Henry L. Martin v. Orrin L. Helstad, Gerald J. Thain and Joseph R. Thome

699 F.2d 387, 1983 U.S. App. LEXIS 30838, 9 Educ. L. Rep. 113

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 2, 1983
• Docket: 81-2488
• Status: Published

Opinions

CUMMINGS, Chief Judge.

Henry L. Martin appeals from an interlocutory order of the district court denying his motion for a preliminary injunction enjoining the University of Wisconsin Law School (hereinafter “Law School”) from interfering with his registration at the Law School pending resolution of the merits of his due process claim. Jurisdiction is based on 28 U.S.C. 1292(a)(1). We affirm on the ground that injunctive relief is not warranted because the appellant has not satisfied any of the factors justifying the grant of a preliminary injunction.

I.

In December 1980 the appellant applied for admission to the Law School for the August 1981 term. Question 6(b) of the application for admission asks inter alia if the applicant had ever been convicted of criminal conduct. The appellant answered “yes” to question 6(b). If an applicant answers “yes” to Question 6(b), the application requests a full explanation. The appellant responded “I am a, former legal offender. I received a full pardon in 1971 from former Wisconsin Governor Patrick J. Lucey. This pardon is on file in the Secretary of State’s office.” The appellant was notified of his acceptance to the Law School on March 5, 1981, and accepted the offer of admission on April 10, 1981.

On July 21, 1981, the appellant’s case manager informed the Law School that appellant was then incarcerated in a federal prison in Milan, Michigan, serving a ten-year sentence for interstate transportation of forged securities. Appellee Thome and the appellant spoke by phone¹ on July 22, 1981, and Thome told him “that the federal conviction and his failure to disclose it affected his admission to the Law School.” Thome directed the appellant to send the Law School “official information regarding this conviction.” The appellant asserts that Thome directed him to write a letter explaining the circumstance behind his conviction and incarceration. The appellant responded with a letter attempting to explain why he did not “mention or detail” his federal conviction.

On July 24,1981, the Law School notified the appellant by letter that it was reconsidering his application “[b]ecause of your failure to disclose material facts as requested.” The letter specifically stated that a misrepresentation constituted grounds for rescinding the appellant’s admission. The letter concluded:

Before taking this step, however, we will review the materials you are now in the process of sending us. Of particular importance is a full explanation of your present conviction and incarceration and the reasons why you failed to disclose this information to us.

The appellant’s letter to the Law School, however, was mailed prior to his receipt of the letter from the Law School to him. The appellant did not communicate again with the Law School after July 22, 1981. On August 4,1981, the Law School revoked the appellant’s admission to the Law School on the grounds that the appellant’s application had failed to disclose his federal conviction and that his conversation with appellee Thome on July 22, 1981 and subsequent letter to the Law School implied that his federal conviction was about to be vacated. In fact his conviction had already been upheld on direct appeal and the appellant was challenging his conviction in a collateral action raising many of the same issues that had been decided on direct appeal.

The appellant filed this action on August 17,1981, asking for declaratory and preliminary and permanent injunctive relief prohibiting the defendant-appellees from interfering with his registration at the Law School. The appellant claims the denial of procedural due process rights in that the Law School revoked his admission without notice or hearing and pursuant to vague or nonexistent standards. A hearing was held on the appellant’s request for a preliminary injunction on August 26,1981. The district court found that the appellant did have a property interest in his admission to the Law School based on the Law School’s offer of admission and his acceptance of that offer. The district court went on to find, however, that the appellant had received all the process he was due. The appellant was allowed to respond to the threatened rescission by letter, affidavits and other documents. The district court held that because of the question presented — whether or not the appellant had failed to disclose his federal conviction — an opportunity to be heard by letter, affidavit or other documentary material was sufficient. An order denying the appellant’s motion for a preliminary injunction was filed on August 27,1981, and the appellant filed a timely notice of appeal.²

II.

This court will not reverse a grant or denial of a preliminary injunction absent a clear abuse of the district court’s discretion. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 613 (7th Cir.1982). Furthermore, the deference accorded that discretion is enhanced when the decision is one, such as the decision here, which preserves the status quo. United Church of the Medical Center v. Medical Center Commission, 689 F.2d 693 at 698 (7th Cir.1982). Four factors enter into the district court’s exercise of discretion to grant or deny a preliminary injunction: (1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant; (3) whether the plaintiff has at least a reasonable likelihood of success on the merits; and (4) whether the granting of a preliminary injunction will disserve the public interest. Atari, supra, at 613. The district court concluded only that the plaintiff failed to meet the threshold requirement of showing likelihood of success on the merits, and did not address the other factors denying the appellant’s motion. Kolz v. Board of Education of City of Chicago, 576 F.2d 747, 749 (7th Cir.1978).

The merits of this case involve two issues: whether the appellant has a property interest in his law school admission, and if so, what process is due him before that admission can be revoked. Although we have some reservations about the district court’s resolution of both of these issues, we do not find the abuse of discretion necessary to reverse the district court’s decision.

A.

As noted above, the district court held that the appellant had a property interest in his admission to law school. The property interest arose, according to the district court, out of the Law School’s offer of admission and the appellant’s acceptance of that offer.

Generally, property interests are not created by the Constitution but are created and defined by existing rules — such as state laws³ — or “mutually explicit understandings” that support a person’s claim to entitlement to the benefit and that he may invoke at a hearing. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972).

We express one concern with respect to the district court’s finding that the Law School’s offer and the appellant’s acceptance created a property interest in favor of the appellant. The concern is whether a mutually explicit understanding based on an offer and acceptance can exist when the offer is allegedly procured by the applicant's fraud. See Jago v. Van Curen, 454 U.S. 14, 23, 102 S.Ct. 31, 36, 70 L.Ed.2d 13 (1981) (Blackmun, J., concurring) (“I could also hold that no mutual expectations existed under the circumstances inasmuch as the parole board’s order was based on respondent’s untruths; respondent could not reasonably believe that there was a legitimate mutual understanding that he would be released.”)⁴ To hold that the applicant’s fraud prevents a property interest from arising out of the transaction, however, creates another problem: if no property interest in an admission to the Law School arises when the applicant lies on the application, and if the Law School can decide whether or not the applicant lied without granting the applicant a hearing, then the Law School could deny an applicant a hearing merely by saying the applicant lied.

Because the issues have not been sufficiently developed to permit us to rule unequivocably on the existence of the appellant’s property interest in his law school admission, we shall, for purposes of this opinion only, assume that such a property interest exists. Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 84-85, 98 S.Ct. 948, 952, 55 L.Ed.2d 124 (1978) (Court assumes the existence of a liberty or property interest but concludes appellant has not been deprived of due process). We turn next to the question of whether the appellant was denied due process when his admission was revoked.⁵

B.

The district court held that the appellant had received all the process he was due when he received the opportunity to submit written materials to the Law School prior to its reconsideration of his admission. The court’s holding was based upon its finding concerning the weight of the property interest the appellant had at that point in attending the Law School and based upon the precise nature of the issue presented: whether the appellant failed to disclose his federal conviction. Again, we cannot find that the district court abused its discretion in reaching that conclusion.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) sets out the factors to be considered in identifying the specific dictates of due process: (1) the private interest affected, (2) the risk of an erroneous deprivation through the procedure used and the probable value of substitute procedures, and (3) the government’s interest. We agree with the district court that prior to beginning classes, the appellant’s interest in his law school admission is not entitled to great weight. Cf. Brookins v. Bonnell, 362 F.Supp. 379, 383-84 (E.D.Pa. 1973) (potential enrollee may have no right to due process hearing to prove his right to admission).

With respect to the second factor, the risk inherent in the procedure used, we first note that deprivations of a property interest without opportunity for an oral personal exchange are generally disfavored. Gray Panthers v. Schweiker, 652 F.2d 146, 160-61 (D.C.Cir.1980). There are two exceptions to this rule, however, both of which are at least potentially applicable to the case at hand. First, academic dismissals, as opposed to disciplinary dismissals, require no hearing at all. Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 87-91, 98 S.Ct. 948, 953-955, 55 L.Ed.2d 124 (1978); Woodard v. Marsh, 658 F.2d 989, 998 (5th Cir.1981), certiorari denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982); Miller v. Hamline University School of Law, 601 F.2d 970, 972 (8th Cir.1979). The deference accorded academic dismissals is based on the policy of fostering academic freedom at the university level. Regents of the University of California v. Bakke, 438 U.S. 265, 311-15, 98 S.Ct. 2733, 2759-2761, 57 L.Ed.2d 750 (1978) (Powell, J.). This policy is of greater importance in the case of admissions. Id. at 312, 98 S.Ct. at 2759; Friendly, Some Kind of Hearing, 123 U.Pa. L.Rev. 1267, 1305 (1975). To the extent that the Law School’s reconsideration of the appellant’s acceptance to the Law School represented a reconsideration of his suitability as a law student and potential lawyer, then the revocation of his acceptance can be analogized more closely to an academic than it can to a disciplinary dismissal.

The second situation in which an oral personal appearance may not be required is in the situation that arose in Eldridge. When the issue is “sharply focused and easily documented,” then an oral hearing is unnecessary. Eldridge, supra 424 U.S. at 343, 96 S.Ct. at 907; Mattern v. Matthews, 582 F.2d 248, 256 (3d Cir.1978), certiorari denied sub nom. Califano v. Mattern, 443 U.S. 912, 99 S.Ct. 3101, 61 L.Ed.2d 876 (1979). The district court in this case decided this issue on the authority of Eldridge. Two problems disturb us. First, Eldridge did provide for a full post-deprivation hearing, the Law School here does not. Second, the issue of whether or not the appellant failed to disclose his federal conviction on his law school application is shading very close to the issue of the applicant’s credibility and veracity. And where credibility is in issue, an oral hearing is required. Mathews v. Eldridge, supra, 424 U.S. at 343-44, 96 S.Ct. at 906-907, citing Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). Nevertheless, because our review at this stage is limited, because the district court could reasonably characterize the issue so as to make an oral hearing unnecessary, because the reconsideration by the Law School was colorably an academic dismissal, and because denial of an injunction merely preserves the status quo in this case, we hold that the district court did not abuse its discretion in deciding that the appellant had received all the process that is due and that a preliminary injunction was not warranted.⁶

III.

Even though the issue of appellant’s likely success on the merits is uncertain, we will also briefly consider the other factors that enter into a determination of whether •to grant or deny a preliminary injunction. All of these factors weigh against granting a preliminary injunction in this case.

Most importantly, a delay in obtaining admission to a graduate school for purposes of pursuing professional studies, as distinguished from interruption or termination of attendance already in progress, is not ordinarily considered irreparable injury warranting injunctive relief. Doe v. New York University, 666 F.2d 761, 773 (2d Cir.1981). The only circumstance the appellant cites as militating in favor of such relief is his age (39 at the time of the hearing before the district court), which we find insufficient to amount to irreparable harm. Id.7

The last two factors — whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant and whether the granting of a preliminary injunction will disserve the public interest — may be considered together. The threatened injury to the appellant — delay in beginning his law school career at the University of Wisconsin — pales before the threatened injury to the Law School and the public interest if an unsuitable candidate is admitted to the Law School. Both the Law School’s and society’s interest in producing honest lawyers is deserving of great protection.

IV.

For all of the above reasons we affirm the decision of the district court denying appellant’s motion for a preliminary injunction.

1 . The parties disagree as to who called whom. Tr. at 8-9.

2 . At the outset, we reject appellee’s contention that this case is moot because the relief requested was admission to the class entering the Law School in September 1981 and that is now impossible. We believe that the appellant’s request for “such other and further relief as the court deems to be appropriate ...” would include enjoining the Law School from interfering with the appellant’s registration in a later class. 28 U.S.C. § 2202 (in an action for declaratory judgment, court may grant any further necessary and proper relief). Crane Co. v. American Standard, Inc., 490 F.2d 332, 340 (2d Cir. 1973).

At oral argument counsel for the appellant notified the Court that the appellant has been accepted by the law school of the University of California at Berkeley and has begun his first year of studies. The appellant maintains that this appeal is not moot even though the appellant no longer desires immediate admission to the University of Wisconsin Law School; the appellant continues to demand a hearing before the Law School concerning the revocation of his admission, and claims that the University of Wisconsin Law School’s continuing denial of a hearing comporting with due process amounts to a constitutional violation warranting immediate injunctive relief. Counsel for the appellant represented that he could not say that appellant would not transfer to the University of Wisconsin if he were admitted to the Law School. Therefore, the case cannot be deemed moot.

3 , It is clear that the appellant can have no property interest under Wisconsin law. Wis. Stat. § 36.05(11) (1979) defines a student as a person who is “registered for study.” For that reason, Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975) (on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education) is inapposite to the case at hand. Further, all of tiie cited cases and cases uncovered in our research that discuss a student’s property interest in his or her education acknowledge a property interest only in continuing the education. Betts v. Board of Education of City of Chicago, 466 F.2d 629, 633 (7th Cir.1972); Hagopian v. Knowlton, 470 F.2d 201, 209 (2d Cir. 1972); Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 (5th Cir.), certiorari denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d (1961) (precise nature of the private inter- ' ests involved is the right to remain at a public institution of higher learning in which the plaintiffs were students in good standing); Zitser v. Walsh, 352 F.Supp. 438, 443 (D.Conn. 1972) (the fact that plaintiff had accepted the National Guard’s offer to attend officer candidate school and had entered into that program created an interest deserving of some measure of due process protection). See Brookins v. Bonneli, 362 F.Supp. 379, 383-84 (E.D.Pa.1973) (“It may well be that a potential student enrollee in a publicly funded educational institution has no constitutional or ‘civil right’ to a ‘due process’ hearing to prove his qualifications and right to admission.”).

4 . While appellant is correct that Jago concerns a liberty interest, the point raised by Justice Blackmun deals specifically with the “mutually explicit understandings” upon which the appellant’s claim is based.

5 . Appellee’s argument based in Wisconsin contract law is irrelevant. The question is not whether the Law School’s offer and the appellant’s acceptance gives rise to an enforceable contract. The appellant at least implicitly concedes that the Law School does have the power to revoke his admission. Nor is the question whether the appellant has clean hands, but whether the Law School is required to give the appellant a hearing before deciding his hands are not clean.

6 . We also reject the appellant’s argument that the Law School’s regulations concerning disclosure are vague. The application itself directs applicants to “state fully” the circumstances of any criminal conviction. Soglin v. Kauffman, 418 F.2d 163, 168 (7th Cir.1969) (challenged rule contained “no clues” which could assist a student in determining if action violated rule prohibiting “misconduct”).

7 . Because the appellant is now attending law school in California, he can no longer assert that the University of Wisconsin Law School is continuing generally to delay his legal education.