University of Texas Medical School at Houston v. Than

834 S.W.2d 425, 1992 WL 133367

Opinions

OPINION

WILSON, Justice.

The sole issue presented for review in this appeal is whether the trial court abused its discretion in granting a temporary injunction that allowed Allan Than, appellee, to complete his medical studies at the University of Texas Medical School at Houston.¹ We hold that the trial court did not abuse its discretion and affirm.

Summary of Facts

Than completed his fourth year of medical school at the University of Texas Medical School at Houston (the medical school) in June of 1992. As part of Than’s medical education, he was required at various times to take national medical board exams, referred to as the NBME. On February 22, 1991, Than took the surgery NBME with other medical students in a test room supervised by proctors. During the exam, two of the proctors suspected that Than was glancing at another student’s answer sheet. On March 12, 1991, the associate dean for student affairs contacted Than and told him that he was suspected of cheating on the NBME surgery exam.

On April 4, 1991, the medical school sent Than a letter advising him that he was charged with academic dishonesty. The letter stated that he would be afforded a hearing, in accordance with The Rules and Regulations of the Board of Regents of the University of Texas System for the Government of the University of Texas System (the rules and regulations). The hearing took place on April 18, 1991. On April 28, 1991, the hearing officer issued her decision that recommended Than be expelled from the medical school. Than appealed the recommendation to appellant David Low, M.D., who is President of University of Texas Health Science Center at Houston. On May 9, 1991, Than received a letter from appellant John Ribble, M.D., Dean of the medical school, that informed Than that he could not participate in any clinical clerkship activities at the medical school unless and until Dr. Low reversed the decision of the hearing officer.

On May 24, 1991, Than filed a lawsuit against appellants, seeking a temporary restraining order, temporary injunction, and permanent injunctive relief. Than claimed violation of due process rights and breach of contract. The case was removed to federal court, where Than obtained temporary restraining orders that allowed him to continue his studies. The record reflects that the case was returned to state court, where Than was granted a temporary restraining order, and the trial court set a date for a hearing on the request for temporary injunction.

After a hearing on November 18, 1991, the trial court concluded that Than proved that he will probably prevail on the merits of his due process claim against appellants and entered a temporary injunction order that provides, in pertinent part:

1. That Defendants treat Plaintiff, with respect to his continued studies and other activities within and in connection with medical school, such as registering for and attending classes, performing clinics and taking examinations, as a student in good standing;

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4. That Defendants respond as they would to any similarly situated student in good standing, to Plaintiff’s request for all letters and other information required by Plaintiff in making his application(s) for residencies. Defendants may, however, apprise any institution to whom such information is sent of the pendency of this litigation by including with such information a letter or statement that is worded as follows: “Please be advised that there is litigation pending at this time between Mr. Allan Than and the University of Texas Medical School concerning Mr. Than’s surgery NBME grade. The outcome of this litigation may or may not affect Mr. Than’s recorded grade for surgery and his standing at the University.” If the University receives any inquiries as a result of such a letter, it shall maintain the confidentiality of its internal hearing and shall not disclose its previous determination that Plaintiff was guilty of academic dishonesty and expelled, and shall limit its response to informing the inquiring institution of the style and cause number of this litigation; ...

The trial court’s order granting the temporary injunction against the medical school was entered on November 26, 1991. This Court is not aware of any future date setting the case for a trial on the merits. Previous settings have been continued by request of the parties.

Relief Requested by the Parties

Appellants now appeal the trial court’s grant of the temporary injunction. In a single point of error, they contend that the district court erred in granting the temporary injunction because Than did not show a probable right of recovery. Than has requested that this Court grant his emergency motion to find the medical school in contempt for its alleged violation of the temporary injunction order and to order that the school issue Than’s Certificate of Professional Education to the University of Virginia Health Science Center, furnish Than with his medical diploma for the purpose of completing the FLEX examination, and order that Than be permitted to participate in commencement proceedings on June 5, 1992.

On June 4, 1992, this Court ordered the medical school to permit Than to participate in graduation proceedings as would a student in good standing, without prejudice to either of the parties as to a final determination on the merits of his trial. University of Texas Medical School at Houston v. Than, 834 S.W.2d 422 (Tex.App.— Houston [1st Dist.], 1992) (order); see Tex. R.App.P. 43(c). Our order did not require the medical school to issue a diploma to Than at graduation.

Temporary Injunction

Standard of Review

1. The trial court

Appellants maintain that the district court erred in granting the temporary injunction because Than has not shown a probable right of recovery. To be entitled to the issuance of a temporary injunction, an applicant must plead a cause of action and show a probable right of recovery and a probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968); Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.—Houston [1st Dist.] 1992, n.w.h.); Miller v. K & M Partnership, 770 S.W.2d 84, 87 (Tex.App.— Houston [1st Dist.] 1989, no writ). Probable injury includes the elements of imminent harm, irreparable injury, and no adequate remedy at law for damages. Surko Enter., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex.App.— Houston [1st Dist.] 1989, no writ).

At the hearing for a temporary injunction, the only question before the trial court is whether the applicant was entitled to an order to preserve the status quo pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Martin v. Linen Sys. for Hosp., Inc., 671 S.W.2d 706, 709 (Tex.App.—Houston [1st Dist.] 1984, no writ). The status quo is defined as the last, actual, peaceable, non-contested status that preceded the controversy. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975).

An order granting a temporary injunction should not adjudicate the issues. Matlock v. Data Processing Sec., Inc., 607 S.W.2d 946, 951 (Tex.App.—Fort Worth 1980), affd, 618 S.W.2d 327 (Tex.1981). Rule 683 of the Texas Rules of Civil Procedure requires the trial court to state the reasons why the court deems it proper to issue the writ to prevent injury to the applicant, including any reasons why the court believes the applicant’s probable rights will be endangered if the writ is not issued. Transport, Co. of Tex. v. Robertson Transp., Inc., 152 Tex. 551, 261 S.W.2d 549, 553 (1953); Moreno v. Baker Tools, Inc., 808 S.W.2d 208, 210 (Tex.App.—Houston [1st Dist.] 1991, orig. proceeding).

2. The reviewing court

The appellate court’s review of the temporary injunction is limited to whether the trial court clearly abused its discretion in granting the order; this Court will not decide the merits of the underlying cause. Davis, 571 S.W.2d at 861-62; Moreno, 808 S.W.2d at 211. The reviewing court may not substitute its judgment for that of the trial court. Henderson, 822 S.W.2d at 773. We must determine whether the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Moreno, 808 S.W.2d at 211. The trial court abuses its discretion when it misapplies the law to established facts or when it concludes the applicant has a probable right of recovery, and the conclusion is not reasonably supported by the evidence. Southwestern Bell Tel. Co., 526 S.W.2d at 528; Eastern Energy, Inc. v. SBY Partnership, 750 S.W.2d 5, 6 (Tex.App.—Houston [1st Dist.] 1988, no writ).

Hearing on the Temporary Injunction

At the hearing on the temporary injunction, the trial court heard testimony from Dr. Ribble, Dr. Low, Dr. McNeese, Than, and Professor Michael A. Olivas, who is Associate Dean for Research at the University of Houston Law Center. Other evidence offered by the parties included the following: the University of Texas Medical School Guidelines; the transcript of the student disciplinary hearing; letters from Dr. Hebert to Dr. Low, from Dr. Reed, associate professor of psychiatry and director of undergraduate education, to Dr. Low, and from Dr. Collura to Dr. Low; Professor Olivas’ resume; pages from the NBME Chief Proctor’s Manual; letter of appeal from Than; the medical school’s rebuttal to the appeal letter; Dr. Low’s letter regarding Than’s appeal; and a copy of the Board of Regents’ rules and regulations.

Trial Court’s Findings

After hearing the testimony of the witnesses and reviewing the evidence presented at the hearing, the trial court made the following findings of fact:

1. Defendants University of Texas Medical School at Houston, Dr. John C. Ribble, M.D., and M. David Low, M.D. (“Defendants”) conducted a disciplinary hearing with Plaintiff that materially deviated from the school’s own minimal guarantees of due process as expressed in the Regents Rules (“Rules”) in the following respects:

a. According to the Rules, Plaintiff should have been permitted the right to cross-examine all witnesses against him. Plaintiff was denied this right through Defendants’ use of information obtained from a person at the NBME concerning a statistical analysis of Plaintiff’s surgery NBME with the test of one or more other students. Such person was not present and available for cross examination at the disciplinary hearing; but the testimony was, instead presented to and considered by the hearing officer in letter form. Both the Hearing Officer’s written findings and the testimony of Dr. McKenzie [sic] indicate that the NBME statistical analysis played a substantial role in the disciplinary action taken against Plaintiff;

b. The Rules require that Plaintiff be given written notice of the witnesses, documents and other evidence to be used against him at the disciplinary hearing. Although Plaintiff was given written notice of some witnesses and documents, he was not apprised that his academic record, specifically his recent performance on a psychiatry examination, would be presented at the hearing. Such evidence was presented, and the written findings of the Hearing Officer shows [sic] that she relied heavily upon this information as an indication of motive in reaching her determination that Plaintiff did, in fact, cheat on his surgery NBME;

c. Additional evidence was considered by the Hearing Officer after the hearing was closed and outside the presence of Plaintiff. Specifically, after closing the hearing, the Hearing Officer visited the classroom where Plaintiff’s surgery NBME was administered to determine what view Plaintiff had of another student’s examination. Plaintiff was told by the Hearing Officer that he could not accompany her. Nonetheless, the Hearing Officer relied heavily upon her personal visit to the room in making her recommendation that disciplinary action be taken against Plaintiff.

2. Defendants also failed to observe their own guidelines concerning the manner in which students áre to be confronted if a proctor has evidence of or suspects cheating by a student during an examination. The women overseeing the surgery NBME had these guidelines available to them at the time of the alleged cheating by Plaintiff, but did not follow them. These guidelines, which attempt to ensure that the possibility of cheating is confronted expeditiously and while the circumstances surrounding the allegations are fresh, appear to exist for the protection of the student, as well as, the school. Plaintiff was deprived of the benefits of these guidelines because he was not advised of the charges against him until nearly three weeks after the examination.

3. Plaintiff, who is presently in his fourth year of medical school and is preparing for graduation and applying for residencies, will suffer immediate, irreparable harm in the pursuit of his medical degree and in fulfilling the requirements necessary to become a licensed physician in his chosen area of specialty if injunc-tive relief is not granted at this time....

Abuse of Discretion

On appeal from the granting of the temporary injunction, the medical school does not challenge the trial court’s findings of fact or the evidence supporting such findings. Nor does the medical school contend in its point of error that the trial court applied an incorrect legal standard in concluding that there was some evidence that Than would probably succeed on the merits of his due process claim. The medical school asserts that the district court erred in granting the temporary injunction because Than has not shown a probable right of recovery.

1. Due process afforded for academic dismissal

Our review of relevant case law concerning expulsion from professional school indicates that courts view disciplinary measures taken against students differently from actions taken against students for academic reasons. See Jaksa v. Regents, 597 F.Supp. 1245, 1249 (E.D.Mich.1984), aff'd, 787 F.2d 590 (6th Cir.1986); Eiland v. Wolf, 764 S.W.2d 827, 833 (Tex.App.— Houston [1st Dist.] 1989, writ denied). If a student is dismissed for academic reasons, a reviewing court will not disturb the decision unless it 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. Eiland, 764 S.W.2d at 833. The standard of review for due process afforded a student for an academic dismissal is that a court will not interfere with the school’s action if it finds some rational basis for the action. Id. at 834.

2. Due process afforded for disciplinary dismissal

In the present case, the medical school states that Than would not have been expelled for receiving a failing grade on his surgery exam; he would have been given the opportunity to retake the exam. Instead, he was accused of “scholastic dishonesty,” given a failing grade rather than the grade he achieved on the exam, and expelled from school. Than’s punishment for allegedly cheating on the exam, i.e., a failing grade and expulsion from medical school, was disciplinary in nature, not academic.

Once a court determines that due process applies, the question of what process is due must be determined. Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1974) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). A state university student accused of dishonesty concerning an exam is entitled to a higher level of procedural due process. Jaksa, 597 F.Supp. at 1249.

The ultimate test of due process of law in an administrative hearing is the presence or absence of rudiments of fair play and fundamental fairness. James v. Wall, 783 S.W.2d 615, 619 (Tex.App.— Houston [14th Dist.] 1989, no writ). Courts have imposed a sliding scale of due process that must be afforded a student who is punished for disciplinary reasons. See Boykins v. Fairfield Bd. of Educ., 492 F.2d 697, 701 (5th Cir.1974) (“The requirements of due process are sufficiently flexible to accommodate themselves to various persons, interests, and tribunals without reduction to a stereotype and hence to absurdity.”), cert. denied, 420 U.S. 962, 95 S.Ct. 1350, 43 L.Ed.2d 438 (1975). If the punishment is not de minimis, then the due process afforded the student must be more closely scrutinized by a reviewing court for arbitrariness. See Goss, 419 U.S. at 576, 95 S.Ct. at 737. As the Supreme Court of the United States stated:

The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it deserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.

Id. at 579-80, 95 S.Ct. at 739. See also Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 155 (5th Cir.1961) (“Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be consonant with due process of law. The minimum procedural requirements necessary to satisfy due process depend upon the circumstances and the interests of the parties involved.”), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961).

We do not hold that the alleged failure of the medical school to follow its own rules and procedures was a per se violation of Than’s due process rights. We do hold, however, that under the abuse of discretion standard we must apply to the grant of a temporary injunction, the trial court was entitled to examine the whole picture to determine whether Than presented some evidence that the medical school’s cumulative violation of its rules and procedures showed his probable right of recovery on the merits of his due process claim. If Than offered some evidence that the medical school acted arbitrarily and that the administrative hearing lacked fundamental fairness, cf. University of Houston v. Sabeti, 676 S.W.2d 685, 689 (Tex.App.— Houston [1st Dist.] 1984, no writ) (record showed that a fair hearing was conducted that gave the appellee fair opportunity to defend himself against his accusers), the trial court did not abuse its discretion in concluding that he would prevail on the merits of his due process claim and in granting the temporary injunction. See Regents v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985).

In the present case, the record before this Court indicates the trial court considered evidence that Than was afforded a hearing before Yvonne Russell, M.D., who is Assistant Vice-President for Student Affairs and Dean of Students for the School of Medicine at the University of Texas Medical Branch at Galveston. Dr. Russell’s recommendation that Than be expelled for cheating was supported by letters from two proctors. One of the proctors, Karen Winkler, stated in her letter that Than “continually kept glancing in the direction of [the other student’s] answer sheet in rather quick, furtive glances,” for a period of 15 to 20 minutes. Winkler was seated in the back of the room. The other proctor, Rita Hesse, stated that she was approached by Winkler and asked to watch Than. Hesse said she stood by Than and watched him for 10 to 15 minutes, but “noticed no irregularity.” When she moved to the back of the room, she watched as Mr. Than repeatedly darted glances to his front left for a period of 15 to 20 minutes. Dr. Russell also considered a letter from the NBME that compared Than’s incorrect answers with those of the student on whose paper Than was accused of looking. The hearing officer’s letter to the school showed that she relied heavily on the NBME letter, which set forth admittedly inconclusive statistics about the correlation of incorrect answers on the two papers. The record also shows that Dr. Russell made an ex parte visit to the examination room and would not allow Than to accompany her. The hearing officer also considered that Than’s motive to cheat might have been induced by a failing grade on his psychiatry exam, an issue that Than was unprepared to address and that was later rebutted by a letter from his psychiatry professor to Dr. Low.

Evidence adduced at the trial court’s hearing on the temporary injunction shows that the hearing examiner heard certain offers of evidence that, when considered together, resulted in her recommendation that the medical school find Than guilty of academic dishonesty. This process is outlined in the examiner’s letter to the medical school explaining her decision. Three of the factors considered material by the hearing officer in reaching her decision, (the letter from NBME, the ex parte visit, and the motive testimony), were found by the trial judge to have been tainted by due process deficiencies.

With respect to the dissent, we do not feel an appellate court must review each finding of the trial court, as in reviewing an appeal on the merits, in order to determine whether the judge abused her discretion. Rather, we apply the standard for reviewing the grant of a temporary injunction — whether the applicant presented some evidence to reasonably support a probable right of recovery on the merits of his claim. We hold that it was well within the trial judge’s range of proper discretion to determine that Than offered some evidence that alleged violations of his due process rights under the Regent’s Rules, that, taken as a whole, were sufficient to taint the decision-making process, and thus, render the hearing fundamentally unfair by substantive due process standards. Because Than met his burden of showing a probable right of recovery on the merits, the trial court did not abuse its discretion in granting the temporary injunction.

We conclude that the evidence adduced at the hearing for the temporary injunction reasonably supports the trial court’s finding of probable injury and probable right of recovery. We hold that the trial court did not abuse its discretion in granting the temporary injunction. We overrule appellant’s point of error and affirm the judgment of the trial court.

Motion for Contempt

The relief requested by Than in his emergency motion for contempt would require this Court to adjudicate the merits of his cause of action. We are unable to do so under established law, Davis, 571 S.W.2d at 861-62; Moreno, 808 S.W.2d at 211, and, therefore, deny the motion for contempt. We order, pursuant to our authority under Rule of Appellate Procedure 80(c), that mandate on the judgment of affirmance issue immediately. Tex.R.App.P. 43(g). We urge the parties to expeditiously refer the matters addressed in Than’s motion for contempt to the trial court’s immediate attention.

DUNN, J., dissents.

1

. This interlocutory order is appealable under section 51.014(4) of the Texas Civil Practice and Remedies Code. See Henderson v. KRTS, Inc., 822 S.W.2d 769, 771 n. 1 (Tex.App. — Houston [1st Dist.] 1992, n.w.h.).