than’s appeal temporary submission of the grade changed on the NBME exam was from injunction. University Texas Medical See a “B” to an “F” and he was from of dismissed (Tex. Than, 422, 423-24 School v. 834 S.W.2d school. writ) 1992, App. [1st Dist.] — Houston counsel, legal the assistance of Than With (Than I.). Low, appealed expulsion to Dr. who injunction upheld temporary We University of President of the Texas Health contempt. for denied Than’s motion See 9,May Science Center at Houston. On Than, University Texas School v. Medical Ribble, a letter Dr. Dean of received from of 425, (Tex.App. [1st 834 S.W.2d 432 School, informing him that he could not — Houston writ) II). (Than 1992, no On June Dist.] participate clerkships clinical at the emergency an amended mo Than filed “reverse[s] School unless and until Low contempt tion for in the trial court. On June the decision of the officer.” Dr. Low the trial court found the defendants upheld expulsion. Than’s contempt and to issue the ordered School May On Than filed suit certificate. Low, School, Claiming and Dr. Ribble. sought relief. The defendants mandamus right that his to due had been violat- denied their writ of mandamus. See We ed and that the School had breached a con- v. him, University Texas Medical School sought temporary tract with of O’Neill, (Tex.App.— permanent injunctive No. 01-92-00665-CV relief. He asked the Dist.], 30, 1992, orig. pro [1st to reinstate him. Houston June court order the School then The standard of review ceeding) (unpublished). The School stay emergency filed a and motion motion deciding point, “no evidence” we in the to file writ mandamus leave only the and inferences consider grant Supreme of Texas. court Court That light, in their most favorable viewed stay, emergency ed motion for the School’s finding. Lester Goodson support tend to contempt order ordering that the trial court’s (Tex. Elliott, 395, 398 Pontiac v. 775 S.W.2d stayed pending “is further order ordered denied). 1989,writ App. [1st Dist.] — Houston University See Texas Medi Court.” disregard all evidence and inferences to We O’Neill, Tex.Sup.Ct.J. cal v. contrary. probative Id. If there is evi (July 1,1992). stay moved to have dence, scintilla, support than a more lifted; supreme court denied relief. See finding, “no be evidence” will over University Texas Medical School 1992). Id. O’Neill, ruled. Tex.Sup.Ct.J. (July stay court noted that its order “does not preclude pre-trial discovery or trial on the grant permanent in Whether merits.” See id. junction is within the sound discretion trial court. Isuani v. Ra Manske-Sheffield was tried the bench from case before (Tex. 602, diology Group, 805 606 S.W.2d 31, 2 until October 7. October On December denied). 1991, App. ap writ On — Beaumont supreme stay the court lifted the con- its of peal, of the trial action is review court’s tempt again Than urged order. his motion usually action was limited whether the court, for contempt, but the trial after a abuse of that discretion. Id. at 606-607. 8, January 1993, hearing on to en- refused contempt force order. its prelimi- presents Point of error one two (1) nary questions: Than entitled due Was 11, January signed On the trial court (2) so, process in first If place? the what permanent injunction in As favor of Than. process due? to, above, noted the court ordered the School (1) among things, other from Than’s remove assigned grade

records an “F” to him as a process? Than due 2. Was entitled to (2) exam, a surgery his remove from records 565, Lopez, In v. 95 Goss 419 U.S. S.Ct. showing all expulsion documents from Than’s (1975), 729, 42 L.Ed.2d 725 the United States evidencing School and all documents following Supreme Court made the observa charge cheating by of leveled at (3) School, grad- treat Than as a tion: student who standing good responding

uated in when of the landmark decision the Court Since requests residency pro- for information from Appeals of for the Fifth Circuit Dixon v. (4) grams potential employers, issue Education, Alabama State Board diploma nеcessary and all documents 150, denied, 930, cert. 368 U.S. F.2d participation residency programs. (1961), 368, 7 S.Ct. L.Ed.2d 193 lower error, In points chal- three uniformly federal courts have held Due lenge injunction. permanent applicable to Process Clause decisions by tax-supported educational institu made Point of I Error to remove a from the institu tions student enough long tion for the removal to be appellants’ first of error is as an expulsion. classified as follows: 8, at 576 n. at 737 n. 8. An 419 U.S. 95 S.Ct. law, As a matter of the trial court erred example v. Missouri State is Esteban Central process finding that Than was denied due Cir.1969). (8th F.2d College, 415 support no because there was at defendant col- two students the conclusion that Than was denied Esteban* out of two lege put school for semesters required in disci- process due an academic (with right apply for pline thereafter to read- context. mission) unruly for their involvement cam- arises in a academic context.” This asser- tion, however, pus speaks demonstrations. backdrop Id. 1079-80. The to the Eighth cheating, act of college Circuit held while “a has the nature of the act is, nature, power properly discipline,” the inherent itself. The act of it “procedural dishonest and deceitful. It is to achieve a is also true that due it, duly grade, becoming entitled to afforded[.]” must be Id. at 1089. by representing but to the institution that This Court has federal au followed expressed on an answers exam came recognized thorities on the issue. We have knowledge, from the student’s own bank of that, when a student is dismissed from a they insidiously. when fact were obtained university, requirements proce state Cheating is a misdeed. See, II, process apply. e.g., dural due potential consequence A of a 425; misdeed Wolf, 834 S.W.2d Eiland v. 764 S.W.2d However, punishment. it is not 1989, a misdeed to (Tex.App.—Houston writ [1st Dist.] denied) (dismissal unsatisfactorily perform at one’s studies or University from of Texas Galveston); activities related to those studies. It is this University Medical Branch at satisfactory performance want of that leads 685, Houston v. 676 S.W.2d 687-88 Sabeti writ) to an academic dismissal. Academic dismiss- (Tex.App.—Houston [1st Dist.] (“Attendance al did occurs when the student not achieve university at a state is an inter minimum standards which the stu- protected by est the due clause of profession amendment[.]”). practice dent’s fitness to the fourteenth preparing which he or she is are measured. procedural pro Than was entitled to See, e.g., Regents Michigan Univ. cess here. “Once is determined that due Ewing, 474 U.S. 106 S.Ct. process applies, question the ‍‌​​​​​‌​‌​​‌‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌‌‌‌​​​​​‌​​​​​​‌‍remains what Horowitz, (1985); 88 L.Ed.2d 523 435 U.S. at Goss, 577, process is due.” 419 U.S. at 95 90, case, 98 S.Ct. at 955. such a dismissal Brewer, (quoting at Morrissey S.Ct. 738 punishment; discarding not is is as unfit. 471, 481, 2593, 2600, 408 U.S. 92 33 S.Ct. misdeed, however, punitive. Dismissal for a is (1972)); Than II, L.Ed.2d 484 see also 834 disciplinary, is It therefore not aсademic. A S.W.2d at 430. now turn to that issue. We dismissal for the misdeed of is a disciplinary dismissal.

3. What was Than due? holding, Having made that we now question The answer to this turns on process requires consider what due when a whether Than’s dismissal was for an aca disciplinary student is dismissed for reasons. disciplinary demic reason or a one. See charges, Notice of the notice of the evidence Board Curators Univ. Missouri v. student, against to be used the and a Horowitz, 435 U.S. 98 S.Ct. Eiland, 833; required. are 764 S.W.2d at (1978); Eiland, 55 L.Ed.2d 124 764 S.W.2d Esteban, 689; see 676 S.W.2d at 415 Sabeti A at 833. dismissal for academic reasons F.2d at 1089. “The due clause re stringent procedural “calls for far less re fairness; quires only fundamental it does not quirements” disciplinary than a dismissal for every dispute government require that with a Horowitz, reasons. 435 U.S. at S.Ct. agency be resolved as a lawsuit would be.” 953; Eiland, see also 764 S.W.2d at 833. regula at 689. “[S]chool 676 S.W.2d Sabeti tions are not to be measured the stan II, In Than held that Than’s dismissal we prevail dards which for the criminal law and disciplinary. at 430. The S.W.2d Esteban, procedure!.]” for criminal F.2d however, argue, that now the rea- only “[C]ourts at 1090. should interfere dismissal, cheating, son for Than’s is aca- is a clear case of constitutional where there nature, disciplinary. demic infringement.” Id. first consider wheth We requirement disagree. acknowledge appel- complied with the We We er charges. position cheating on of notice of the “[a]ll lants’ that exams charges against during He was told who had 4. The notice of the the exam. provided (despite asking), or accused him Than Furthermore, he any specifics whatsoever. appellants challenge the trial court’s attorney for the not to obtain an was advised to confront findings that School failed because, attorney part with an charges him in a man- Than with involved, years.”2 drag out for “it could timely by process stan- ner that was April McNeese In a dated letter following dards. The record reflects the evi- charged he was with com- advised Than that on this issue. dence during the mitting dishonesty” “academic The letter informed NBME exam. took on the NBME exam Feb charge of academic that ruary learned of the The School April dishonesty be on 18. While exam, alleged cheating during incident that wit- letter “at least two informed proctors when the witnessed the event and you re- testify they that saw nesses will informed Dr. McNeese. The School’s rules peatedly looking paper at the of another test provide that: student,” wit- it did not state who the two suspects cheating proctor during If a an give identity or of “another nesses were examination, will schedule meet- he/she student.” ing that student after examina- with letter, he After Than received the suggested meeting It is tion. began potential who to contact witnesses person, possible include another [sic] testify regarding seating positions could Director, Course to serve as a witness. time, however, stu- By these exam. faculty A has member who forgotten they where had sat dur- dents had cheating during student exami- ing the he had sat exam. One asserted that approach nation session will the student Than, behind so Than called him as a witness and escort outside the examination him/her testify seating regarding at the room. The student must surrender his/her position. during the hear- It was determined paper personal of a items not he memoiy about where the witness’ suspected aiding nature student during An- had sat the exam was mistaken. cheating []. his/her thought sat other had also witness who he well; wrong, to behind turned out be as undisputed It is did not com- actually, had sat beside him. he ply these with rules.1 not charge Than was informed of the of hard rules are no and fast “There exam, days until 18 after on notice.” Nash meaningful which measure 12, during (11th Univ., meeting 655, March a with Dr. v. Auburn 812 F.2d 661 however, notice, Cir.1987). Rather, The of process McNeese. consisted notice must due being only told that someone had to the of the case.” “appropriate be nature Loudermill, 470 v. Cleveland Bd. Educ. in cheating” “turned me or accused me of with, case, of, cognizant agree right 1. In another Texarkana We are and the rule counsel. Lewis, 727, university’s Indep. a failurе to follow its own rules 735 v. S.W.2d Sch. Dist. 470 regulations per 1971, writ), is se violation due and (Tex.Civ.App. one — Texarkana Texas, process. University See Levitt 759 v. (there separate opinions) justice three (5th II, Cir.1985); 1230 834 F.2d right high school wrote that a student has (Dunn, J., dissenting). at 436 5.W.2d be appear matter to him to counsel "should the gravity legal de to make assistance of sufficient Sabeti, S.W.2d 2. we observed in 676 at As do not the issue sirable[.]” While we address case, Esteban v. Missouri State Col one Central right dis counsel at the whether Than had (W.D.Mo.1967), F.Supp. lege, 277 651-52 by the not raised missal because d, Cir.1969), (8th F.2d 1077 held that due aff necessary disposition parties of this to our or requires present process that counsel be to advise case, Sabeti, we do either not endorse as in Circuit, hearing. Eighth at a how a student ever, holding. Esteban, affirming in did not address the 532, 542, 1487, 1493, U.S. 105 S.Ct. 84 him allegedly how he had look- cheated — (1985) L.Ed.2d 494 (quoting paper Mullane v. on Cen- of another student —but no Co., subject. case, tral Hanover Bank & Trust more on the U.S. where 306, 313, seating position 70 S.Ct. 94 L.Ed. 865 was the critical issue on the (1950)). sufficiency of due matter of whether Than during no- cheated exam, timely judged tice “must be light notice to Than was essential so parties, subject potential that he could matter and contact the circum- witnesses Thomas, they forgot seating his favor before Ferguson stances involved.” details (5th Cir.1970). that to completely unimрortant, them were F.2d but which to Than were critical.3 In this transcription As the makes case, then, due “notice of the clear, the crucial regarding issue whether charges” called for more than the School seating Than cheated on posi- the exam was provided. The School should have told Than theory tion. The School’s was that Than had days earlier than 18 after the exam that he looked several times at the answer sheet of a cheating, was accused of and earlier than 41 left, student seated in front of him to his days allegedly after the exam how he had copied had answers paper. from that An Considering subject cheated. “the matter obviously necessary component theory of this involved,” and the circumstances the School’s is that Than could see that student’s answer charges constitutionally notice of the sheet, enough just and that he was close untimely. it, by April to see but to read it. Even Nash, Relying appellants argue however, kept the School the other student’s charges their notice to Than of the was time- identity By from Than. the time Than re- case, ly. In that suspend- two students were ceived the 4 letter and learned that veterinary ed from school for academic dis- seating position, and thus where he could see honesty. disciplin- 812 F.2d at 656. After a see, key and couldn’t was a issue ary hearing, a student board unani- voted matter, possibly the witnesses that could mously that guilty the accused students were have forgotten testified his defense had they suspended recommended that be regarding critical details who sat where in from school opportunity apply with the the exam. This fact was demonstrated again year. admission in one Id. at 658. hearing, where Than’s witnesses were unable upheld The board’s recommendation was they to recall even where themselves had sat. through appeals process. the school’s Id. at result, As a trial court found that appellants’ “lengthy delay advising appellants argued that their notice of charges against materially [Than] of the charges inadequate purposes for the disadvantaged ability investigate procedural process. 812 F.2d at 661. prepare charge his defense to the of aca they The on which exam were accused of dishonesty,” university’s demic and that “the cheating May They was on 16. Id. at 659. explain failure to confront and the circum 6, charges were advised of the on June a and surrounding suspicion stances the of hearing set for was June 10. Id. at 657. to in timely [Than] a more substan manner hearing changed The date later to June tially impacted ability meaningful to [Than’s] 12. Id. ly respond charge.” to the As demonstrated

above, findings supported by these are The Eleventh Circuit held that notice evidence. However, was sufficient. 812 F.2d at 662. in the students that case: 12, March

On the “notice” to Than amount- (1) telling ed to no than more that he was suspended eligibility ap- were with cheating. 659, April ply again year, accused 4 letter told in one id. at not dis- during 3. The School and Than lost the benefit dent to be confronted with the issue School’s own rule that calls for an accused stu- exam. were, alleg- paper missed, Than;4 whose he had his accusers as was from, copied what edly and evidence (2) by attorney at the an were advised him, against for the which be used not, 658, hearing, Than was id. at whereas same, future, or lack of would determine by discouraged an had fact been and in the School. for obtaining from counsel party adverse hearing; matters, Than’s rota- compound clinical To by assigned the School— tion schedule — (3) agreed hear- actually specifically to the and also Than work the weekend called for 12, 658, at ing date of whereas June id. Tuesday, following Monday, and Wednes- agree to his hear- specifically Than did not 6:00 a.m. until 6:00 day. Than worked from date; days. those p.m. on five (4) garner time to favorable had sufficient undisputed that no notice was It is advance at present hearing, at the evidence id. provided regarding following evidence: here whereas the record demonstratеs (1) grade specific psychiatry Than’s a investigate that Than’s efforts to his case (2) course; information, not con- statistical documentation, acquire supporting and letter, Kelley’s regarding a in Dr. tained NBME, particularly severe- from the paper and comparison between Than’s exam schedule; hampered ly by his rotation (3) statistical Chiang’s paper; exam (5) argued enough time that there was not analysis forth methodology explaining the set charges Kelley’s between the notice of the all these Dr. Yet three of letter. officer, in- id. this case whereas items were relied Russell, making recommendation complaint her volves a different of untimeli- Dr. detailing her ness, Than. letter expel alleging one that there much was too findings, April Dr. Russell dated alleged cheating time between the incident stated: charges. notice pointed Dr. McNeese out that Mr. analogous. conclude We that Nash problems Psy- previously had academic chiatry. Currently he states he wishes 5. The be used notice of evidence to requires anesthesiologist, which become against Than for for high academic standards selection challenge also tri residency. had motive for He therefore finding al that the court’s School’s notice had a trying good to ensure that he exami- the evidence to be used Thаn was Surgery in to main- nation score in order following deficient. The record reflects the his current academic status and not tain evidence on issue. poor surgery ex- it further diminish presented amination score. McNeese McNeese, under cover of a memoran- per- [ ] from the NBME that the April provided dated dum centage agreements wrong answers “[c]opies may documents that be intro- Chiang Mr. was “well Mr. Than and hearing by duced at the medical percentages ... above the estimated package on school[.]” Than received the working large groups of inde- examiners Friday. sched- pendently.” 18; morning Thursday, April for the uled therefore, just pre- days subsequently had Russell that she five Dr. testified Kelley, analyzing the the time that Dr. pare, being after told for first who assumed term, perma- punished disciplinary school or a the remainder of the 4. When student is for for reasons, "sliding may a to deter- nently, require procedures.”); cotuts utilize scale” more formal process adequacy ("The the the Dixon, mine of due afforded proce- 294 F.2d at 155 minimum II, 834 S.W.2d at 430-31. The student. pro- requirements necessary satisfy due dural punishment, process the harsher the the more depend upon and the cess the circumstances Goss, at student is due. See U.S. involved.”). parties of the interests suspensions expulsions (“Longer S.Ct. at 741 or potential officer, Russell, between Than’s wrong correlation Dr. the ‍‌​​​​​‌​‌​​‌‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌‌‌‌​​​​​‌​​​​​​‌‍School’s no- wrong answers, Chiang’s answers and had tice to Than of the evidence to be used analysis “joint wrongs” factored into his the against constitutionally him was insufficient. everyone taken who had the exam. This Relying County v. Tate Keough on Bd. of assumption, letter, according Kelley’s to Dr. (5th Educ., Cir.1984), ap- 748 F.2d 1077 the was paragraph incorrect. In the first of his pellants argue we should that “decline[] letter, Kelley “analysis stated that the burden academia with the detailed and re- pair was done the me examinees strictive requirement notice that the lower provided.” you (Emphasis whose names applies” Keough, court In added.) high here. a student, hearing, school notice and a after following The trial court made the find- expelled repeatedly misbehaving ings, by supported which are the evidence appellants school. Id. at The 1079. com- disputed by appellants, and not the on the plained that Board’s supply the failure to analysis” issue of the “statistical issue: them with a list witnesses who would anyone was not [Than] advised would testify against the student the and testify the concerning analysis statistical summary testimony a proce- of their violated letter, provided Kelley’s in Dr. and [Than] process. dural due Id. at 1081. provided incomplete copy of that disagreed, holding The Fifth Circuit lettеr. The stated that letter of the total providing appellants not Board’s with wrong common answers and [Than] alleged procedural student from he was such a which have list did not violate due copied, wrong 88% same were the answer. in that 748 F.2d at case. any comparison letter was silent as to appellants argue Keough analogous is percentage any between and this control case, that, just as due did group percentage, or “standard” and the require in Keough provide a Board against drawing any letter cautioned con- summary list of witnesses and of their analysis clusions from the due to the small there, testimony appellants to the nor did sample size in the involved review. At the process require notify the School to however, Dr. MeNeese added to grade specific psychiatry Than that his in the concerning analysis information course, information, the statistical not con- testifying about a conversation she had letter, Kelley’s tained in regarding Kelley with Dr. in which he indicated that comparison paper Than’s exam between approximately wrong common 40% an- Chiang’s paper, exam and the statistical (despite swers was normal and that the methodology analysis explaining the set forth letter) cautionary language he found Kelley’s in Dr. would be used as evi- letter figure personаlly disturbing. 88% No- hearing. dence him at the provided where the documents to [Than] summary or of the witness testimo- case, Finding Keough analogous to this ny provided to him there disclosure Keough, disagree. we Fifth Circuit additional, comparative of this statistical part holding upon based its the issue in information. following facts:

(1) before court con- The situation disciplinary cerned “a matter provided routine with- complete [Than] was also not copy school,” deprived public and was in a letter F.2d at clear- methodology used the NBME in its ly not the case here.

analysis.5 (2) fully apprised “were evidence, underlying supporting ... facts foregoing th[e] Considering the here, particularly significance charges,” case its obvious to the not the where Than reliability Kelley’sanaly- presented In the trial a statistical attacked both the Dr. court. who, terms, expert strong methodology forming veiy specifically used in in sis and the it. told, least, opportunity be heard is a Dr. at the about tainted. The was not process. requisite Kelley in fundamental Dr. McNeese’s conversation with 267, Goldberg Kelly, v. S.Ct. U.S. Kelley approxi- that which Dr. indicated (1970). The hear 25 L.Ed.2d mately wrong common was 40% answers impartial “an conducted ing should be wrong an- normal and that 88% common Dirt, County Inc. Mobile v. tribunal.” disturbing. The sta- personally swers was Cir.1984). (11th 1562, 1566 Comm’n, 739 F.2d definitely sup- “facts tistical evidence was “meaningful man It must be conducted charges.” porting the 267, 90 at U.S. at S.Ct. Goldberg, 397 ner.” (3) surprises provided witnesses “[T]he Manzo, Armstrong 380 U.S. (quoting unpre- Keoughs the which 14 L.Ed.2d 62 85 S.Ct. defend,” here, pared not the case where (1965)). heard must opportunity to be “The of Than’s sur- the record shows evidence capacities and circum tailored to the be prise hearing the at statistical evidence who are to be heard.” stances those Kelley’s Dr. letter.6 contained 268-69, 90 at Goldberg, at S.Ct. 397 U.S. following evi 1021. The record reflects (4) Keoughs material suffered no “[T]he on issue. dence this prejudice by proceeding hearing before list,” the school board without witness Dr. 11 memoran McNeese’s here, Than’s case where statistical advising him what evidence dum to Than expert could have attacked unknown hearing at the would be introduced School at NBME the School statistical evidence room, that “NBME examination stated court, did in trial had hearing, as he necessary.” may viewed if No MSB 2.135 be that be known the evidence would during the room hear one visited the exam presented hearing.7 at the hearing, ing. At the conclusion of following transpired: Keough comparable is not here. right. All I that con- Dr. Russell: believe hearing

6. The hearing. cludes the you challenge also the tri Do to look at this Dr. McNeese: want finding room or not? al that the itself was examinatiоn court’s proc- [of the two 6. The statement of facts from the School without further corroboration surprised shows that Than was the unknown statements]. tors’ implied evidence to the that he that department surgeiy ... called the Na- intentionally withheld it from him. had told them of [the NBME] tional Board phone After Dr. McNeese stated facts about her had their concerns and a schema indi- Kelley, following transpired: call with Dr. sitting took in the room and the indi- viduals Dr. McNeese: It was not—we were not with- were seated around Allan viduals who you. holding information from their to do a correlation of exami- asked them So, phone you when receive Than: did sheets with Allan Than’s. nation answer call? What date? then, days probably I two three before I or know_ Again, I don’t He McNeese: to talk him about these called Allan in let that was con- called me to me know he allegations, phone call from Dr. had received a cerned. Kelly where the National Board [sic] of I asked [of March] Than: Because the 12th that there were time he voiced his concern you about it NBME [the for more information wrong high percentage of like answers. analysis]. you apparently But did not— I receive written authoriza- I said I’ll wait until give you No. Dr. McNeese: I couldn't your I And when received tion of concern. time, at that as I was forbidden information coupled piece with the of evidence more, you anymore Regent's give rules to allegations surgery from individuals two given you in [sic] information than what prompted call in. me to the letter. forming Kelley’s methodology used important part played 7. Statistical evidence,” analysis part piece of of "that injunction temporary At the case. but, above, did not receive as noted testified follows: Dr. McNeese as hearing. methodology before willing go in a I ahead and call was not disciplinary student and initiate Yes, traffic, Dr. Russell: I do. directing seats? Kind of so to speak? record; parties The then went off the no expect, A. That would be to reasonable hearing’s more was recorded for the state- that was her role. ment facts. testimony

Trial demonstrated that Dr. Russell, officer, proceeded then Q. Okay. Chiang? How tall was ... Ted accompanied by the exam room Dr. A. I don’t know because I never saw him. McNeese, who representa- was the School’s tive at the and one else. along, asked come was told to: you Q. way Do if know one or the other her, too, Chiang covering I did I was his sheet also ask asked her after answer during time the examination? the record have been finished. walk- She’s out, I asked Dr. Russell I can come No, I A. don’t know. no, along say plain and she no. told She Q. youDo Chiang whether know Ted me she knew the room where was. That leaning in order block the answer sheet was off the record. from Allan’s or he view whether was sit- When Dr. Russell Dr. and McNeese arrived ting upright during the exam? room, at the exam proceedings No, that, I A. don’t know either. Only reconvened. No record was made. present Russell and Dr. for McNeese were

whatever occurred the exam room. Well, Q. you say could that his how view, [Chiang’s] plain again, sheet was in findings answer

Once Dr. Russell's written you say way or can’t that one or other? placed significance that indicate she on evi- privy. which dence to Than was not you say I told I can’t I A. don’t Russell wrote: know the to that. answer Additionally, purposefully, I sat above, As noted the record demonstrates occupied by during chair Mr. Than what that Than could or could not see was a clearly examination pa- and could see the regard critical issue in to whether he cheat- per examination occupied from the chair Yet, ed. when it came time to visit the scene Chiang. Mr. alleged cheating pos- of the and measure the seen, sibility read, that Than could have testify She would later as follows: Chiang’s paper, was ush- officer Q. right. Now, you All when went solely by representative, ered the School’s you exam room sat in Allan Than’s presence without the accused.8 Addi- chair, right? is that tionally, testimony she her reveals that key ignorant many facts relevant A. I sat in all chairs. four question of Than could see and read whether Chiang’s Chiang’s paper, height, such as Q. saying You’re it was Dr. McNeese sheet, Chiang whether covered answer were, all and, knew where these seats is she Chiang’s so importantly, most whether an- you the one who told the exam room plain for swers were even in view another you who where all sat so could sit in those student to see. proctors brought knowledge.” seating proctor,

8. One chart which it had no how- ever, room exam with her and used employee appel- was an School. testimony. undisputed it in her It is authority regarding why cite no lants it, copy did not have and that School offi- responsible not be of its em- should the act not have cials did advance notice of its existence. ployee, whether had advance that the notice argue School “cannot be act would occur or not. responsible giving held notice about

851 Furthermore, departed their own from record demonstrates Defendants the (1) thought hearing actually concerning that of a guidelines that the officer confrontation Than, (2) wrong party, the had a burden cheating; notice of suspected of student of hearing. at rules proof the School’s subject of their testimo- and the witnesses provide that: (3) ny; copies and of documents and notice for at may consideration that be offered hearing charges, Upon of the the institu- a hearing. disciplinary These deviations the representative tional has the burden of going deprived protection the and the the only forward with not of [Than] great- proving charges by the burden the governing dis- of formal rules the school’s of weight er the evidence. credible also, matters, to ciplinary pertinent but of the deprived him of mini- proceeding, this added.) rules no (Emphasis place bur- process afforded guarantees mal of due proof of accused stu- den whatsoever the constitutions. the States and Texas United that, Dr. “Both dent. Yet Russell testified ... parties [Than’s] have the burden burden that, we appellants point out as noted (Empha- prove towas that he didn’t cheat.” university’s its previously, a failure to follow added.) sis regulations per and is not a se own rules importance Considering the of Dr. obvious Levitt v. process. of due See Uni- violation room, visit to the exam and the Russell’s (5th Texas, versity F.2d 1230 of weight gave she obvious her visit when she Cir.1985); II, 834 S.W.2d see also composed findings, hold that her written we However, (Dunn, J., dissenting). a when hearing to the was tainted her visit the and university’s actions violate its own rules proper We of no exam room. can conceive process, also themselves violate due there proceed that the officer reason deprivation independent of is a constitutional only by accompanied room to exam Levitt, F.2d at 1230. violations. rules representative, and not the ac- School’s (who come), cused had fact asked to and held, already As have the School violat- we proceeding, making there continue rec- in, process among right to due ed Than’s already process, ord in that had been (a) timely things, giving other not him notice officially closed. This tainted the (b) timely charges, providing not him process purposes,9 due as did the fact that him, against of the evidence be used notice mistakenly placed officer a bur- (c) providing copies of not notice proof den of on Than.10 against him. all of the evidence to be used Thus, finding trial was court correct 7. The School’s violations of its own departures that from its own the School’s rules deprived guidelines [Than] “also ... of guarantees process” of due notwith- The trial court also found that: minimal process of due argue Dr. contributed the overall denial 9. The because Than, McNeese's memorandum stated that exam due because it is consistent with "may necessary,” per- was room be viewed if place a burden on a student accused visit аs she for Dr. Russell to the room missible prove ”[H]e he not cheat. of that did argument disingenuous. did. A fair We find prove illegality must who claims existence reading memorandum would of McNeese’s Clark, (Tex. 158 S.W.2d it." Duvall v. any "necessary” viewing of the room be that w.o.m.). We Civ.App. writ ref'd —Waco (a) legitimate part of would be done as pro- principle applies here for due believe that (b) hearing process, like the rest of on the record purposes. cess (c) present. It with both sides particularly applicable that the cannot be said that Than on notice We also note another that be viewed in the manner Supreme room would principle, by the States stated United actually Russell viewed it. plain litigation, it is that “In all Court: kinds of proof may lies be decisive where the burden placing We hold Dr. Russell’s do not Randall, Speiser v. 357 U.S. the outcome." right proof on Than violated Than’s burden 1332, 1341-1342, 2 L.Ed.2d 1460 78 S.Ct. it was the School’s because added). (1958) (emphasis Rather, do hold that this rules for her to so. we standing the findings. fact the School’s actions room in her written The fact find- also violated own piece ‍‌​​​​​‌​‌​​‌‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌‌‌‌​​​​​‌​​​​​​‌‍its rules. The trial court er’s of a review crucial evidence—the did not find alleged cheating fact that the School scene re- —was departed review, actually from own rules corded internal appellate its a fact аll important by being violation of made the more process. due Than’s rep- forbidden to be there when the School’s resentative was to allowed attend. appeal 8. The to Dr. Low Relying Plaquemines on v. Franceski Par- appellants argue The that: (5th Bd., Cir.1985), ish Sch. F.2d 197 importance Of further is the trial court’s appellants argue also “[a] that mere threat recognition lack of that Than harm (such hearing as the officer’s recommenda- cannot, not, complains of and did arise tion) protected ato is not interest sufficient completed until Dr. Low his review the Franceski, employee to state a claim.” In Russell, hearing. officer, hearing Dr. parish of a school board contended that the recommendations_ only made It is Dr. deprived right state her of a constitutional Low’s hearing determination and not the when it informed her letter that she would ultimately officer’s recommendation that not hired for be the next school term. Id. decided Than’s case. disagreed, holding 200. The Fifth Circuit that the mere decision not hire advance to argument ignores This the fact that “the deprivation. her for the next not term was dismissal, harm” complained, of which Than Id. completed occurred Dr. Low his re- before view, not after.11 Here, however, just did not Than; “decide” or to “threaten” dismiss any event, the record that Dr. indicates deprivation dismissed him. The in this case transcript Low reviewed a of the tainted occurred, actually opposed being to as mere- hearing, including the of which evidence ly apply foretold. Franceski does here. prior hearing, was unaware to the upheld appellants Than’s dismissal. The ar- 9. Causation

gue that, appeal on Low Than because could address items those of evidence that he appellants argue any proce- The also prepared was not hearing, address at the dural due did not violations cause alleged violations “were deprivation of Than’s interest in a medical cured during appeals internal process.” degree. appellants language refer us to v. Laje Hosp., R.E. Thomason Gen. disagree. We Not even Than’s new evi- (5th Cir.1982): F.2d “[I]f school arguments remedy dence and could the effect suspensions officials could show that delay of the in notifying School’s Than of the justified place and would have taken him, charges against which was that witness- held, proper hearing even if a had been then es that could have been of aid to on the damages injuries suspensions from the seating position forgot critical issue details were recoverable.” problem critical to Than’s defense. That could not be “cured.” shown, have not how have, Additiоnally, Dr. Low did not ever, have been dismissed have, complete could not in front of record a proper even if had been held. transpired in the review. Whatever They argue because at the time Than exam Low, room after the was closed was appealed to Dr. Than was aware of and recorded; yet, responded Russell was at least which he was evidence persuaded enough by her room visit to the unaware before the and Dr. Low rejected include one of her from the appeal, observations still then Than would above, 11. As noted Than was not until he reinstated obtained court order. mill, at 1496 if 470 U.S. at S.Ct.

have been dismissed after the even Manzo, Armstrong then. 380 U.S. (quoting he had been aware the evidence We Low, 1187, 1191, accept do not this assertion. Dr. re- 14 L.Ed.2d 62 85 S.Ct. gardless prepared of how Than was for the (1965)). signed perma The trial court appeal, reviewed a result injunction January nent based, significant part, inability on Than’s on Febru alleged incident occurred procure help witnesses could his de- who 22, 1991, years ary almost two before fense, adequately pre- lack Than’s of time to injunction. By granting permanent defense, improper pare a and Dr. Russell’s foreseeable, January it was indeed visit to the exam room. The result gradu probable, potential witnesses had cleаrly appeal to Dr. Low does not indicate himself testi ated and moved on. Dr. Low even that Than would have been dismissed program” medical fied that “the school process without the due violations. that, afterward, years long students four “go residency programs into all

at the School completed over the world.” Than himself I 10. Conclusion Point of Error May, medical school in and attended finding The trial court was correct in graduation ceremonies that June. process; Than was denied due this conclu- circumstances, of these it was es- supported ample sion is Because evidence. fair, hearing cumulative effect of all of the infirmities in sential that a reliable be had pursuit early juncture. School’s Than’s dismissal de- at an We do not case Therefore, process. nied due the trial hearing could have been believe that such a granting court did not abuse its discretion in granted time the trial court had injunction. permanent We overrule injunction, believe permanent and we do not point of error one. now, fair, hearing could be had that a reliable years alleged more than three after the decided, decide, We have not and cannot cheating incident. It is far too late. whether Allan Than cheated on the NBME that, perma- exam. We have decided before rely Cоnnelly v. Univer- nently depriving pro- someone of an interest College, sity Agricultural & Vermont State process tected the due clause of the Four- (D.Vt.1965), F.Supp. 244 156 and Texas Fac- Amendment, teenth as was Than’s attend- Texas, University ulty Ass’n v. 946 F.2d admitted,12 ance at the School once he was (5th Cir.1991). 379 Neither case addressed proceedings higher pro- must be of due particular delay hearing a whether a before quality place than those that took here. cess constitutionally infirm or that a new held remedy origi-

hearing must when the be process. hearing nal violated due Point of Error II third-year Connelly, In medical student error, appel- In their second dismissed for academic reasons. lants contend that: alleged F.Supp. at 158. He that his dismiss- grant The trial court erred in its arbitrary, sum- “wrongful, improper, al was injunction permanent sought by Than be- university mary unjust.” Id. The support is no cause there summary judgment. Id. moved procedural conclusion that the due motion, and held trial court denied cured, could not be and thus at violations prevail on the issue of plaintiff should the most, remedy procedural pro- due university arbitrarily, ca- acted whether requiring cess violations is an order faith, the court would priciously, or bad process. receive university give plaintiff order the then impartial fair on his dismissal. requires Due yet Connelly, there had not provided mеaningful “at a time.” Louder Id. at 161. be Sabeti, S.W.2d at 687-88. 12. See recognize University court that it that the

been a when the stated We (conditionally) System Regents order one. That is not of Texas Board of is “autho govern, sup operate, the case here. rized and directed to port, and maintain” the institutions in the Faculty, faculty In Texas tenured mem- 65.31(a) § System. Ann. Tex.Educ.Code university bers were terminated incident to a (Vernon 1991). possess It is the Board that president’s decision to eliminate the academic authority degrees from institu es the to offer they taught. programs which 946 F.2d at System. tions in the Tex.Educ.Code Ann. faculty 881. The Fifth Circuit held that the 65.31(b) 1991). (Vernon However, § matters meaningful members were not afforded a subject authority within the Board’s are opportunity to be heard on the decision to review the courts if the Board abuses the employment. terminate their Id. at 387. Benedict, Foley authority in it. vested See they The court held that should have been. (Tex.1932). S.W.2d ruled, Id. At the time the Fifth Circuit that Than has success- The record reflects yet opportunity had not been an to be there necessary fully completed all the course work Again, heard. Id. at 383. that is not the degree. to obtain a Resolution of the cheat- case here. all that Than and issue is stands between already given Than The School has degree.13 that The School did not resolve oрportunity Through be heard. no fault now, process, issue consistent with due Than’s, opportunity provided by time, passage much cannot due to the of so process. For the School violated due rea- process. In resolve it consistent with due above, set out we believe that another successfully sons such a case—where Than has hearing constitutionally work, necessary this late would be completed all the course point only obtaining futile. We overrule of error two. where the obstacle to his

degree hearing that one of his is a violated rights, and a new hear- constitutional where Point of Error III constitutionally permissi- could not be three, authority in appellants In of error as- ble—the Board has abused its awarding degree. sert that: Than a ordering The trial court was correct The trial court erred as a matter of law diploma. appellants to issue Than a We grant ordering UT to Than a medical de- point of error three.14 overrule gree beyond such an order is because authority proper of the court. Conclusion refer to the trial court’s order grant court’s We affirm the trial permanent injunction

in the that the “defen- permanent injunction respects. in all diploma dants issue his and all certifi- [Than] necessary participation cates for his J., HUTSON-DUNN,

post-graduate residency program(s).” dissents. and, agreed appellants, they authority University [of Rico] to order the Puerto 13. If we with the as pray, right hold that Than’s to due plaintiff Degree to award a Master’s in Chemis stands), (in not violated which case his dismissal or, try." F.Supp. at 429-30. We decline to alternative, nullify permanent in- in the First, apply this conclusion for two reasons. junction and order that the School conduct a case, specific to this is Texas law most (in may second which case he be dis- trial court controls the issue of whether Texas again), presently entitled to missed a he will not be university may to award a order a Texas state degree. degree. Doubtlessly, student a Texas authorities Foley v. as the Code and such Texas Education 14. The dissent would hold that the trial court figure in the court’s conclusion Benedict did not authority graduate School to had no to order the Second, agree that we do not in Amelunxen. support argument, the dissent Than. its Horowitz, judge Ewing the cases cited University cites one case: Amelunxen v. Puerto conclusion, it, support support even Rico, as for his (D. 1986), F.Supp. Puerto Rico us, specific proposition, (1st Cir.1987). indirectly. does That aff'd, 815 F.2d In Amelunx en, judge follow from those cases. the district ‍‌​​​​​‌​‌​​‌‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌‌‌‌​​​​​‌​​​​​​‌‍wrote that he “has no HUTSON-DUNN, Justice, that Than was denied the dissenting. the conclusion process required in an academic disci- due I dissent. pline context. against University complaint Than’s majority The trial court and the found Houston, al., Texas Medical et right pro- Than’s to due the School violated entirely based on his claim that the School following cess for the reasons: provide appropriate him constitu- did not timely notice of the a. lack of tional due that he should have had in disciplinary proceedings academic of the evidence to be b. lack of notice him brought against the School. used year third sat for Than was when he during c. occurrences in surgery. the NBME examination separately claims are addressed below. These giving School assisted NBME by furnishing proctors exam to the students THE HEARING NOTICE OF apply for the exam. The School administering NBME rules in the examina- following The record reflects the dealing tion and in with matters of regarding gave whether the School Than no- arising during the test. charges timely by tice of the in a manner process standards. The record demonstrates that this is exact- ly attempted what the School to do. After February Than took the NBME exam on consultation, proctors agreed careful two McNeese, 22, 1991. Dr. the dean of stu- cheating sought Than was and dents, instruction proctors’ reports received the no earli- McNeese, charge from Dr. who was of February Kelley er than 25. Dr. administering the NBME exam on behalf of National Board was asked to do a statistical advising proctors in the NBME and situa- cheating to whether correlation determine They tions this. such as were informed of all occurred. Dr. McNeese testified at this (recommended by juncture alternative actions the Na- proceedings, in the she was unwill- Board) However, making any allega- tional that could be taken. go forward with during against the time it took to determine the tions Than until she heard from the take, proper type of problem action to National Board. Chiang, alleviated itself. the medical student a letter On March Dr. McNeese received from, paper copying

whose Than was fin- Board, by Dr. from the National written early, ished 30 minutes and because there letter, Kelley. as she received this As soon Than, sitting no one else close to began try notify tele- she and proctors no had cause to take further phone by putting and notices in his mailbox during proctors action the test. The made notified, Ultimately, at school. Than was reports full written of the incident to Dr. and to Dr. McNeese’s office on March went McNeese; report day one of was dated the time, 12. At this Than was told that he was exam, February and the other being and that he had accused 25,1991. February was dated There was no right attorney. an There was at to hire indicating evidence the time that these re- one, two, possibly informal least and other ports were received Dr. McNeese’s office. meetings with Dr. McNeese or her staff dur- Dr. McNeese assumed it was sometime ing which the case was discussed. shortly following reports. the dates of the April formal- In a letter dated Than was one, Under of error ly charged committing dishon- with academic argue: esty during point, At this the NBME exam. law, began contacting a matter of the trial court erred students who As other testify in finding him that Than was denied due took the exam with who could support was no evidence to his defense. because there delay advising pellants’ “lengthy [Than] did majority notes that the School The regard dealing charges against materially him disadvan- rules with follow its own suspected cheating. ability investigate prepare taged with a student who is his However, during the Dr. McNeese testified charge to the of academic dishon- his defense administrative the National university’s failure to esty,” and that “the rules, rules, unlike do not Board the School’s explain the circumstances sur- confront and during that a student should be notified state cheating to rounding suspicion [Than] suspected that he is of cheat- examination substantially im- timely in a more manner ing. rules that It was the National Board ability meaningfully re- pacted [Than’s] during tes- applied the exam. Dr. McNeese spond charge.” to the requires National Board that a tified that the TO BE THE EVIDENCE NOTICE OF done to determine statistical correlation be THAN USED AGAINST cheating occurred. whether notice majority finds that the School’s majority does not claim against to be used to Than of the evidence length exam and the of time between the constitutionally It bas- insufficient. long time that Than received notice was too (1) Than had finding on facts that es this Instead, days per in the number of se. only days prepare for the five majority untimely be- claims that notice was package with because he received (41 April days after the exam cause after copies of documents to be used 22), February prepare Than could not days before the April him on five evidence, i.e., poten- of a loss of case because (2) Than received scheduled on seating forgot details. tial witnesses following notice that the part took in this exam The students who (a) specific psychia- hearing: at the be used were medical students and classmates (b) Kelley’s product in try grade; work Than, after' the and were still at the School Than and regard comparison to the of these students were exam. The names (c) Chiang’s papers; exam the statistical to Than. record indicates that available methodology explaining аnalysis set forth actually of the stu- did contact some Kelley’s in Dr. letter. with him. dents who sat for the examination days notice Five who even able to find two students He was willing testify on his were to behalf. majority that Than did not first claims hearing, prepare for the enough have time to by majority that stu- The assertion that would be as he received the evidence seating might dents not be able remember only days before the against him five used finding support details does however, shows, hearing. The evidence properly prepare his case. Than could not hearing immediate- Than wanted to have the could not re- The fact that some students encouraged Dr. McNeese to set the ly. He sitting has they where were no member possible and he never hearing as soon as they seeing bearing on whether remember hearing. the date of the complained about any Than cheat. The record indicates Further, require- no constitutional “[t]here cheating, might have seen witness who op- provide students] an [the ment forgotten though they may where even have re- portunity respond, must have [Than] occurred, they would sat while the way of notice than more ceived In forgotten seeing the event itself. not have against charge [him].” of the statement fact, for Than at students who testified both Univ., 663 F.2d v. Auburn Nash seeing they recalled stated that (11th Cir.1987). dishonesty during other tests that academic prior to the hear- year had occurred over a Nash, who were accused In two students ing. notified of dishonesty were not of academic against them and the specific charges does not I hold that the evidence day before until the ap- witnesses to be heard finding that the support the trial court’s Therefore, a hearing. give wrong court the same answer. 812 F.2d at 658. The agreements joint violation probability held that there was no constitutional that 23 (88%) present at the finding expected because students were wrongs is a be witnesses, brought counsel and and working independently can examinees present were able to a defense and discredit provided. not be testimony. adverse Id. Hill, expert, testi- Robert Than’s statistics Than had more than time these students Kelley’s fied that Dr. letter stated that the did, opportunities. and had all of the same explained in analyses, which were statistical appeared no made com- analysis methodology which Than did plaint unprepared, proceed- that he was receive, Kelley. applied were not present presented ed to his views. He his this conclusion on the information He based defense, witnesses, cross-examined the letter, Kelley’s in Dr. which Than contained testimony discredited adverse as the record portion received. He stated that the demonstrates, though he not to have chose analysis quoted letter above means that the counsel. Than testified that he did not wish sample could not be used because the size to retain counsel. small, and, therefore, was too he could not necessary probabilities. calculate the above, Considering all of I would hold process rights that Than’s due were not vio- During hearing, Than the administrative lated the fact that he received notice regard testified to the statistics referred against only the evidence to be used him five Kelley’s pointed into Dr. letter. He out that days hearing. before the study indicated that the should not letter Psychiatry grade prove many be relied on to how students up wrong came with the same number of my University dissent Texas Med- Everything answers. Than needed was Than, ical School v. S.W.2d Kelley, the letter from Dr. which he received. writ) (Tex.App. [1st Dist.] —Houston Kelley apply analyses did not which (referred majority to as “Than II” in the explained in the addendum to letter. opinion), I majority’s found that the conclu- Therefore, analysis of no use sion that Than did not receive notice that his Than. academic record would be used reasonably supported by was not the evi- process rights I would find that Than’s due specifically dence. Dr. McNeese advised were not violated the School’s failure might testify any aspect that she about give Than the statistical data and methodolo- of his student record. Id. at 435. For the letter, gy Kelley’s which was enclosed Dr. dissent, my previous reasons set forth in I prejudice. as he suffered no material See again process would hold that Than’s due Educ., Keough County 748 v. Tate Bd. of rights were not violated. Cir.1984). (5th 1077, F.2d 1083 analysis Statistical THE HEARING agree majority’s I with the conclusion that exam room Visit the enclosure, Than did not in Dr. receive the majority process finds that Than’s due letter, Kelley’s regarding the statistical rights at were violated due to occurrences analysis methodology and the School hearing. majority the first states that Kelley’s Dr. received. Dr. letter hearing tainted because Dr. Russell the McNeese, received, which Than stated in rel- room at con- went into the examination part: evant hearing and Than was not clusion of the my judgment It is that since the total go with her. allowed 29, group only of examinees tested that Dr. Russell The record demonstrates percentage is not advisable to estimate the any gleaned evidence from group of 26 items for which that would did not consider 858 concept proof of understand the of burden trip room that she had

her to the exam hearing. thought already during proper application. Nor does its She both heard and point prove respec- conclusion she parties had burden to their have reached if inconsequential. that she could not reached tive eases. I find this to be gone had not into the room. standards, she with attendant rules Courtroom proof, not even are evidence and burdens go room Dr. Russell did into the exam Goss, required setting. 419 U.S. a school sat completion of the after the Amelunxen, 585, 741; at 637 at 95 S.Ct. with in all four chairs. Others were there give-and-take informal F.Supp. at 431. An by Chiang, sat in her to sit the chairs Goss, 585, at necessary. 419 U.S. all that is Than, Dr. McNeese told and the witnesses. Amelunxen, 741; F.Supp. at person sat in the 95 S.Ct. at Dr. Russell where each room, using seating chart which had al-

ready introduced into evidence. been foregoing, I Considering all of the would seat, sitting in Than’s Russell testified process received all the due hold that Than Chiang’s she could see an uncovered sheet to which he was entitled. However, no more she learned desk. visiting room than she learned the exam point error one. I sustain would during testimony presented to her from the two, point hearing; proctors testified dur- of error the exam Under Chiang’s see argue: that Than could sitting. he was paper from where What grant in its The trial court erred simply cumula- in the room was Russell saw injunction sought by Than be- permanent already into had been introduced tive what support cause there is evidence hearing. at the process procedural due conclusion that Further, disciplinary in a situ- due cured, and thus at violations could not be an “informal requires ation no more than most, remedy procedural pro- due the student and the give-and-take” between requiring an order cess violations is 584, Lopez, v. 419 U.S. school. Goss process. receive (1975); 729, 741, Ame- 42 L.Ed.2d 725 S.Ct. Rico, error, University majority Puerto lunxen Under (D. 1986), affd, F.Supp. Rico Puerto process violations cannot that the due finds (1st Cir.1987). neces- It is not 815 F.2d 691 have a fair it is too late to be cured because apply sary to have a formal the due and because and rehable to meet due formal rules of evidence Than’s fault. Due process violation was not Goss, at 419 U.S. at 95 S.Ct. standards. opportunity to be heard process requires an Amelunxen, 741; F.Supp. at 431. meaningful meaningful time and at a Goss, Supreme Court wrote: Manzo, Armstrong v. 380 U.S. manner. trial-type impose ... even truncated To 14 L.Ed.2d 62 85 S.Ct. adminis- procedures might well overwhelm (1965). pro- agree that Than’s due I do not and, by many places facilities trative if there was rights violated. Even cess were resources, than it diverting cost more rights, has a of his a violation effectiveness. save educational present of the students who record Moreover, formalizing pro- [] further exam, they can be contacted the NBME formality escalating adver- its cess and Furthermore, testify in some fashion. may only it too sary nature not make available, as Than’s proctors as well two are regular disciplinary tool but costly as a As is demonstrated academic records. part destroy as its effectiveness also record, when to remember students tend teaching process. cheat, fact that they so the see someone 583, long period at 740-41. of time between 419 U.S. at 95 S.Ct. there has been hearing is irrelevant. and the the event proof Burden of court- imposing majority insists over majority expresses concern also on a school standards principles room not seem to that Dr. Russell did the fact - disciplinary hearing. only Temple v. Applying that idea one of them. See Hankins Center, 437, here, many I that Univ. Health Sciences 829 F.2d note there ‍‌​​​​​‌​‌​​‌‌​​‌‌​‌‌​‌​​​​​‌‌​‌‌‌‌‌​​​​​‌​​​​​​‌‍are eases (3d Cir.1987). 439, 441 years do not come to trial for several after the actionable event occurs. we do not Yet point I sustain of error three. simply wipe them from docket because possible it’s that some witnesses’ memories conclusion, per- I would order that the might have faded. injunction be dissolved. manent completed The fact that Than has the bal- necessary complete

ance of his classes to portion training of acadеmic his medical does change the fact that the School dismissed cheating, him for and was forced means of restraining order to allow to continue Here, integrity his studies. of the School Cheating only is at stake. cuts across struggle of our schools to aca- achieve excellence, underpins supports demic mediocrity. though intellectual Even I dis- agree process rights Than’s due of violated, why I see no reason the School opportunity should not be afforded the CLOSS, Appellant, Matthew majority hold second if the is cor- v. rect in its assertions. IN- GOOSE CREEK CONSOLIDATED point I would sustain of error two. DEPENDENT SCHOOL DIS- three, point Under of error TRICT, al., Appellees. et argue: No. 06-93-00045-CV. The trial court erred as a matter of law ordering grant UT to Than a medical de- Texas, Appeals Court of of gree beyond because such an order is Texarkana. proper authority of the court. 14, Argued March 1994. error, majority Under this Decided holds that the trial court was correct ordering diploma. the School to issue Than a

I would find that the trial court has no

authority graduate to order the School to precedent

Than. There is no for such an act. situation, In a similar a federal court held: outset, “At the the court clarifies that it has authority University to order the to award Amelunxen, plaintiff Degree a Master’s ...” F.Supp. (citing Regents at 429-30 Michigan Ewing, Univ. 474 U.S. (1985); 106 S.Ct. 88 L.Ed.2d 523 Board v. Horo- Curators Univ. Missouri witz, 98 S.Ct. 55 L.Ed.2d U.S. (1978)). many things There are a medi- determining cal school considers when student; graduate whether to academics is

Case Details

Case Name: University of Texas Medical School at Houston v. Than

Court Name: Court of Appeals of Texas

Date Published: Apr 7, 1994

Citation: 874 S.W.2d 839

Docket Number: 01-93-00199-CV

Court Abbreviation: Tex. App.