Opinion issued December 31, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00867-CV ——————————— IVAN VILLARREAL, Appellant V. TEXAS SOUTHERN UNIVERSITY; DANNYE HOLLEY, IN HIS INDIVIDUAL & OFFICIAL CAPACITIES; EDWARD MALDONADO (A/K/A SPEARIT), IN HIS INDIVIDUAL & OFFICIAL CAPACITIES; GABRIEL AITSEBAOMO, IN HIS INDIVIDUAL & OFFICIAL CAPACITIES, Appellees
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2016-64945
OPINION
Former law student Ivan Villarreal appeals from a trial court order
dismissing with prejudice his claims against Texas Southern University and three members of its faculty. Villarreal argues that the trial court improperly granted a
plea to the jurisdiction on his constitutional claims, his breach-of-contract claim,
and his claims directed at the university employees in their official and personal
capacities. We conclude that under governing precedents, Villarreal has alleged
viable constitutional claims, and we reverse the trial court’s judgment in part and
remand for further proceedings.
Background
As required by the standard of review applicable to this appeal, we construe
the pleadings liberally and accept factual allegations as true unless proved
otherwise by undisputed evidence.1
Appellant Ivan Villarreal enrolled in the Thurgood Marshall School of Law
at Texas Southern University as a first-year student in August 2014. The university
divided all first-year students into four sections. Villarreal was in Section 4. All but
one of the first-year classes were graded on a curve. For those classes subject to a
curve, a student’s final grade was made up of two parts. The first part was an exam
score that was scaled against all other first-year student scores in all sections; the
second was a score assigned by the professor that was scaled against other student
scores in the same section. Each of those scores accounted for half of each
1 See Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004).
2 student’s grade. The students’ total scores in each class were once again curved to
produce final grades. Using a typical system of grade-point averages, the university
had a policy of dismissing any student who failed to maintain a GPA of 2.0 (a C
average) after the completion of the first two semesters.
The university had another policy prohibiting professors from leading
classroom teaching sessions during the reading period between the last day of
classes and final exams. Professor Maldonado, the criminal-law professor for
Section 2 who uses the “professional name” of “SpearIt,” proposed review sessions
during the reading period. But Assistant Dean Gabriel Aitsebaomo instructed
Professor Maldonado not to conduct classroom-style teaching, on or off campus,
during the reading period.
Professor Maldonado held review sessions anyway. The times and locations
were disseminated by email. At the review sessions, Professor Maldonado showed
students at least thirteen questions that were materially identical to questions that
later appeared on the sixty-question uniform criminal-law exam that was used for
all four sections of students. Some students left the review sessions with copies of
the previewed questions.
Shortly after first-semester grades were posted, rumors circulated among the
first-year class that “a handful of students,” predominantly from Professor
Maldonado’s Section 2 criminal-law class, had received pre-exam access to a
3 number of exam questions during off-campus study sessions. By early February
2015, university administrators were aware of Professor Maldonado’s unauthorized
review sessions. Dean Dannye Holley identified thirteen exam questions that were
accessed by an undetermined number of students before the exam and
commissioned a statistical analyst to determine the effect of Professor
Maldonado’s review sessions. The statistician sought clarification that the
university administrators were “quite sure” that the thirteen identified questions
were the “only items that might have been compromised,” as he planned to “use
the non-compromised items as the ‘control’” for his analysis. Dean Aitsebaomo
responded: “There is a likelihood that the other items may potentially be
compromised but the items you have are the ones we were provided evidential
proof of.” The statistician was instructed to assume that only thirteen questions
were compromised and that Section 2 was the only section that received prior
access to the questions.
In early March, Dean Holley informed the entire first-year class by email
that the matter had been investigated and the exam results had been submitted to a
“national expert,” whose “key finding” was:
Most importantly, the overall mean difference between the alleged compromised items(13)[C] and the Non-compromised items(4)[NC] in Fall 2013 students was to be no different from the one observed in 2014. Further a comparison of the NC TO C item set performance difference between sections again showed no significant difference
4 between sections. This finding confirms that the differences between sections are most likely random occurrences.
Dean Holley thus stated:
Hence our expert concluded no section received an advantage that made a difference in the performance between sections. The section which performed better on the thirteen items also performed better on the remaining 47, and the section which performed worst on the thirteen items also performed worst on the remaining 47. We must conclude therefore that even if the C items were previewed to a section, they did not impact the exam outcomes for those students, or the students in other sections[.]
The university advised students to file individual petitions with the
Academic Standards Committee to review their individual exam scores by
March 15, 2015, if they wished to preserve challenges to their grades. Villarreal
relied on this email’s conclusion that the review sessions had no effect on student
scores in deciding not to challenge the C+ grade he received in criminal law.
Still concerned about the “optics” of the scenario, the university
implemented a “class-wide remedy.” The exam was re-scored without the thirteen
compromised questions. The university then allowed students the option of
accepting the new score if it was higher than the original score. The university
claimed that this remedy did not result in any student’s final letter grade being
reduced, but in a later email to the entire first-year class, the class president stated
that “at least one student’s grade was lowered.”
5 At the end of the second semester, the law school’s registrar emailed
Villarreal and informed him that he was being dismissed from the law school. His
GPA was 1.98, below the minimum 2.0 GPA. Villarreal filed three petitions with
the Academic Standards Committee, requesting review of his grades. He met with
the committee, Dean Aitsebaomo, and Dean Holley. All stated that Villarreal
missed the opportunity to challenge his criminal-law grade, with the committee
noting that the university already “addressed administratively the issue of the
alleged cheating in Criminal Law.” Villarreal was then dismissed from the law
school.
Villarreal sued the university, Dean Holley, Professor Maldonado, and Dean
Aitsebaomo. He alleged that his substantive and procedural “due course of law”
rights under the Texas Constitution were violated in multiple ways: by the
unauthorized review sessions; by the university’s failure to provide “suitable and
appropriate remediation of the gross violation of his rights” with respect to the
criminal-law exam and the determination of his cumulative GPA; by the
university’s actions misrepresenting the statistician’s conclusions, withholding his
full report, and “covering up the affair”; and by his dismissal from law school. He
also alleged breach of contract. Villarreal’s petition specifically stated it was
“based solely on claims arising under Texas law” and that he “expressly disavows
any federal claims.”
6 While discovery was ongoing, the appellees filed a plea to the jurisdiction
based on sovereign immunity and supported by evidence challenging some of
Villareal’s factual allegations. Villarreal filed a response, asking the trial court to
deny the plea or, in the alternative, refrain from ruling until sufficient discovery
could be conducted. After a hearing, the trial court granted the jurisdictional plea
and dismissed Villarreal’s claims with prejudice. Villarreal then filed a motion for
a new trial that the trial court denied.
Villarreal appeals.
Analysis
Villarreal contends that the trial court erred by dismissing his case. In their
jurisdictional plea, the appellees argued that they were immune from suit.
Sovereign immunity protects the State and its employees from suit and will defeat
a trial court’s subject-matter jurisdiction unless the plaintiff establishes the State’s
consent to suit or pleads a viable constitutional claim.2 Subject-matter jurisdiction
implicates questions of law that this court reviews de novo.3
2 Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). 3 Id.
7 A plea to the jurisdiction may be supported by evidence challenging the
existence of jurisdictional facts necessary to support a claim.4 A trial court reviews
the relevant evidence and determines whether there is a dispute regarding a
jurisdictional fact.5 When such a fact question exists, a trial court should not grant
the plea, and when none exists, a trial court may rule on the jurisdictional issue as a
matter of law.6 As with a traditional motion for summary judgment, a party
asserting a plea to the jurisdiction must conclusively negate a jurisdictional fact
before the burden shifts to the nonmovant to present evidence raising a question of
fact.7 If a jurisdictional deficiency can be cured by allowing the nonmovant to
amend his pleadings, he should be afforded that opportunity.8
I. Due-course-of-law claims
Villarreal contends that the trial court improperly granted the university’s
plea to the jurisdiction because he stated viable due-course-of-law claims that
defeated the appellees’ claim to sovereign immunity. Section 19 of the Texas Bill
of Rights provides: “No citizen of this State shall be deprived of life, liberty, 4 See, e.g., Miranda, 133 S.W.3d at 227. 5 Id. at 227–28. 6 Id. 7 Id.; Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). 8 Id. at 226–27.
8 property, privileges or immunities, or in any manner disfranchised, except by the
due course of law of the land.”9 The Supreme Court of Texas has looked to federal
authorities applying the Fourteenth Amendment as persuasive authority when
interpreting the analogous due-course-of-law clause in the Texas Constitution.10
This court must analyze Villarreal’s due-course-of-law claims and determine
whether the trial court properly concluded that some element of the claims had
been shown conclusively to be lacking.11
A. Procedural due-course-of-law claims
As a threshold issue for any procedural due-course-of-law claim, the
claimant must allege that the state deprived him of a constitutionally protected
interest.12 Whether such a protected interest exists is a question of law this court
reviews de novo.13 The university contends that Villarreal has failed to satisfy this
9 TEX. CONST. art. I, § 19. 10 See, e.g., Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (“in matters of procedural due process, we have traditionally followed contemporary federal due process interpretations of procedural due process issues”); see also Alcorn v. Vaksman, 877 S.W.2d 390, 396 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (en banc) (“[I]f a federal due process violation was proved, the evidence will prove a state violation, as well.”). 11 See Miranda, 133 S.W.3d at 228. 12 See Than, 901 S.W.2d at 929.
13 See id. at 929–31. 9 element and the trial court therefore appropriately granted its plea to the
jurisdiction. We disagree.
Villarreal alleged generally that the university deprived him of the liberty
interest students have in “continuing graduate education.” In University of Texas
Medical School at Houston v. Than,14 the Supreme Court of Texas has held that a
graduate student dismissed for academic dishonesty held a “constitutionally
protected liberty interest in his graduate education that must be afforded procedural
due process.”15 And because Villarreal alleges that the appellees’ handling of the
exam controversy resulted in his criminal-law grade being depressed and
ultimately caused his year-end GPA to dip just below the 2.0 cutoff to remain
enrolled, and that he faces serious damage to his reputation and the loss of his
chosen profession as a lawyer, his allegations sufficiently implicate the liberty
interest in a graduate education as recognized in Than and precedents of this court.
The appellees contend that Villarreal’s pleadings do not sufficiently allege
that he was deprived of his liberty interest in continuing a graduate education
without due course of law. A “flexible standard” that focuses on the “practical
14 901 S.W.2d 926 (Tex. 1995).
15 Id. at 930; see also Alcorn, 877 S.W.2d at 396.
10 requirements of the circumstances” applies to determine what process was due.16
Considerations include the private interest affected by official action; the risk that
the procedures used will result in an erroneous deprivation of that interest; “the
probable value, if any, of additional or substitute procedural safeguards”; and “the
government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.”17
Villarreal claims that he was denied due process when the university acted in
bad faith by misleading students about the effect of Professor Maldonado’s review
sessions on criminal-law exam scores. After the university informed Villarreal of
its decision to dismiss him, he attempted to challenge his criminal-law grade. The
university told him he missed his opportunity to challenge the grade from the
previous fall semester, noting that it already “addressed administratively the issue
of the alleged cheating in Criminal Law.” Villarreal alleges that he did not
challenge his grade earlier because he relied on Dean Holley’s email sent to the
entire first-year class that stated “our expert concluded no section received an
advantage that made a difference in the performance between sections.” Villarreal
contends that the email was misleading because it quoted a portion of the
16 Than, 901 S.W.2d at 930. 17 Id.
11 statistician’s report concluding that any “differences between sections are most
likely random occurrences,” but it left out other portions of the report that
suggested otherwise, such as the conclusions that there was a “statistically
significant difference” between section scores and that it was “unclear from the
data available whether this difference was due to the [compromised] item set being
inherently easier or the fact that student’s received pre-testing information on them
which would have enhanced their performance.”
This court previously held that when a graduate student’s dismissal results
from a university’s bad faith, that student’s procedural due-course-of-law rights are
violated. In Alcorn v. Vaksman, a doctoral candidate in history was dismissed for
nominally academic reasons.18 On appeal from a judgment in the student’s favor
after a bench trial, the university relied upon the U.S. Supreme Court’s decision in
Board of Curators of University of Missouri v. Horowitz19 to argue that its
academic judgments were due “great respect” from the court.20 This court agreed
with that principle21 but noted that the rule “assumes, of course, that the academic
18 877 S.W.2d at 393–95. 19 435 U.S. 78, 98 S. Ct. 948 (1978). 20 Alcorn, 877 S.W.2d at 397. 21 See id. (citing Clements v. Cty. of Nassau, 835 F.2d 1000, 1005 (2nd Cir. 1987)).
12 decision was made in good faith,” because if it was made in bad faith, the
university was “not entitled to the deferential standard of review used in cases of
good faith academic dismissals.”22 After reviewing the trial court’s findings, this
court concluded that there was sufficient evidence that the student’s dismissal was
not due to academic deficiencies, but instead was a result of the university’s “bad
faith or ill will unrelated to performance.”23
In this case, Villarreal contends that the university engaged in a cover-up by
tailoring its investigation to reach a specific conclusion. According to Villarreal,
the university did this by refusing to investigate the number of students who
accessed the review-session questions, by refusing to ascertain the actual number
of questions that were disclosed to students in advance of the exam, by providing
incomplete information to the statistician who analyzed the review sessions’ effect
on student scores, and finally by revealing to students only selected quotes from
the statistician’s report in an attempt to mislead them to conclude that the review
sessions had no effect on their grades.
The university, relying on declarations of its employees, contends that its
decisions to investigate the allegations, to hire an expert to evaluate the exam, and
to present its findings to the first-year class are undisputed evidence that
22 Id. (citing Ikpeazu v. Univ. of Neb., 775 F.2d 250, 253 (8th Cir. 1985)). 23 Id. at 400 (quoting Ikpeazu, 775 F.2d at 253).
13 conclusively demonstrates that it did not act in bad faith. We disagree. “Bad faith,
like motive and other such ultimate facts constituting state of mind, must, of
necessity, usually be established as an inference flowing from words, acts and
conduct proved.”24 Although “the nature of the words, acts and conduct proved
might be such as to authorize and justify a court in taking a case from the jury and
in drawing the ultimate fact inference as a matter of law . . . that can rarely be
so.”25 The retention of a statistician and communications with the first-year class
are not conclusive proof that the university did not act in bad faith.26
Applying our court’s precedents, we conclude that Villareal adequately
alleged a procedural due-course-of-law claim based on his allegation of the
university’s bad-faith mismanagement of an exam-grading controversy, which
allegedly caused him to miss the GPA cut-off by two one-hundredths of a grade
point and thereby jeopardized his reputation and intended career path.27
24 Kone v. Sec. Fin. Co., 313 S.W.2d 281, 284 (Tex. 1958); see also Alcorn, 877 S.W.2d at 400. 25 Kone, 313 S.W.2d at 284; see also Alcorn, 877 S.W.2d at 400 (noting that where bad faith, a state of mind, is the critical issue and strong evidence exists to support the plaintiff’s case, summary judgment is generally inappropriate). 26 See Kone, 313 S.W.2d at 284. 27 See also Alanis v. Univ. of Tex. Health Sci. Ctr., 843 S.W.2d 779, 784 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (“If the dismissal was based upon academic grounds, the school’s decision is not to be disturbed unless it 14 B. Substantive due-course-of-law claims
Villarreal also argues that the trial court improperly granted the plea to the
jurisdiction on his substantive due-course-of-law claim. A court reviewing a
student’s challenge to his dismissal from a publicly funded university may not
override the faculty’s professional judgment with respect to an academic dismissal
unless that judgment reflects such “a substantial departure from accepted academic
norms as to conclusively demonstrate that the person or committee responsible did
not actually exercise professional judgment.”28
Even if we assume, as suggested by the appellees, that Villarreal’s dismissal
was the result of a purely academic decision, to justify deference to the decision
was motivated by bad faith or ill will unrelated to academic performance, or was based on arbitrary and capricious factors not reasonably related to academic criteria.”). 28 Alanis, 843 S.W.2d at 789 (quoting Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct. 507, 513 (1985)). Although Ewing made a point of characterizing the case as one involving an academic judgment, it said nothing about how and if the standard changes in disciplinary cases, see 474 U.S. at 225, 106 S. Ct. at 513, despite the clear difference the distinction has in procedural due-process cases. Compare Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 738 (1975) (stating procedural due process requires students dismissed for disciplinary reasons be afforded “some kind of notice” and “some kind of hearing”), with Horowitz, 435 U.S. at 85–86, 98 S. Ct. at 953 (noting that procedural due-process requirements for an academic decision are “far less stringent,” do not include a hearing, and may be satisfied by an informal process culminating in a “careful and deliberate” academic assessment).
15 the evidence submitted in support of the plea to the jurisdiction must conclusively
demonstrate the exercise of professional judgment.29
Read liberally, Villarreal’s pleadings allege that the “class-wide remedy” for
irregularities in the criminal-law exam was arbitrary, implemented in bad faith, and
negatively affected his grades. Aside from Dean Holley’s declaration stating that
the remedy “fit the facts,” nothing in the record explains why the university
imposed the remedy that it did.30 Accordingly, we conclude that the appellees did
not conclusively demonstrate that the decision to implement the “class-wide
remedy” was an exercise of professional judgment entitled to judicial deference in
the context of a constitutional challenge.31 We therefore sustain Villarreal’s issue
challenging the dismissal of his substantive due-course-of-law claim.
29 See Ewing, 474 U.S. at 225, 106 S. Ct. at 513; see also Miranda, 133 S.W.3d at 228. 30 Although the university contends that no student’s grade was lowered, that claim has been factually disputed to the extent the record includes an email sent by the class president in which he “confirmed that at least one student’s grade was lowered.” 31 See Alanis, 843 S.W.2d at 789 (“to have a cause of action for substantive due process violations,” a dismissed graduate student must show that a university official’s actions “were arbitrary and capricious; that is, that there was no rational basis for the University’s decision, or that the decision to dismiss was motivated by bad faith or ill will unrelated to his academic performance” (citing Ewing, 474 U.S. at 220–26, 106 S. Ct. at 510–14)).
16 II. Breach-of-contract claim
Villarreal also challenges the dismissal of his breach-of-contract claim. He
did not allege a contractual relationship with any party other than the university.
By “entering into a contract, the State does not waive its immunity from suit.” 32 It
is “the Legislature’s sole province to waive or abrogate the State’s immunity from
suit.”33 Therefore, even to the extent Villarreal had a contract with the university,
his failure to identify any legislative authority that would overcome sovereign
immunity from his breach-of-contract claim confirms that the trial court
appropriately dismissed the claim. Accordingly, we overrule Villarreal’s issue
regarding his breach-of-contract claim.
III. Official- and personal-capacity claims
Finally, Villarreal argues that the trial court improperly dismissed his claims
against Dean Holley, Dean Aitsebaomo, and Professor Maldonado in their official
and personal capacities. Every cause of action Villarreal raised against the
individual defendants alleged that they violated his rights under the due-course-of-
law clause. In light of our conclusion that Villarreal alleged a viable constitutional
claim, we sustain his issue challenging the erroneous dismissal of his official-
32 IT-Davy, 74 S.W.3d at 856. 33 Id.
17 capacity claims.34 Villareal’s petition did not specifically allege any basis to hold
the individuals liable in their personal capacities for constitutional violations, and
his appellate brief sheds no additional light on the matter. We therefore overrule
the challenge to the dismissal of constitutional claims against the individual
defendants in their personal capacities.35 Because Villarreal failed to state a viable
personal-capacity claim against any of the named defendants, we conclude that the
trial court appropriately dismissed his personal-capacity claims.
Conclusion
We reverse the judgment of the trial court to the extent it dismissed
Villareal’s constitutional claims against all appellees. We affirm the judgment to
the extent it dismissed claims alleging the university’s breach of contract or
personal liability of the individual defendants for constitutional violations. We
remand the case to the trial court for further proceedings.
34 See, e.g., Hall v. McRaven, 508 S.W.3d 232, 238–39 (Tex. 2017); City of El Paso v. Heinrich, 284 S.W.3d 366, 372–73 (Tex. 2009). 35 See, e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143, 147–49 (Tex. 1995) (no implied cause of action for damages against government employees for violations of the Texas Constitution).
Panel consists of Justices Jennings, Higley, and Massengale.
Justice Jennings concurring in the judgment only.
Justice Massengale, concurring in the judgment.