BOARD OF CURATORS, UNIV. OF MO. v. HOROWITZ

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Argument of Marvin E. Wright

Chief Justice Warren E. Burger: We will hear argument first this morning in 76-695, University of Missouri, Board of Curators against Horowitz.

Mr. Wright, you may proceed whenever you ready.

Mr. Marvin E. Wright: Chief Justice may it please the Court.

I am Marvin Wright, attorney representing the petitioners in this case.

The petitioners are the University of Missouri, the Governing Board of that Institution, provost for health sciences on the campus of the University located in Kansas City and the Dean of the School of Medicine located on the campus of University of Missouri at Kansas city.

Respondent is Miss. Charlotte Horowitz who was a student in that Medical School, until her dismissal for deficient academic performance in 1973.

Now, the issue, primary issue before the Court today is that of whether or not a medical student in a public institution of higher education is entitled to a notice of charges and a hearing prior to dismissal from that school for deficient academic performance, its second issue is that of whether or not, when a medical student has prior knowledge of deficient academic performance, the reasons are not disclosed and made public, whether or not that student has a stigma imposed upon them.

Under the preview of the Fourteenth Amendment, when a formal hearing is not held.

The last issue naturally is that of whether or not the procedures which were utilized by the University of Missouri were fair to the student and complied with any requirements of the procedural due process.

Now the facts just very briefly of the case are this.

The school was established in 1971, the Governing Board adopted a document entitled an Academic Plan.

Now for purposes of the case today, this academic plan established or is called a council on evaluation, which is a committee charged with responsibility of reviewing the academic performance of students and then making appropriate recommendations.

There is a second committee which is referred to as a coordinating committee.

Responsibility of this committee, is to review recommendations coming out of the first mentioned committee.

This latter committee makes recommendations to the Dean of the School and the Dean makes final decisions with respect to student dismissals.

Now, the rules and regulations of the institution is set forth in this academic plan, do not extend to the student, the right to appear before either of these committees or the Dean, when the question is that of an evaluation of academic performance.

The same documents sets forth the fact that graduating requirements of the institution and the primary goal naturally is that of graduating confident and safe physicians, those that are qualified not only in basic medical science knowledge, but also qualified in the sense of clinical competency.

Chief Justice Warren E. Burger: If the University provided for automatic dismissal or termination on failure for two successive years to maintain an average of 70, let us say, will they need a hearing if developed that for two years the average was 60?

Mr. Marvin E. Wright: No Your Honor, I did not believe that it would, any more than in the case at Bar because it boils to a question of the academic evaluation being placed upon the professors of the institution.

It is for this reason the professors have given the evaluation of 60 in your example, the School has set forth requirement of an average as seventy.

Chief Justice Warren E. Burger: In other words you are saying that, when the judgment is subjective by a committee, it is not any different from, on a mathematical evaluation.

Mr. Marvin E. Wright: Well, that is correct Your Honor because the subjective evaluation of the professors, the institution University of Missouri of Kansas City, a numerical figure is not placed upon a student's performance, but obviously in placing a sixty on the student performance, the subjective judgment of the professor is what leads to that conclusion.

Now the respondent in this case Charlotte Horowitz, the University has never raised any question concerning this individual's intellectual ability.

She came to the institution with fine academic credentials, having graduated from Barnard College in Chemistry, Columbia University with the Masters in Psychology.

She had one year in PhD program in a Pharmacology at Duke which was the same as the first year medical student curriculum.

She attended the Womens' Medical College of Pennsylvania and for some four-five years, prior to admission in University of Missouri worked at the National Institute of Hill.

Unknown Speaker: Is that a four year school?

Mr. Marvin E. Wright: Sir the University of Missouri Kansas City Medical School is a six year institution, by six years I mean a student enter straight out of high school for a six year curriculum.

Unknown Speaker: In that school.

Mr. Marvin E. Wright: Yes sir.

Eleven months a year, first two years primarily based with under graduate work, the last four years primarily concerned with what is considered a typical type medical school arrangement.

Unknown Speaker: There are repeated references in the briefs to this criterion of being a safe physician that was kind of a new term to me in this context what does that mean?

Mr. Marvin E. Wright: Safe physician as here was described in testimony at the Trial Court, is that the student has sufficient medical knowledge, basic science knowledge and the student has the ability to function in a clinical setting with patients, so as to render primary care to the general public.

Now it has been explained that, that does not mean that the student is all knowledgeable and every conceivable medical question that would come up, but to be a safe physician, the student would have to have sufficient knowledge to know that was going to be necessary to obtain the assistance of other physicians or health care professionals.

So, the global institution and that of being a safe physician is that they can render care to the general public.

Now, primary medical care, not advanced specialized type care, because naturally that comes from internships in residencies after they would graduate from a medical school.

Unknown Speaker: Does the University run any other medical schools?

Mr. Marvin E. Wright: Yes, Your Honor, it does.

The University operates a medical school on the campus in Columbia Missouri.

That medical school is what people have referred to as the traditional medical school.

Unknown Speaker: That is a post graduate school.

Mr. Marvin E. Wright: Yes Your Honor.

This is a school where to be admitted to that school, you must have an under graduate degree and then you go into four years of medical school.

Now the school at University of Missouri Kansas City is a school, which is referred to as a docent type institution, whereby they have shortened the years over all, but they require going to school eleven months out of the year.

Now a docent is a physician, a professor who is assigned the primary responsibility of guiding the student throughout their entire --

Unknown Speaker: Would I be correct in the inference that I drew from the briefs, that the emphasis of this medical school is on producing, practicing clinical physicians rather than the people who are going devote their carriers to medical research.

So --

Mr. Marvin E. Wright: That is true Your Honor, the school has very readily stated from the very beginning, it is the reason that the school was established was the responsibility to provide Doctors to render primary care and the school encourages students and notifies them to that fact when they are interviewed for admission to the school.

And the respondent in this case at the time of application to this school and interview, was so advised that the school requires not only basic medical science knowledge, but a clinical competency, that all students were going to be judged on the same basis, as far as meeting any requirements for graduation.

Unknown Speaker: Now what does clinical competency mean?

Mr. Marvin E. Wright: Clinical competency, Your Honor is the ability for doctor to function in a patient setting.

It is the ability to take the basic medical science knowledge which one learns from books and to apply that to a given patient, to a given situation.

It involves all the way from acquiring a total and complete medical history from the patient to the proper type of examinations, the proper type of testing and then the ability to relate the basic medical knowledge into a diagnosis and a formulation plan whereby that patient can be treated.

And this is unfortunately the position where the institution found that the responded in this case was not deemed to be qualified.

Now --

Unknown Speaker: This was not result of written or even oral examinations but as a result of observation of her conduct in that setting is that it?

Mr. Marvin E. Wright: Yes Your Honor this is true.

Now the individual scored high on all written examination, the didactic part of the work.

Now as it was pointed out by the docent and is pointed by trial judge after the trial.

It is unfortunate but the individual apparently assume that she could become a doctor by reading a book, and not treating patients and getting the necessary experience there.

The clinical competency of that evaluation was naturally on subjective judgment of the professors that she was under and that viewed her performance in a clinical setting.

Chief Justice Warren E. Burger: What was the kind --

Mr. Marvin E. Wright: I would excuse me – just saying I would also like to point out that the institution after she has been on probation for a period of roughly seven or eight months, the committees, the two committees and the Dean notified her that she would not be candidate to graduate in May of 1973.

Some five months later, and an appeal was taken by the student and the institution setup a panel of seven doctors none of which had a appreciable contact with the student.

So as to get the opinion of others just rather than the faculty itself of the school.

Justice Thurgood Marshall: You said not appreciable, how much contact?

Mr. Marvin E. Wright: Your Honor none of them were instructors that instructed her in medical school.

Justice Thurgood Marshall: Are you saying that they did not have any contact?

Mr. Marvin E. Wright: No Your Honor I can not say that they did not have any --

Justice Thurgood Marshall: Well how much?

Mr. Marvin E. Wright: Your Honor I have I did not have the answer to that.

They may have seen her at some time in a clinic but they were – none of them were docents of the school non of them were classified as sub-docents in a hospital.

It is just they may have bumped in to the student at some time making clinical rounds in a hospital.

Justice Thurgood Marshall: Well how were they picked?

Mr. Marvin E. Wright: How were they picked?

Justice Thurgood Marshall: yeah.

Mr. Marvin E. Wright: Your Honor they were selected --

Justice Thurgood Marshall: Well they picked with knowledge of her?

Mr. Marvin E. Wright: No, Your Honor they were not.

They were picked because each of these individual had prior experience as professor in a medical school.

They were individuals that the Dean knew had outstanding medical reputations and since they had had prior experience with medical education, felt that they would be appropriate people to actually carry out a practical and oral examination.

Justice Thurgood Marshall: And they were picked by the dean.

Mr. Marvin E. Wright: Yes Your Honor, they were picked by the dean.

Justice Thurgood Marshall: And what instructions were they given is that in the record?

Mr. Marvin E. Wright: Yes, Your Honor it is.

The instructions were by a way of a conference which the dean held with each of these physicians, also on march 15th letter which is in the appendix the written instructions were given that--

Justice Thurgood Marshall: And they determined that her clinical ability was bad?

Mr. Marvin E. Wright: Pardon me Your Honor.

Justice Thurgood Marshall: What did they determine was bad?

Mr. Marvin E. Wright: Your Honor the seven individuals each they did not meet as a composite group, each one of them took the student through and oral and practical examination functioning with one or more patients.

Now the result was is that one out of the seven said she was competent and qualified to graduate.

That individual examined the student in pathology which was strictly a laboratory setting with no patients involved.

One doctor in general medicine recommended that she be graduated, though he said she was not – would not be acceptable as an intern in his hospital.

The other five physicians each independent of one another came in with recommendations to either drop the student immediately from medical school or saying she was not qualified to graduate.

Now, each of these examinations has been described and it was so described in the Trial Court has being the equivalent of what the American Medical Association has for special board certification where an individual would spend three to four hours with a given medical doctor in a clinical setting.

Justice Thurgood Marshall: This is a little blow of the special board is it not?

By eight years -- about is it not?

Mr. Marvin E. Wright: Yes Your Honor it is.

I was only pointing that out standpoint of view of the time element which is involved and the seriousness which the institution had.

Following the --

Unknown Speaker: At what level had Ms. Horowitz entered this school, you said this was a post high school, six year school for people who progressed form high school.

But she already been to college and to graduate school so tell me what did she come here recruited here in the fifth year.

Mr. Marvin E. Wright: Yes Your Honor the equivalent of the fifth year.

And the reason being.

Unknown Speaker: So she would have if all had and gone well, she would have been there for two year before graduating.

Mr. Marvin E. Wright: That is correct Your Honor and she was admitted as a advanced standing student because of her previous educational background and training.

Chief Justice Warren E. Burger: What were the classes or the sessions which the record indicated she failed to attend with regularity.

Mr. Marvin E. Wright: Well Your Honor, the first time that a question arose with respect to clinical competency was the first rotation really she was on where a clinic was involved was in March of '72 which is some seven months after she started attending the institution.

And they were having difficulty with respect to the clinical performance.

Unknown Speaker: Mr. Wright I am little concerned -- interested rather why was she admitted to the school at all?

In view of the type of emphasis they have on their education here was somebody with a college educations, and medical experience.

And they bring her in at an advanced standing, do they bring many in this way or --

Mr. Marvin E. Wright: Yeah, they brought thirteen students into the advanced standing.

Unknown Speaker: Just because the school was new and they needed to fill up because it is hard to get into other medical schools we have been told?

Mr. Marvin E. Wright: The school was new Your Honor I do not feel that it was compulsion to fill the institution at all.

The reason as I previously stated at the time of interviews with the student, the student was advised as to the primary goals of the institution.

Unknown Speaker: Does the record show where she had had medical school experience before and why she did not stay there?

Mr. Marvin E. Wright: Your Honor, she had one year in a PhD. program in Pharmacology at Duke University.

Now the significance of that is the fact that the PhD. program there, the first year is the same curriculum as first year medical students have at Duke University.

She next attended the Womens Medical College in Pennsylvania and after a few months withdrew in good standing because of ill health.

Unknown Speaker: Sorry to ask you so many questions.

Mr. Marvin E. Wright: That is alright.

Unknown Speaker: Approximately how many student in each class

Mr. Marvin E. Wright: Well Your Honor the --

Unknown Speaker: At your school at --your client's school.

Mr. Marvin E. Wright: The school, you mean at University of Missouri, Kansas City

Unknown Speaker: Yes.

Mr. Marvin E. Wright: Your Honor I can not give you the exact figures.

I believe that the institution is running approximately 75 to 100 students per class.

Unknown Speaker: And does the record show how many do not involuntarily leave?

Mr. Marvin E. Wright: No, Your Honor there is nothing in the record pertaining--

Unknown Speaker: So as far as the record show Ms. Horowitz might have been the only one or she might have been one of a dozen.

Is that right?

Mr. Marvin E. Wright: As far as the record is concerned that is true Your Honor.

I know there have been other students which have been dismissed for academic deficiency but that is not in the record.

Unknown Speaker: So we do not know if she is the only one or were there others and --

Mr. Marvin E. Wright: Well Your Honor she was not and she has not been the only one that has been dismissed from the institution for academic deficiencies.

Unknown Speaker: Her year ,were there any others.

Form her class were there any others?

Mr. Marvin E. Wright: I do not believe so Your Honor.

I believe she was the only one that was dismissed at that time.

In this case, at the time that the respondent was dismissed from the medical school, the status of the law so to speak in the country was that it was necessary for a student who was being dismissed for academic deficiency to receive a notice of charges and a hearing.

Unknown Speaker: You said at that time.

Mr. Marvin E. Wright: Yes Your Honor

Unknown Speaker: Do you think except for this case, the status of the law has changed?

Mr. Marvin E. Wright: No, Your Honor I do not feel that it has.

I think that the decision of the Eight Circuit Court of Appeals in this case and I respectfully submit this that the Court is mistaken in the interpretation which they not only placed upon an earlier decision of their's and upon misinterpretation of decisions of this Court.

And I would speak primarily to the fact that the first case that of Connelly versus University of Vermont medical student case where the court set forth the reasoning for there being no necessity for notice of charges in the hearing.

And there were several other cases including the Fifth Circuit which had held that that was true.

Now, the Eight Circuit had handed down a Greenhill decision as Greenhill v. Bailey that of the medical school University of Iowa.

In that case, the Eight Circuit specifically held that the student was entitled to a notice of charges and a hearing but what they said in that case was because the school had stated that the student did not have the intellectual ability to be a doctor and further they communicated that to the Association of American Medical Colleges.

Now, they italicized in their opinion the fact that they were not sending this back for any hearing on performance of the student or an academic evaluation.

So, I would submit that the case did not stand for what the Eight Circuit majority indicated that it did.

Now there was a dissent.

We requested, a rehearing a transfer Court in bank the Chief Justice of the Eight Circuit wrote a dissent joined by two other judges pointing out that they had misinterpreted Greenhill and one of the other judges that joined in the dissent actually wrote the opinion in Greenhill.

Now, the Eight Circuit also relied upon the Roth decision of this court in 1972, Now, Roth involved a nontenured professor in the state of Wisconsin.

The court in that case did not find a deprivation of liberty interest nor did find a deprivation of property interest.

The court looked to the law of Wisconsin, looked to rules and regulations of the institution as to whether or not there was a property interest and found none to exist.

Now, I would submit that in the case we have before the court today, that a student in higher education in the state of Missouri does not have a right to a medical education.

There are no statutes in the state of Missouri extending such right.

Secondly the university of Missouri the rules and regulations of that university do not extend such a right.

With respect to the liberty interest, it was covered in Roth, the court looked to the good name reputation, honor and integrity as to whether or not it was adversely affected by what the government was doing to the given individual.

As I previously stated, the court found in that case that there was not a stigma, there was not a liberty interest because of the fact that there was no showing that there was a charge or allegation of dishonesty, immorality or that the charge is going to seriously damage the standing of the individual in the community.

Now, I would submit to the court that this is certainly the situation in the case that we are considering today because the university at no point in time has ever challenged the honesty, the morality, the integrity or the intellectual ability of this student.

I would further submit that the liberty interest, the medical student and the University of Missouri is not any greater than the liberty interest of a non tenured professor.

Now in the Roth decision it was pointed out that the individual might be some what less attractive for other employment and I do not think there is any question of what the individual would be some what less attractive but the individual was not foreclosed from seeking other employment, even in the state of Wisconsin.

I would submit that in the case that which we have, I do not think there is any question of what the student would be somewhat less attracted to other medical schools.

Justice Thurgood Marshall: She could not be admitted to any other unless she was subject to be readmitted to this school is not that what the rule is?

Mr. Marvin E. Wright: No Your Honor I do not believe that is the rule.

Justice Thurgood Marshall: Is that not the rule amongst the association of the medical colleges?

Mr. Marvin E. Wright: Not to my knowledge no sir it is not.

Justice Thurgood Marshall: You do not know?

Mr. Marvin E. Wright: I do not – I cannot answer clearly 100% guarantee but I do not believe that is the ruling of the association.

Chief Justice Warren E. Burger: Is there any evidence on that subject at all?

Mr. Marvin E. Wright: Yes Your Honor there was evidence there was one professor not professor pardon me one of the seven examining physicians Dr. Cohen stated that he felt that a dismissal for academic deficiency would affect the ability of the student to get into other medical schools and to obtain employment in other areas, health related areas.

I would submit that there is not any question about what they are going to be some what less attractive but it does not foreclose.

Unknown Speaker: Did Dr. Cohen attribute that to some fixed rule or just his subjective judgment?\

Mr. Marvin E. Wright: No Your Honor, I think it was his subjective judgment and he readily admitted that medical experts can disagree as far as the performance of given individual or given student.

Justice Thurgood Marshall: May be I should ask him that is this school approved by the association?

Mr. Marvin E. Wright: Yes Your Honor it is.

Justice Thurgood Marshall: When?

Mr. Marvin E. Wright: Well it had provisional accreditation when it opened its doors in 1971.

Justice Thurgood Marshall: And when did it get final approval?

Mr. Marvin E. Wright: Your Honor it received approval approximately I believe six or seven months ago.

Justice Thurgood Marshall: So the rule of the associate would not apply to this case would it?

Mr. Marvin E. Wright: What rule is that your honor I am sorry.

Justice Thurgood Marshall: That you cannot be admitted unless you are eligible to be readmitted to the school that you are let out of.

Mr. Marvin E. Wright: Well, Your Honor the situation is, is in the performance or the evaluation in the final action as far as dismissal of the student the Deans very rightly pointed out the coordinating community which is in the record of the fact that this student was free to apply for readmission to the school.

Unknown Speaker: Mr. Wright, you stated that there is no right in the Missouri to a medical education, I think we could accept that certainly, assuming for the moment, is the situation changed after the medical school accepts an individual for admission to the medical school at least there is some expectation of graduating is not there?

Mr. Marvin E. Wright: Your Honor I did not feel that the situation changes, undoubtedly the student is closer to becoming a medical doctor but the admission to the school means that the student is entitled to be treated in the same manner as other students in that institution.

Unknown Speaker: Well, the fact, that sometimes present a question that whether not student is so treated?

Mr. Marvin E. Wright: Your Honor, that question arose in this case.

The allegations were very specific in this area and the finding was specifically that there was disparate treatment between students in the institutions.

Unknown Speaker: Mr Wright, if she had graduated would she automatically be eligible to practice medicine or would she have had to take a further examination some time, something in the records suggests graduation qualifies a person to practice.

Mr. Marvin E. Wright: Your Honor you must graduate from a credited medical school in state of Missouri before you are even eligible

Unknown Speaker: I understand.

Mr. Marvin E. Wright: For admission to the practicing medicine.

The students take examinations while they are in school and then also after school in order to qualify for practicing medicine in Missouri.

I reserve the remainder of my time.

Thank You.

Chief Justice Warren E. Burger: Very well Mr. Benson.

Argument of Arthur A. Benson Ii

Mr. Arthur A. Benson Ii: Mr. Chief Justice, may it please the court.

The respondent Charlotte Horowitz in this case was admitted to the medical school as the petitioners have acknowledged in the Fall of 1971 as an advanced standing student.

At that time it is correct that she was expected to graduate within approximately two years, although the evidence in the record appearing at pages 87 and 88 of the testimony is that that was the bare minimum of time which it would require her to graduate because she did not have the extensive medical background that some of her classmates admitted as advanced standing had, such as having completed degree in oral surgery, that two years was a bare minimum when she was admitted to this medical school.

At the time, she was admitted to the medical school, there were no course requirements for graduation.

It was not specified and the parties have stipulated this in stipulation 92 that appears at page 25 of the appendix that there were no particular number of courses had to be passed in order to graduate and that there were was no particular number of courses which if failed would result in dismissal.

The parties have also stipulated that stipulation number 29 at page 12, that this student passed every single course by receiving a satisfactory grade in every course up until may 1, 1973 at the time the committees finally determined she would not graduate.

In addition, the term satisfactory completion of the course is defined by the stipulations of the party at stipulation 82 on page 23 has meaning that this student had met the standards of acceptable performance by students at this school.

So, at the time she had virtually completed her two years of the medical school, she had passed every single course by receiving a satisfactory grade and it had been so informed.

Chief Justice Warren E. Burger: What about her patient relationship?

Mr. Arthur A. Benson Ii: That is just what I was going to address.

She had --

Justice William H. Rehnquist: That is one of the elements in the medical education.

Mr. Arthur A. Benson Ii: Yes.

The courses she took included clinical rotations.

For instance, pediatric was a rotation which she took which included clinical exposure to sick children as well as to the healthy children and she received a satisfactory grade for that and was communicated to her.

But, the same time she was completing that course and during that course some of the faculty were adversely evaluating her performance and were documenting their beliefs that her performance was somewhat less than satisfactory and yet from the record it is clear that she never saw those evaluations until after this litigation was commenced and they were produced in discovery.

She did not know that she had been deemed by some of her professors.

That she had although received a satisfactory grade had not satisfactorily enough completed those courses.

She did know however, that she was having some difficulties in clinical competence.

The first that she learned was the July 5, 1972 letter placing her on probation.

That letter which appears in the Appendix at page 180, however reflects only a concern about her relationships with other persons and then, with regard to the clinical aspect of that states that in order to improve her relationships with other person, she needs to begin keeping to establish schedules and meeting all clinical responsibilities on time and gracefully.

We are still not certain as to what on meeting a clinical responsibility gracefully means.

But, that was the first reference to some allegation that she was somehow deficient in clinical abilities.

Justice Thurgood Marshall: Mr. Benson, assuming that a medical school or any other school said that in order to graduate you must have a passing grade in every subject that you take.

Anything wrong with that?

Mr. Arthur A. Benson Ii: No.

I am sure, many schools do.

Justice Thurgood Marshall: Well, if they had that at this school, do they?

Mr. Arthur A. Benson Ii: No, they did not.

It is the party has stipulated, stipulation number 92, that they did not.

Justice Thurgood Marshall: If they did not have to them, but did they say they had to pass?

Mr. Arthur A. Benson Ii: No, the stipulation I believe is on page 25 is that policies and regulations of the medical school do not state the requirements for graduation in terms of the successful completion of any number, that should be over percentage of courses.

Nor do the policies of the medical school specify that students should not be graduated for not having successfully completed their course or courses.

Justice Thurgood Marshall: What is the basis of graduation?

Mr. Arthur A. Benson Ii: Well, that is --

Justice Thurgood Marshall: You see what my trouble--

Mr. Arthur A. Benson Ii: That is an excellent question and that this something that this student having gone through two years of this medical school having up until May 1st of 1973 having received a satisfactory grade and the only grades that you get at this medical school are satisfactory, unsatisfactory or no credit, having gotten the highest grade that she could receive.

Justice Thurgood Marshall: Well, I assume here to say if they did require passing in every subject you would not be here?

Mr. Arthur A. Benson Ii: Well, I am-- no that is not quite right because --

Justice Thurgood Marshall: Well, if you are going to, you are to going to upset a lot of schools in this country.

Mr. Arthur A. Benson Ii: Well, our allegation is that when a professional graduate school, where the student is in the school with an aim towards a, clearly a particular field and that school slams the door in the face of that student's being able to get into that professional field that, that is a foreclosure of -- full range of employment opportunities which this court has in the past in similar circumstances and should in this case require a due process hearing.

Justice William H. Rehnquist: Mr. Benson, you say that the graduation for kicking somebody out in effect of a professional graduate school, forecloses employment opportunities but surely that forecloses fewer professional opportunities than being flunked out of college, being flunked out of college forecloses fewer that have been flunked out of high school, it seems to me that, if we were to adopt your question, your proposition, we would be left with a proposition that there is a due process hearing for – a flunking anyone out of any public educational institute.

Mr. Arthur A. Benson Ii: Well, I believe that, that would be correct and I do not believe that is-- should be in a impediment to adopting such a ruling because in Goss V. Lopez, this Court has required due process hearings for clearly disciplinary reasons.

Now, when if the Court agrees that there is a foreclosure of a range of professional or employment opportunities.

Then a due process hearing is required but the format of that due process hearing can be determined by the institution within the guidelines of Matthews v. Eldridge decision of this Court and in the example that you gave, a student who flunked some courses in history in an undergraduate college might find the due process requirements satisfied simply by a letter from the Dean indicating that the student had failed courses A, B and C and that the student differed with that finding that he could appear in the Dean's office on Friday at 1:30 and if they would like to see the records, he could ask in advance for them to be produced.

And he could have a hearing with the Dean.

I believe that would suffice and in many educational institutions do that informally or formally now throughout the nation and so requiring a due process hearing before student is expelled would not place any substantial burden upon any of the educational institutions.

In a professional graduate situation however, if the due process hearing under Matthews v. Eldridge type of test might be somewhat more involved.

In this case, all we are asking for is a-- some written specifications to the student.

Who had thought throughout her college career, her graduate career that she was satisfactorily completing the requirements of the course.

Justice William H. Rehnquist: What about the probation, only six months after she entered the school?

Mr. Arthur A. Benson Ii: Yes.

At the completion of her first year, she was placed on probation as I indicated, the probation letter stated that her clinical deficiencies had to do with being on time and meeting of responsibilities gracefully.

It was in the later letter, she was -- it was advised in the term clinical competence.

I believe it is the February 1973 letter, which --

Unknown Speaker: That letter was a little more detailed on timeliness and grace.

Mr. Arthur A. Benson Ii: The probation letter of July stated keeping to establish schedules.

Meeting all clinical responsibilities on time and gracefully and that is the only reference to clinical--

Unknown Speaker: That it goes on --

Mr. Arthur A. Benson Ii: And it goes on to say --

Unknown Speaker: You do not need to, but it certainly says more than those two things.

Mr. Arthur A. Benson Ii: Yes and says attending gracefully, the personal appearance, carefully to her personal appearance including hand washing and grooming.

Participating appropriately in the activities of the school and directing criticisms and suggestions materially to her docent.

Now, those are types of, what would-- we maintain are clearly conduct related accusations.

Chief Justice Warren E. Burger: Did not that put around a notice quite early that all was not well?

Mr. Arthur A. Benson Ii: Yes, it did.

No doubt about that and she received additional notice in the February 7th letter which appears at 182 of the Appendix.

When she was told that she would not graduate and she was told that the reasons were clinical competence.

But, it is not further specified or defined.

Care and patient relations. Personal hygiene and ability to accept criticism.

It appears that it is a condensation of the same four reasons that it had been spelled in the July 5th letter probation.

Unknown Speaker: Mr. Benson, the due process clause of the Fourteenth Amendment comes into play if and only if there is a deprivation of life, liberty or property.

Now clearly here there was not a deprivation of life.

It is not clear to me so far from your oral argument, whether your claim is that there was a deprivation of liberty or property.

I had understood your brief to say only that there was a deprivation of liberty.

Mr. Arthur A. Benson Ii: Yes, our primary --

Unknown Speaker: And now you apply that as I understood that there are some sort of upon acceptance to this educational institution.

There was a vested right to graduate and if so that would be a claim that there was a property, right?

Mr. Arthur A. Benson Ii: That is correct.

Unknown Speaker: A equivalent of more or less analogous to a tenure for a faculty member rather than -- but, I did not understand that claim to be made at all in your brief.

Mr. Arthur A. Benson Ii: Well, in our brief we primarily address ourselves to the question of the liberty interest.

The foreclosure of performing.

Unknown Speaker: We missed at one of those three deprivations that due process clause is not implicated at all.

Mr. Arthur A. Benson Ii: I believe in this case that primarily has been deprived of her liberty interest in pursuing her chosen career.

A common occupation of life in the medical profession.

I believe that has been clearly established by, one the fact that she had a job--the North Carolina, Medical School, Department of Psychiatry contingent upon receiving the degree from the school she lost the job at North Carolina, that is a clear foreclosure of an employment opportunity and which is of record and secondly Dr. Cohen testified in his expert and uncontroverted testimony that the student was virtually precluded from ever again obtaining admission to any other Medical School or for finding employment in medically related field, a clear deprivation of her liberty interest in employment.

Now with regard to the property interest I believe that it is secondary but nonetheless important because at the time she entered school, she had, I believe a reasonable expectation of an entitlement to a degree if she would meet the requirements of the school.

Now the school here did not spell out its requirements for graduate admission.

Unknown Speaker: But they did tell her that she have not met them?

Mr. Arthur A. Benson Ii: It told her that she had not met them and that she would not be graduated.

Now there is a difference between not being graduated and being dismissed from the school because at the time she was told that she would not be graduated, there was the expectation that she would be continued in school for an additional length of time.

The school called that deceleration and other students were decelerated and in fact she was specifically told that the committees would meet at some later time to determine whether or not she would be continued in school or dismissed and in May of 1973 the decision was made that after this reviewing procedure that no new information have been presented and the school would stand by its decision not to graduate her.

Then at the end of that month a whole new set of hearings were held without knowledge to her, without an opportunity to attend in which it was decided she would be dismissed from the school and so she was placed on notice that she would not graduate but she was never placed on notice that she would be dismissed from the school.

Chief Justice Warren E. Burger: I take you back to the two letters that you referred to page180, the first paragraph, the first frequent and long discussions and then at page 182 again the letter opens that is in February 1973 refers to long and detailed meetings which she had had with various doctors and it concludes, throughout the conclusion of our meeting the point was made that you have the option of requesting a special set of oral and practical examinations as an appeal of the decisions which were discussed in our meeting and which are set forth in this letter.

Did she ever ask for those oral examinations?

Mr. Arthur A. Benson Ii: Yes she did.

Chief Justice Warren E. Burger: Then what happened?

Mr. Arthur A. Benson Ii: The seven examining physicians reviewed her, interviewed her and they submitted their findings.

Of the seven two recommended that she graduate, two recommended that she be dismissed, two recommended that she be continued on probation and recommendation of the seventh was indeterminant.

In any event, there was no clear majority of the recommendations from those seven examining physicians and the Medical School had established a tallying procedure as to what to do in the event there was no clear majority and that required calling the physicians together so that they might discuss the evaluations and resolve the differences and yet this Medical School failed to do this, failed to take advantage of the rule that was for the advantage of the student and I think that is an important failure on the part of Medical School because it precluded the opportunity that these seven examining positions might have come together having discussed their differences and agreed that perhaps would be appropriate to continue her on probation to allow her to deceleration option if it was available to them.

Chief Justice Warren E. Burger: If the seven had such a collegial process and voted for the three, now that she was not to continue as a student would you be here?

Mr. Arthur A. Benson Ii: Well we might be because the--

Chief Justice Warren E. Burger: Well that is an important issue--

Mr. Arthur A. Benson Ii: It is.

The process is not really an appeal, although it was called an appeal by the Medical School, it was purely advisory.

It was not to a higher body within the school but had any ultimate decision making authority and in this case it was, the recommendations from these examining physicians came back to the same committee that had requested them.

So it was not an appeal and whether that meets the procedural requirements of Due Process, I doubt.

But in any event that did not happen here and the recommendations came back without any unanimity much less majority opinion.

Justice William H. Rehnquist: Mr. Benson in response to my brother Stewart's question you said that your brief discussed primarily the liberty interest but suggested also discussed property interest.

Do you remember off hand where in your brief you discussed property interest?

Mr. Arthur A. Benson Ii: Well, the statement of facts, we did not.

We discussed the question says her admissions, the interview at that time, the fact that she was interested in academic psychiatry at the time she was admitted, that the school was offering a clinical program--

Justice William H. Rehnquist: Is any part of the legal portion of your brief is devoted to a discussion--?

Mr. Arthur A. Benson Ii: No it is not.

Unknown Speaker: But you are relying on a hearing.

Mr. Arthur A. Benson Ii: Well, a primary reliance is--

Unknown Speaker: Well then yes or no?

Are you relying on the property interest ?

Mr. Arthur A. Benson Ii: Yes.

Unknown Speaker: The case really is a procedural Due Process case, I take ?

Mr. Arthur A. Benson Ii: As approaches this case--

Unknown Speaker: If you had had what you thought was full procedural Due Process, would you think the decision to expel would be subject to judicial review?

Mr. Arthur A. Benson Ii: Well if it were the same decision, it would be subject to the judicial review only on an allegation of arbitrary capriciousness.

Unknown Speaker: Well, now I take it that there was a full trial in the District Court on whether or not that she was properly expelled within the rules of university?

Mr. Arthur A. Benson Ii: Well, the issue on the Trail Court was whether or not she was entitled to Due Process hearing prior to her dismissal.

The court made findings that she had been dismissed for reasons which were adequate but that was not the--

Unknown Speaker: And full compliance with the University rules had been had?

Mr. Arthur A. Benson Ii: That is correct but that was--

Unknown Speaker: Why do you think the hearing that she had in the District Court with respect to the validity of her dismissal does not satisfy any procedural Due Process requirement?

Mr. Arthur A. Benson Ii: One of the advantages of a procedural Due Process hearing within the educational institution is as this court recognized in Goss v. Lopez is to give the grieved student an opportunity to characterize his conduct.

It would provide an opportunity to--

Unknown Speaker: She had plenty of opportunity to characterize her conduct here in the District Court, I take it?

Mr. Arthur A. Benson Ii: Yes, but the question before the District Court was only whether she had a legal entitlement to a pre-dismissal hearing.

She did not come to the District Court to offer evidence in mitigation, for instance, nor to characterize her conduct with regard to whether she should be entitled to deceleration option or not.

Those issues were not before the District Court.

Unknown Speaker: May I ask you this way, suppose you won here and that the Court of Appeals was -- what standard would the court require the University to impose as a pre-eviction ruling?

Its probable cause to believe or they have to make some final --?

Mr. Arthur A. Benson Ii: In order to hold the hearing or to effect the dismissal?

Unknown Speaker: To effect the dismissal.

Mr. Arthur A. Benson Ii: The--

Unknown Speaker: Prior to, what standard do they apply and what kind of finding must they make prior to dismissal?

Mr. Arthur A. Benson Ii: They may make any finding withing their discretion provided that it is neither arbitrary nor capricious nor in bad faith.

Unknown Speaker: Yes but what if they say, there is probable cause for us to believe that you do not measure up and so you are being dismissed but there will be a full hearing available to you later?

Well, we then must make a final judgment.

Mr. Arthur A. Benson Ii: I believe that it should be a prior hearing, prior to the dismissal to meet the requirements of not--

Unknown Speaker: What case do you rely on for that?

Mr. Arthur A. Benson Ii: Well in the--

Unknown Speaker: What administrative hearing must make a final judgment on the merits?

Mr. Arthur A. Benson Ii: Well, in order to avoid foreclosing the range of employment opportunities.

I believe it is a reasonable inference to require--

Unknown Speaker: What if she was dismissed and then she had an opportunity for a full hearing and she won it?

Mr. Arthur A. Benson Ii: And if the hearing were held sometime immediately following her dismissal, I suppose it would meet the requirements of Due Process, provided it were sufficiently soon after her dismissal to avoid the foreclosure of a range of employment opportunities.

Unknown Speaker: Well what if there was an administrative hearing in which they listened to her side of the story but they made some, they concluded there is reasonable cause to dismiss and then told her if you like a full hearing we will see it in court?

Mr. Arthur A. Benson Ii: Well, in court would not be satisfactory for a number of reasons.

First, legally the judge, the Federal District Court would not have the authority to weigh facts in litigation of --

Unknown Speaker: What case do you rely on that the final Due Process hearing, that makes the final judgment must be administrative rather than judicial?

Mr. Arthur A. Benson Ii: It is the State that is foreclosing the range of employment opportunities so it must be the State which affords the Due Process hearing--

Unknown Speaker: Well, what if they have a court system and say we just want to make sure we have a disinterested judge, we do not want to be accused of that and we do not want to be accused of having inadequate procedure, no cross-examination.

So we will have the full we will give you the full treatment in court and if you object to the burden of proof, we will assume it.

Mr. Arthur A. Benson Ii: If the state wished to establish that by statute that would in my opinion meet the requirements of due process, but that does not happen here.

Unknown Speaker: It is already established by statute in the sense of that she can go to court and sue the university.

Mr. Arthur A. Benson Ii: No because she can only go to court under the 42 U.S.C. 1983, seeking here and the adjudication that she was entitled to due process hearing from the state.

Unknown Speaker: Well, I know but could not she go into a state court and have the kind of hearing she wanted.

Mr. Arthur A. Benson Ii: I believe she could only have a hearing on the issue of whether she was not entitled to hearing from the state.

Unknown Speaker: Why is that I thought you said it was subject to the judicial review the judgment of the --

Mr. Arthur A. Benson Ii: Only the ultimate decision of the agency which is foreclosing the employment opportunities is subject to the limited judicial review of arbitrary and capricious deprivation of her rights.

Chief Justice Warren E. Burger: But how would they determine arbitrary unless they must review the merits.

Mr. Arthur A. Benson Ii: Well the burden of proof would be substantially different and that that is no different than existing role right now, any student who believes that he or she has been arbitrarily deprived of a property of liberty the interest may go the Federal District Court, but under the due process hearing which we believe is required here, that judicial review would be facilitated because the due process would require a written notice and it would require some record of due process hearing.

That might only be minutes, but that would provide a record of the due process hearing, a presumption of regularity would attach to it and the burden of proof would be substantial for a student who wished to go on to court to review that decision or an allegation --

Justice Thurgood Marshall: You do not want any thing more than Goss against Lopez do you?

Mr. Arthur A. Benson Ii: Beg your Pardon.

Justice Thurgood Marshall: You do not want any more than is in Goss against Lopez.

Mr. Arthur A. Benson Ii: Well I do not believe the issues is now before us is to whether or not, there is right of council, for instance in such a due process hearing.

I believe that --

Justice Thurgood Marshall: That is what I want to know, would you be satisfied with it?

Mr. Arthur A. Benson Ii: I believe that it would be sufficient to allow the medical institution to in the first instance establish its procedures that meet the minimal requirements of due process, so that this court is not in the position of dictating the format of the due process hearing for every graduate educational institutions in United State, some might find that right of counsel would not facilitate the due process hearing and in others where the issue are more complicated right of counsel might be of advantage --

Justice Thurgood Marshall: But why in the world do you want counsel --

Mr. Arthur A. Benson Ii: I am not certain to counsel --

Justice Thurgood Marshall: But you want to lay it on the other side is it not?

Mr. Arthur A. Benson Ii: I am on both side if counsel were available I am sure, that they would be available to both sides, but where they are difficult --

Justice Thurgood Marshall: You do not insist on that do you?

Mr. Arthur A. Benson Ii: We are not insisting our right of counsel at this point, we are simply --

Justice Thurgood Marshall: You would be satisfied with --

Mr. Arthur A. Benson Ii: We will be satisfied with an administrative hearing within the educational institution provided that the rules were established in advance and that there was written notice and that there was some means of record --

Unknown Speaker: What is the principle procedural defect that you complain of?

There is something entitled to due process but what is the principle defect in the proceedings given your client by the University?

Mr. Arthur A. Benson Ii: The student Horowitz was not advised in writing of the details of --

Unknown Speaker: The constitution required be in writing rather than oral was she advised orally there is lot of testimony and some findings about, there are hundreds of oral conversations.

Mr. Arthur A. Benson Ii: That she had hundreds of oral conversations with her docent who was the primary teaching and her docent was repeatedly telling her that her clinical competency was sufficient to graduate well he--

Unknown Speaker: That is not what the District Court found.

Mr. Arthur A. Benson Ii: Well that is what the his testimony is in the record of the --

Unknown Speaker: He, for example testified that on hundreds of occasion, over hundred occasions he told her that her appearance was unsatisfactory and then repeatedly she was advised she had to have a white clean white coat, now I do not know how important that is, but suppose if she did not have a clean white coat and never gotten one, would it be arbitrary for them to say you cannot graduate if you cannot form a habit of wearing a clean white coat and interview patients.

Mr. Arthur A. Benson Ii: No I do not believe that would be arbitrary.

Unknown Speaker: Well, was she not advised that that was one requirement she had to cure?

Mr. Arthur A. Benson Ii: Yes and there is no evidence to that --

Unknown Speaker: Well then why did not she have adequate notice?

Mr. Arthur A. Benson Ii: If she did not cure it.

The adequate notice I was about to mention was to the the school place has great reliance upon the clinical competence and yet the allegations of her alleged deficiencies in clinical competence were never spelled out to her in any means and --

Unknown Speaker: Now, do you insist, the principle, I want to know what the the major weakness is -- is it that, it was oral rather than writing or none at all?

Mr. Arthur A. Benson Ii: The major weakness in this case was that she had no opportunity to appear before the committee with knowledge of what ---

Unknown Speaker: But she appeared before seven separate doctors--

Mr. Arthur A. Benson Ii: Yeah but they had no authority, their judgments were covered the gamut of recommendations and it was ignored by the medical school, but the major --

Unknown Speaker: What was ignored by the medical school?

Mr. Arthur A. Benson Ii: The judgments of the medical school, a majority of them at least four recommended either that she graduate on schedule or that she be continued on probation four of the seven recommended one of those two options and yet that recommendation was ignored and she was dismissed from the medical school, but the major deficiency is that she never had an opportunity to appear before the coordinating committee which was the committee which was making the decisions as to whether or not she should be graduated or not and she had an opportunity to appear before that committee armed with the allegations against her knowledge of them, notice of them and with an opportunity to rebut them.

She had no opportunity to argue before that committee, the circumstances that would characterize her conduct --

Unknown Speaker: This argument would be equally strong and even if she had such opportunity before each of the seven doctors who did interview her in person.

Mr. Arthur A. Benson Ii: Well if she did and if they had authority to make decision ---

Unknown Speaker: Make a decision, they could only recommend that is not enough to appear before recommending group, she must appear before the final decision maker.

Mr. Arthur A. Benson Ii: That is right, so --

Unknown Speaker: So what sort of shows this?

Mr. Arthur A. Benson Ii: So that she could argue mitigation, so that she could argue the characterization of her conduct in the event that she decided to do that in instead of denying --

Unknown Speaker: There are a lot of of bar review procedures where the lawyer who is subject to discipline appears before a committee that then makes a recommendation either to the court or to the some other body before when he does not specifically appear and yet generally has been thought alright.

Mr. Arthur A. Benson Ii: Those recommendations, as I understand them are binding unless overturned by higher authority that the --

Unknown Speaker: Do you have a case that holds that there is right to appear before the decision maker as opposed to before a body making recommendations to the decision maker.

Mr. Arthur A. Benson Ii: I am certain that there are cases but I cannot recall one --

Unknown Speaker: This is your critical argument, you have no case right?

Mr. Arthur A. Benson Ii: Yes and the – I believe Goss versus Lopez states in it that with that is a conduct related case, that the right to due process hearing is before some authority of the school.

Unknown Speaker: Do you think it is constitutionally deficient to have seven doctors interview a person considered for graduation at a length, discuss the whole problem, then the seven make written recommendations to the President of the university.

The President of the university can not decide whether dismiss without interviewing the student himself.

That is your position

Mr. Arthur A. Benson Ii: In this case it is, but for two reasons because the majority opinion of the recommendation of the those seven examining physicians was ignored and because the procedure of the school in establishing that process of examination was also ignored and that the seven examining physicians were not called up together to discuss their opinion and to resolve differences So, in that respect she was denied procedural due process because the school failed to follow its own rules.

Unknown Speaker: That is a different that critical defect, failure to follow to its own rules.

Mr. Arthur A. Benson Ii: That is right and we discuss that more fully in the brief but the primary importance of the due process hearing here is for Horowitz to have had an opportunity to come forward and said I only had two years at this medical school, I may have some clinical deficiencies.

It was excepted that I might require more, I have to see that my time is expired.

Unknown Speaker: May I ask one other question because I may have missed that, you emphasized the distinction between failure to graduate and being dismissed.

You said she had notice of the former but not the later.

Mr. Arthur A. Benson Ii: Yes.

Unknown Speaker: But the letter of February 7, 19773 from Dean Norbeck access – you have to make improvement or you will not be able to continue in the medical school after May of this year.

Isn't that notice of possible dismissal?

Mr. Arthur A. Benson Ii: Well it is a warning but the decision as to whether or not to graduate her was not be considered until May of 1973 that it was decided at that time to initiate a series of committee meetings to determine whether or not she should be dismissed.

Unknown Speaker: But is this not notice that she might be -- she was subject to dismissal?

Mr. Arthur A. Benson Ii: Well I think she knew all along any student knows all along that you can be dismissed for something that the schools have the authority to dismiss its student at some point for some time, but she never received a formal notice from the school that she had because of certain deficiencies which were spelled out in the notice, a committees would be meeting to determine whether or not she should be dismissed and that she have an opportunities to appear in that meeting and rebut the allegations.

Thank you.

Chief Justice Warren E. Burger: Mr. Wright.

Rebuttal of Marvin E. Wright

Mr. Marvin E. Wright: Mr. Chief Justice, and may it please the court.

I would like to, to merely point out to the court that it did not come as a bolt of lighting from the sky to the student, when the student was notified of dismissal from the institution. It started with in March of 1972, with the clinical competency problem and pediatrics of which she was advised of the problem by her docent.

We then get to the point where in July of 72, when she is placed on probation by the institution after the committees had considered it.

The Dean, the chairman and the counsel on evaluation and her Docent sat down and discussed with her all the problems that she was having.

She received a written notification setting forth the same factors.

Again in October 1972, three months later her docent was concerned about her performance.

Unknown Speaker: Well Mr. Wright, I think your position is that the total process to which she was (Inaudible), the university gave her.

That was the end of line, she never was going to have another hearing inside the university or out.

Mr. Marvin E. Wright: No, Your Honor obviously, she was having hearing outside because that is why we are here today but might --

Unknown Speaker: How about in the State Court you could she have got review of the university's decision to expel her?

Mr. Marvin E. Wright: Your Honor I think that she could have.

Unknown Speaker: Or you think is there some established statutory proceeding --

Mr. Marvin E. Wright: No, no Your Honor I am sorry there is not--

Unknown Speaker: Well what was she has done --

If she had gone to State Court and wanted to -- a full blown trial on her expulsion could she have obtained it?

Mr. Marvin E. Wright: Your Honor I do not believe so, because I do not believe that the courts in Missouri at least to my knowledge will not get into the subject before evaluation.

Unknown Speaker: So you are answer is that under the Missouri law that she has already at the end of the line when the university made its own decision she could not get it reviewed in the State Courts.

Mr. Marvin E. Wright: No Your Honor not as far as these subjective evaluation of grading is concerned.

Unknown Speaker: Well or on any other basis, she could get no review in the State Courts of that decision to be expel.

Mr. Marvin E. Wright: Yes I believe she could have, Well, from the stand point of view of whether or not the decision was arbitrary or capricious, without that is in fact the same as it is in the Federal Court.

Unknown Speaker: Was there an established procedure for doing that under the Missouri statutes?

Mr. Marvin E. Wright: No Your Honor there is not a – that a

Chief Justice Warren E. Burger: The Missouri Court can enforce 1983, can it not, the State court?

Mr. Marvin E. Wright: Well Your Honor I am sorry.

Chief Justice Warren E. Burger: The State Courts could apply Section 1983 could they not?

Mr. Marvin E. Wright: Well, I believe they could, form the stands point of --

Chief Justice Warren E. Burger: Well, that is a process is it not?

Mr. Marvin E. Wright: Oh, Yes Your Honor, I believe it is and it well I was --

Unknown Speaker: Well my question is Mr. Wright is what about state law?

Mr. Marvin E. Wright: State law Your Honor does not require the university to have a notice of charges and a hearing on --

Unknown Speaker: No Mr. Wright I gather that some review administrative agency determination in Missouri courts is that not?

Mr. Marvin E. Wright: Oh yes most of that.

Unknown Speaker: Would this fit with any those procedures whatever they may be?

Mr. Marvin E. Wright: I believe that it, because there are specific statutory provisions whereby one can appeal out of an administrative hearing.

Unknown Speaker: Well, it can be a hearing de novo in any such proceeding or would it just be a review on the record and an affirmance unless there were some basis for finding it arbitrary or capricious?

Mr. Marvin E. Wright: I believe Your Honor it would be review on the record.

Justice Thurgood Marshall: Is in there a precedent that the University of Missouri is subject to mandamus action.

The case of Games against Canada.

Mr. Marvin E. Wright: Most certainly Your Honor.

Chief Justice Warren E. Burger: It is true.

Your time is expired counsel

Mr. Marvin E. Wright: Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.