Kamilah Todd v. Southern Methodist University and Greta A. Davis, an Individual

• Court: Court of Appeals of Texas
• Decided: November 14, 2022
• Docket: 05-21-00702-CV
• Status: Published

Opinion

REVERSE and REMAND in part and RENDER; Opinion Filed November 14, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00702-CV

KAMILAH TODD, Appellant V. SOUTHERN METHODIST UNIVERSITY AND GRETA A. DAVIS, AN INDIVIDUAL, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-11705

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Schenck Kamilah Todd appeals the trial court’s order granting appellees Southern

Methodist University (“SMU”) and Greta A. Davis’s plea to the jurisdiction. In two

issues, Todd argues the trial court erred by granting the plea and by denying her

motion for new trial. We reverse the trial court’s order to dismiss and remand this

case to the trial court for proceedings consistent with this opinion. Because the

dispositive issues in this case are settled in law, we issue this memorandum opinion.

See TEX. R. APP. P. 47.4. BACKGROUND

After receiving an undergraduate degree at SMU in 2015, Todd applied and

was accepted into SMU’s Dispute Resolution and Counseling Program (“Program”).

Todd successfully completed several courses in the Program, but in the spring term

of 2019, Todd was notified that she had failed the course titled Advanced Clinical

Methods (“ACM”).1 Todd successfully pursued an appeal of the ACM course grade

through multiple internal levels of review.

At or about the same time she pursued an appeal of her course grade, Todd

pursued a separate appeal of a remediation plan; the course syllabus required a

remediation plan whenever a student’s performance in the Clinical Progress

Assessment (“CPA”) component of the ACM course was assessed as deficient, as

Todd’s performance was in the opinion of her instructor. Todd pursued her

remediation appeal to a hearing before an appeal committee, who, on January 15,

2020, communicated their ruling that “the plan should not stand.” On its face, the

ruling did not specify what, if any, actions would be necessary or appropriate by way

of further instruction or remediation in order for Todd to advance academically.

While her remediation plan appeal was pending, Todd was not permitted to enroll in

the program’s Practicum course, which involved “meeting with real clients in the

1 The course description in the syllabus attached to Todd’s petition describes the ACM course as having “an emphasis on practicing counseling skills” and that “[e]valuation will be based on several factors, including strengths and deficits in intrapersonal and interpersonal counseling skills as demonstrated in role- play and/or written assignments.” –2– training clinic,” as opposed to the ACM course, which utilized students as the clients

in classroom exercises and projects.

On August 21, 2020, Todd filed suit against SMU and Davis, who was the

Chair of SMU’s Department of Dispute and Counseling at all times relevant to

Todd’s suit. In her petition, Todd asserted claims for, inter alia, declaratory relief

and breach of contract. In addition to compensatory and punitive damages for the

financial loss and physical and emotional distress appellees’ actions allegedly caused

her, Todd requested the trial court make several declarations, including that Todd be

permitted to enroll in the remaining courses to complete her degree in the Program.

After filing a joint answer, in November of 2020, SMU and Davis jointly filed

a plea to the jurisdiction, in which they argued Todd’s claims were not ripe for

judicial review because she still has the opportunity to complete the Program upon

successful completion of a remediation plan. The plea also argued the trial court

should dismiss Todd’s claims because:

[A]djudicating Todd’s claims would require this Court to evaluate and override the Counseling Department’s decision that Todd lacks the clinical competency to proceed to Practicum and counsel real clients. Like an individual professor’s decision as to the proper grade for a student, whether Todd possesses the skills necessary for Practicum requires the expert evaluation of her professors—not the courts.

Todd filed a response to the plea and objections to Davis’s declaration that was

attached to the plea.

In February of 2021, the trial court conducted a hearing on the plea and Todd’s

objections to Davis’s declaration. The trial court later signed an order granting the –3– plea to the jurisdiction and dismissing with prejudice Todd’s claims. Todd filed a

motion seeking a new trial on the basis of newly discovered evidence or alternatively

modification of the order to dismissal without prejudice.

SMU and Davis responded to Todd’s motion and objected to the affidavit

supporting the motion. In May of 2021, the trial court conducted a hearing on Todd’s

motion and later signed an order modifying the order granting the plea to the

jurisdiction such that Todd’s claims were “dismissed without prejudice for lack of

subject matter jurisdiction.” Todd filed a motion for rehearing of her motion for new

trial. SMU and Davis responded, and the trial court conducted a hearing and later

signed an order denying Todd’s motion for rehearing. Todd filed a notice of appeal

from the trial court’s order granting the plea to the jurisdiction as modified in May.

DISCUSSION

Generally, a plea to the jurisdiction may challenge the sufficiency of the

claimant’s pleadings or the existence of necessary jurisdictional facts. State ex rel

City of Dallas v. Dallas Pets Alive, 566 S.W.3d 914, 917 (Tex. App.—Dallas 2018,

pet. denied). When the plea challenges the claimant’s pleadings, we determine

whether the claimant has pleaded facts that affirmatively demonstrate the trial

court’s jurisdiction, construing the pleadings liberally and in favor of the claimant.

Id. When the plea appropriately challenges jurisdictional facts, we consider

evidence submitted by the parties. Id. In performing our review, we do not look to

the merits of the claimant’s case, but consider only the pleadings and the evidence

–4– pertinent to the jurisdictional inquiry. Id. If the jurisdictional evidence creates a fact

question, then the trial court cannot grant the plea to the jurisdiction, and the issue

must be resolved by the fact finder. Id. This standard mirrors our review of

summary judgments. Id.

As previously noted, here, the plea to the jurisdiction relied on two different

grounds in order to seek dismissal: (1) ripeness, or Todd’s failure to exhaust all of

the remedies available under SMU’s internal procedures; and (2) deference to the

appellees’ exercise of professional judgment in evaluating Todd’s academic

performance.2 Likewise, Todd’s arguments before us raise both process contentions

and a challenge to the substantive result urged by SMU and Davis in their answer

and plea to the jurisdiction. We will address the former first.

2 The trial court signed an order granting the plea without specifying which grounds it relied on. The trial court later signed an amended order granting the plea but dismissing the case without prejudice, instead of with prejudice. Todd urges that the trial court’s decision to modify the order “shows that the trial court rejected [the academic deference ground] and is ruling on the ripeness [ground].” SMU and Davis respond that the trial court “would have been correct in granting either of the grounds supporting the dismissal,” but they do not allege what implied holding, if any, we may infer from the trial court’s decision to modify the order from “with prejudice” to “without prejudice.” Both grounds asserted for dismissal of Todd’s claims implicate the trial court’s subject matter jurisdiction. See Williams v. Smith, No. 05-19-01251-CV, 2020 WL 7332674, at *2 (Tex. App.—Dallas Dec. 14, 2020, pet. denied) (mem. op.) (“judicial non-intervention doctrine provides that—with limited exceptions—a trial court lacks subject matter jurisdiction over claims regarding the internal management of a voluntary association”); Holmes v. S. Methodist Univ., No. 05-15-01001-CV, 2016 WL 3085718, at *3 (Tex. App.—Dallas May 31, 2016, no pet.) (mem. op.) (“Ripeness ‘is a threshold issue that implicates subject matter jurisdiction’”). And, we must review our own jurisdiction regardless of whether the parties raise the issue. See Bank of New York Mellon v. Guzman, 390 S.W.3d 593, 596 (Tex. App.—Dallas 2012, no pet.) (“We are required to review sua sponte issues affecting jurisdiction.”). Accordingly, irrespective of whether the trial court granted the plea on either or both grounds, we may review both. –5– I. Ripeness and the Right to Process

Ripeness is a threshold issue that implicates subject matter jurisdiction. See

Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011). In evaluating ripeness, we

consider whether the facts are sufficiently developed so that an injury has occurred

or is likely to occur, rather than being contingent or remote. See id. Thus, the

ripeness analysis focuses on whether the case involves uncertain or contingent future

events that may or may not occur as anticipated or may not occur at all. See

Patterson v. Planned Parenthood of Houston & Se. Tex., 971 S.W.2d 439, 442 (Tex.

1998). In a previous opinion involving SMU and a graduate student who sued the

university after she had twice failed a required master’s program comprehensive

exam, this Court affirmed an order of dismissal on ripeness, concluding that, because

SMU presented evidence, and the plaintiff conceded, that she had refused an offer

to retake the exam and that SMU had not dismissed her from the program or made

any final decision on the award of a degree, “she cannot show her claim is ripe.” See

Holmes v. S. Methodist Univ., No. 05-15-01001-CV, 2016 WL 3085718, at *3 (Tex.

App.—Dallas May 31, 2016, no pet.) (mem. op.).

Under the ripeness doctrine, we consider whether, at the time a lawsuit

is filed, the facts are sufficiently developed so that an injury has occurred or is likely

to occur, rather than being contingent or remote. See Waco Indep. Sch. Dist. v.

Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000) (emphasis in original). Prior to Todd’s

filing suit, the emailed deliberation result of the appeal committee was that the

–6– remediation plan appealed by Todd “should not stand” and that the committee felt

its only two choices were “to approve or reject the plan.” Todd’s suit alleged that

she had “successfully demonstrated [to appeal committee] that remediation was

wholly unwarranted” and that SMU and Davis had acted in bad faith and in breach

of the contract with Todd to prevent her from completing the Program. In their

answer to Todd’s claims, SMU and Davis urged her claims were not ripe for

adjudication and that she could not recover for breach of contract because she had

not performed all of her obligations under her contract with SMU. Their plea to the

jurisdiction further elaborated that Todd’s claims are not yet ripe and that she had

failed to exhaust her available remedies because she “can still enroll in Practicum

once she completes the required remediation.” Their plea attached Davis’s

declaration and several exhibits thereto, including a letter from the Provost, “the

ultimate arbiter of Todd’s grade appeal,” in which he emphasized that her failing

grade on the CPA component of her course required a remediation plan. This ground

thus challenged the jurisdictional facts. See Dallas Pets Alive, 566 S.W.3d at 917.

Todd argues the record contains, at a minimum, some ambiguity as to whether

the appeal committee determined she should not complete the specific remediation

plan she appealed or that she need not complete any remediation plan. She included

as an exhibit SMU’s academic policies that set forth the process by which Todd

appealed the remediation plan requirement. The procedures provide that when a

student’s performance is identified as requiring remediation, a student may choose

–7– to follow a remediation action, exit from the program, or “appeal in writing to the

Program Director” who then mediates a decision between the instructor and student

regarding the evaluation and “remedial report specifications.” “If no resolution

results, a committee . . . will either waive the remediation stipulations or enforce the

remediation stipulations.” In her second issue, Todd urges that the trial court erred

in denying her motion for new trial, to which Todd attached evidence she alleged to

be newly discovered after the trial court signed its order granting the plea to the

jurisdiction. That evidence was an affidavit from an individual named Dr. Collen R.

Logan, who stated she was a former member of SMU’s faculty and had been one of

the members of the remediation appeal committee. According to that affidavit,

Logan understood the appeal committee’s “unanimous decision” to “overturn[] the

decision to “force [Todd] to remediate” and that “Todd should be allowed to proceed

in the program without the proposed remediation.”

Process rights are important and, whether they are assured potentially by

contract or otherwise, should be respected and enforced. See, e.g., Interstate

Contracting Corp. v. City of Dallas, Tex., 407 F.3d 708, 728 (5th Cir. 2005)

(applying Texas law). Although SMU and Davis point us to our previous opinion

in Holmes, in that case, there was no dispute about Holmes’s rights under SMU’s

process. See Holmes, 2016 WL 3085718, at *3. We conclude the record in this case

–8– as it stood at the time suit was filed3 presents a fact question over whether the

appellees have failed to comply with SMU’s own internal procedures and thus the

trial court erred if it found it lacked jurisdiction over Todd’s claims due to ripeness.

However, our analysis does not end there and instead we next address the

plea’s second ground of academic deference as it relates to the further relief Todd

requests.

II. Academic Deference and the Jurisdiction of Courts to Review Substantive Academic Judgments

As noted, the parties’ respective positions go beyond Todd’s claims of the

right to be heard in accordance with SMU’s written process. As part of her first

issue challenging the trial court’s order granting the plea to the jurisdiction, Todd

argues the trial court had no obligation to defer to SMU and Davis. She urges that

SMU and Davis ignored the ruling of the appeal committee and thus failed to

exercise sound professional judgment. Todd’s reasoning is that SMU and Davis

have both failed to follow SMU’s internal rules and procedures and, as a result, their

professional judgment warrants no deference. Meanwhile, in their answer and plea

to the jurisdiction, SMU and Davis contend that SMU has finally determined that

Todd required further remediation. And, before us, SMU and Davis urge that Todd

has misinterpreted the appeal committee’s decision, that instead of concluding she

3 As noted, SMU and Davis urged in their answer that the University may make a final determination of Todd’s need for further remediation. That assertion may be correct, but it does not find conclusive support in the record of its review process prior to suit. –9– need not be required to complete any remediation plan, the committee instead

concluded only that the particular remediation plan Todd appealed from “should not

stand,” and therefore, deference to their final professional judgment is required,

separate and apart from her asserted right to the promised internal review. Because

the plea’s ground asserting academic deference challenges the pleadings, we must

determine whether Todd has pleaded facts that affirmatively demonstrate the trial

court’s jurisdiction, construing the pleadings liberally and in favor of her. See Dallas

Pets Alive, 566 S.W.3d at 917.

Judges and juries are not generally equipped to second-guess academic

judgment. Accordingly, when courts are asked to review the substance of a

genuinely academic decision, they should show great respect for the faculty’s

professional judgment. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225

(1985). They generally may not override that judgment unless it is such a substantial

departure from accepted academic norms as to demonstrate that the person or

committee responsible did not actually exercise professional judgment. See id. This

doctrine of deference to academic decisions reflects the courts’ responsibility to

safeguard the academic freedom of state and local educational institutions, “a special

concern of the First Amendment,” and assure those who teach may do so free of the

chilling effect of an ever-present risk of being sued. See id. (quoting Keyishian v.

Bd. of Regents, 385 U.S. 589, 603 (1967)). “Academic freedom thrives not only on

the independent and uninhibited exchange of ideas among teachers and students, but

–10– also, and somewhat inconsistently, on autonomous decisionmaking by the academy

itself.” See id. at 603 n.12 (citations omitted).

Indeed, the related judicial nonintervention doctrine has been applied in other

instances where courts have been asked to adjudicate what amount to disagreements

regarding the internal management decisions of private associations. See, e.g.,

Williams, 2020 WL 7332674, at *1 (non-profit corporation with voluntary

membership permitting member right to graze cattle on land on which corporation

owns cattle-grazing lease); Collins v. Kappa Sigma Fraternity, No. 02-14-00294-

CV, 2017 WL 218286, at *1 (Tex. App.—Fort Worth Jan. 19, 2017, pet. denied)

(mem. op.) (fraternity); Haedge v. Cent. Tex. Cattlemen’s Assoc., No. 07-15-00368-

CV, 2016 WL 5929596, at *4 (Tex. App.—Amarillo Oct. 11, 2016, pet. denied)

(mem. op.) (non-profit corporation with voluntary membership permitting member

right to graze cattle on land on which corporation owns cattle-grazing lease); Dallas

Cty. Med. Soc. v. Brache, 68 S.W.3d 31, 42 (Tex. App.—Dallas 2001, pet. denied)

(private, nonprofit organization of physicians); Tex. Adjutant Gen.’s Dept. v. Amos,

54 S.W.3d 74, 77 (Tex. App.—Austin 2001, pet. denied) (“rely[ing] on the well-

established principle that claims brought by military personnel for injuries arising

from or in the course of activity incident to military service are nonjusticiable” to

dismiss plaintiff’s action regarding proceedings resulting in plaintiff’s discharge

from Texas Air National Guard).

–11– When previously applying the judicial nonintervention doctrine, we have

noted general exceptions to this doctrine: “fraud, illegality, or a threat to the

plaintiff’s valuable property rights or civil rights.” See Williams, 2020 WL 7332674,

at *2. But, as noted previously, in the context of a substantive decision of academic

achievement or preparedness, Texas courts have never overridden such a

determination. Neither, in view of First Amendment concerns, might they, unless

the academic action amounts to such a substantial departure from accepted academic

norms as to demonstrate that the person or committee responsible did not actually

exercise professional judgment. See Ewing, 474 U.S. at 225.

After reviewing the pleadings, we conclude the relief she seeks goes beyond

process concerns and into academic decisions that Todd asks the trial court and this

Court on appeal to engage in. In her petition, Todd sought to obtain several

declarations from the trial court.4 We take particular note of the declarations (2)

4 The complete list of requested declarations is quoted from Todd’s petition below:

1. The required procedures for requiring remediation were not followed under the 2015/2016 guidelines;

2. Under the procedures in effect in 2015/2016 the department chair Defendant Davis did not have the authority to require remediation where the student has been successful on the remediation plan appeal;

3. As of April 2019, Plaintiff’s successful remediation plan appeal resulted in the remediation stipulations being “waived” and no compulsory remediation was thereafter or is now necessary, nor can one be required at this time;

4. The procedure Defendants have followed by changing the remediation rules retroactively and after the fact violates Plaintiff’s contractual rights and is therefore, impermissible;

–12– defining what authority Davis has within SMU’s structure, (3) defining what effect

SMU’s appeal committee decision has on whether SMU may require Davis to

complete a remediation plan, (5) that Todd “has by definition demonstrated her

competency” to proceed to the next academic course, and (7 and 8) that SMU permit

Todd to take additional courses to complete her degree. This requested relief makes

clear what Todd seeks from the trial court—and by her appeal to this Court—is a

determination that she has achieved competence in her area of study sufficient to

proceed with the completion of her degree. And, as the supreme court has recently

advised, “courts are ill equipped to evaluate the academic judgment of professors

and universities.” See Villarreal, 620 S.W.3d at 907.

To be sure, claims that agents of a university have acted in contravention of a

student’s rights protected by the constitution or statute would obviously be subject

5. By passing Advanced Clinical Methods, Plaintiff has by definition demonstrated her competency to proceed to Pre-Practicum;

6. The enrollment hold preventing Plaintiff from enrolling in Pre-Practicum and Practicum is to be immediately lifted;

7. Plaintiff is to be allowed to immediately enroll in Pre-Practicum;

8. Plaintiff be allowed to finish her degree requirements;

9. Depending on how long it takes to resolve this matter, Plaintiff be allowed additional time to complete her degree, with no penalties, administratively, academically or otherwise in any form or fashion;

10. Defendants will be immediately and permanently enjoined from taking any punitive actions against Plaintiff, whether administratively, academically or otherwise in any form or fashion because of, in relation to or in any way arising from, whether directly or indirectly, the filing of this petition or pursuing her right to appeal.

–13– to the trial court’s and this Court’s jurisdiction. See, e.g., Tex. S. Univ. v. Villarreal,

620 S.W.3d 899, 910 (Tex. 2021) (declining to recognize substantive protections for

educational rights under Texas Constitution’s due course of law clause); Ho v. Univ.

of Tex. at Arlington, 984 S.W.2d 672, 685 (Tex. App.—Amarillo 1998, pet. denied)

(considering student’s claims of equal protection violations); cf. Senu-Oke v.

Jackson State Univ., 521 F.Supp.2d 551, 559 (S.D. Miss. 2007) (citing Bd. of

Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 85–86 (1978); Shaboon v.

Duncan, 252 F.3d 722, 731 (5th Cir. 2001)) (“In this regard, the Supreme Court and

Fifth Circuit have made it clear that the process which must attend student

dismissals, whether for academic or disciplinary reasons, is minimal.”). But, Todd’s

petition does not assert any claims that Davis or any other agent of SMU has done

so. We will not create mischief by inserting our judicial review into what is an

academic decision and thus impose the sword of Damocles over every professor’s

head.

We conclude the trial court lacked subject matter jurisdiction over Todd’s

substantive claims. Further, we conclude the record evidence conclusively negated

the existence of jurisdiction such that dismissal of her substantive claims with

prejudice is appropriate. See Rines v. City of Carrollton, No. 05-15-01321-CV, 2018

WL 833367, at *11 (Tex. App.—Dallas Feb. 13, 2018, pet. denied) (mem. op.)

(holding City conclusively negated jurisdiction as to all of appellant’s claims such

–14– that trial court did not err by granting City’s plea to the jurisdiction and dismissing

his claims with prejudice).

Accordingly, we sustain in part Todd’s first issue to the extent the trial court

dismissed her claims as not ripe and overrule her first issue to the extent the trial

court dismissed her claims seeking review of appellee’s academic decisions. In light

of our conclusions and reversal of the trial court’s order, we need not further address

Todd’s second issue as to whether the trial court erred by denying her motion for

new trial. See TEX. R. APP. P. 47.1.

CONCLUSION

We reverse the trial court’s order to dismiss without prejudice, render

judgment denying the plea to the jurisdiction with respect to Todd’s claims that the

appellees have failed to comply with SMU’s own internal procedures, render

judgment modifying the order to deny with prejudice Todd’s claims seeking review

of appellees’ academic decisions, and remand this case to the trial court for

proceedings consistent with this opinion.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

210702F.P05

–15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KAMILAH TODD, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-21-00702-CV V. Trial Court Cause No. DC-20-11705. Opinion delivered by Justice SOUTHERN METHODIST Schenck. Justices Reichek and UNIVERSITY AND GRETA A. Goldstein participating. DAVIS, AN INDIVIDUAL, Appellee

In accordance with this Court’s opinion of this date, we REVERSE the trial court’s order to dismiss without prejudice, RENDER judgment denying the plea to the jurisdiction with respect to Todd’s claims that the appellees have failed to comply with SMU’s own internal procedures, RENDER judgment modifying the order to deny with prejudice Todd’s claims seeking review of appellees’ academic decisions, and REMAND this case to the trial court for proceedings consistent with this opinion.

It is ORDERED that appellant KAMILAH TODD recover her costs of this appeal from appellee SOUTHERN METHODIST UNIVERSITY AND GRETA A. DAVIS, AN INDIVIDUAL.

Judgment entered this 14th day of November 2022.

–16–