Richards v. University of Alaska ( 2016 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
QWYNTEN RICHARDS, )
) Supreme Court No. S-15245
Appellant, )
) Superior Court No. 4FA-10-01246 CI
v. )
) OPINION
UNIVERSITY OF ALASKA, )
) No. 7090 – March 18, 2016
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Qwynten Richards, pro se, Fairbanks,
Appellant. Susan Orlansky, Reeves Amodio LLC,
Anchorage, for Appellee.
Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger,
Justices. [Winfree, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
After a two-day hearing, the University of Alaska Fairbanks (UAF)
dismissed Qwynten Richards from her Ph.D. program for failing to respond to feedback
from her professors in a variety of settings. An Appeals Committee at UAF affirmed
Richards’s dismissal from the program because it concluded that there were sufficient
negative reviews from her professors to support her dismissal and that she had failed to
satisfactorily complete a “remediation” assignment given to her after the faculty found
she plagiarized parts of a paper. Richards appealed to the superior court. The court
affirmed, holding that UAF was reasonable in characterizing her dismissal as academic,
that it substantially complied with its procedures, and that Richards received due process.
It also awarded UAF 10% of its claimed attorney’s fees. Richards appeals, and we
affirm.
II. FACTS AND PROCEEDINGS
A. Facts And Administrative Proceedings
Qwynten Richards began attending UAF for a Ph.D. program in
Clinical-Community Psychology in the fall of 2007. In her year-end review for the
2007-2008 academic year, Richards received a satisfactory review. The review was
generally positive, but it also noted a few areas of concern, namely that Richards was
quiet in class but this was improving, that she was too critical of the Diagnostic and
Statistical Manual (DSM), and that her instructors noted that she had difficulty accepting
feedback.
Immediately following this review, Dr. Christiane Brems, a professor for
one of Richards’s courses, brought a possible incident of plagiarism to the attention of
the co-teacher of the course, Dr. James Allen. Dr. Allen alerted Don Foley, the Associate
Vice Chancellor of Student Life and Director of Judicial Services, to the incident, and
Dr. Allen requested that he, Dr. Brems, Foley, and Richards meet to discuss the issue.
Drs. Allen and Brems were also the Directors of Clinical Training for the program. They
notified Richards and directed her to attend a meeting to discuss the allegations. They
informed Richards of the specific paper in question: the integrated paper she had
submitted in fulfillment of the course requirements of Psychology 601, a seminar in
“Clinical/Community/Cross-Cultural Integration.” They also notified her of the
provisions of the University of Alaska Student Code of Conduct (“Student Code of
Conduct”) prohibiting plagiarism. Richards denied the plagiarism allegation.
-2- 7090
Dr. Brems, Dr. Allen, Foley, and Richards met on May 28, 2008. At that meeting
Richards was “advised sections of the [integration] paper [she] submitted appeared to
have been plagiarized.” She was “given the opportunity to present [her] views on the
situation.” After the meeting Richards emailed Dr. Allen, Dr. Brems, and Foley and said
that she was glad she had been given the chance to explain that she had satisfactorily
cited all of her sources in the paper.
On June 19 the core faculty of Richards’s program met in an executive
session without Richards to discuss the situation. At this meeting the faculty
“unanimously concluded [that Richards’s] writing constituted plagiarism,” defining
plagiarism as “presenting as [one’s] own the ideas or works of another person without
proper acknowledgment of sources.” They gave Richards a new annual review that
changed her performance to unsatisfactory, stated that she would receive an F for the
paper and a grade of Not Passing (NP) for the course, and that she would be required to
write a remediation paper on “how and why [her] Integration paper was judged to have
been plagiarized.” The faculty decision also noted that she “should know that [she has]
the right to appeal academic decisions” and that she should “refer to the Academics and
Regulations, Appeal of Academic Decisions section of the 2008-2009 UAF catalog.”
Richards did not appeal this decision. The updated review also warned that “[a]ny
breach of these expectations can result in non-continuation in the Ph.D. Program in
Clinical-Community Psychology.”
Richards submitted her remediation paper for faculty review. In January
2009 Dr. William Connor, UAF Director of Clinical Training, and Dr. Brems notified
Richards that the core Ph.D. faculty had concluded that her remediation paper did not
meet the assignment requirements because it did not demonstrate “an understanding of
how and why [the] paper was judged to have been plagiarized,” and it “did not show an
acknowledgment that there is an agreed upon standard with regard to crediting
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authorship that has been established by and used in the profession of psychology.”
While the document did not contain appeal language, the faculty did conduct an informal
reconsideration of their decision at Richards’s request.
Richards’s inability to accept feedback was not limited to problems with
her remediation paper. Many other professors noted these issues in a variety of settings.
For instance, the professor for whom Richards served as a research assistant asked her
to resign. The professor stated that Richards’s “future success is in part contingent on
[her] ability to accept and be responsive to feedback” and that Richards’s “inability to
do so contributed to [the professor’s] decision to ask her to resign.”
Richards also engaged in a clinical practicum with Dr. Michael Hopper.
Dr. Hopper noted that Richards was “quick to question and doubt the judgement and
experience of others.” At her final review in May 2009, Dr. Hopper wrote that
Richards’s
inability to accept constructive criticism in supervision and to
explore personal issues . . . led to serious impasses with this
supervisor and to a suspension of her right to practice briefly
in the clinic. In the end I found supervision to have been
extremely difficult with [Richards] as she does not seem to
understand the role of a trainee and insists on a position of
equality and personal competence which she has not yet
earned.
He concluded that although her work with clients was “commendable,” Richards “did
not earn [his] confidence in her abilities and [he] do[es not] recommend her at this point
for continued clinical training until she is able to resolve the issues that have plagued her
training to this point.”1
1
The superior court found that, given the tone of the comments, Dr. Hopper
meant to write “do not recommend” rather than “do recommend.” Richards does not
dispute this finding on appeal.
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In April, just prior to Dr. Hopper’s review, the full Ph.D. faculty met at its
annual student review meeting and unanimously recommended not continuing Richards
in the program. On June 11 the faculty sent Richards a letter stating that “[d]ue to the
fact[] that [she had] received two years of negative evaluations, and that the core faculty
in the Ph.D. program ha[d] lost faith in [her] ability to receive and respond to
professional feedback in academic, clinical and research settings, the faculty
recommends that [she] resign” from the Ph.D. program. The faculty informed her that
she had “three weeks to either respond to this recommendation or resign” and that if she
chose not to resign, “the next steps outlined in the ‘Student Impairment and
Incompetence Policy’ as listed in the current Ph.D. Student Handbook [the
‘Handbook’] . . . [would] be followed.” Specifically, the faculty informed her that if she
chose not to resign, the Governance Committee would hold a hearing to determine
whether to dismiss her from the program.
Richards chose not to resign. Instead, she submitted voluminous materials
to the Governance Committee detailing high marks and documenting favorable reviews
from her professors. The faculty transmitted a memo to the Governance Committee
outlining the steps it had taken and its reasons for recommending Richards’s dismissal.
The Governance Committee held a hearing on September 3-4. Richards did not present
any witnesses, but she did testify on both days of the hearing. Richards did not exercise
her option to have an attorney present, but she did have a student representative attend
with her.
On September 17, UAF sent Richards a letter notifying her that the
Governance Committee had decided to dismiss her from the Ph.D. program. The letter
cited Richards’s two semesters of not-in-good-standing status, her failure to satisfactorily
complete the remediation assignment, and her failure to “accept or act upon feedback in
clinical and research settings.” The letter informed Richards that she had “10 days from
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the receipt of this letter to appeal this decision in writing to UAF Provost Susan
Henrichs.”
Richards first informally appealed the decision in a meeting on October 6
with Lawrence Duffy (the Interim Dean), Laura Bender (the Director of the Graduate
School), and Dr. Abel Bult-Ito (a professor who had become an advocate for Richards).
The Dean noted that Richards’s detailed appeal
mainly addresse[d] [her] disagreement with the professionals
who worked with [her] and gave [her] grades . . . . In this
informal appeal, [his] decision remain[ed] unchanged in that
[he placed] greater weight on the professional opinion of the
faculty than on [Richards’s] opinion of how the program
should evaluate students.
He concluded that the “decision remain[ed] unchanged,” and he advised Richards of her
right to appeal to UAF Provost Henrichs.
Richards formally appealed the decision to the Provost on October 31. The
Appeals Committee met on December 3 and issued a decision on December 10. The
decision stated that the Appeals Committee had “reviewed all of the documentation
submitted[] and engaged in lengthy deliberation.” The Appeals Committee dismissed
Richards’s appeal concerning her termination from the Ph.D. program.2 It determined
that the faculty was within its rights to make the decision to dismiss her from the Ph.D.
program, that feedback was vital in psychology, and that even if a student disagreed with
feedback “it is critical in a program requiring professional licensure that students comply
with professional requests and advice.” But the Appeals Committee determined that
Richards could apply to other programs in the graduate school through the normal
application process. Richards appealed this decision to the superior court.
2
The Appeals Committee used the term “dismissed” in the sense that it
denied or rejected Richards’s appellate arguments, thereby upholding the Governance
Committee’s decision to dismiss her from the Ph.D. program.
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B. Superior Court Proceedings
The superior court affirmed Richards’s dismissal from the Ph.D. program
at UAF. First, it concluded that it was not arbitrary, unreasonable, or an abuse of
discretion for UAF to characterize Richards’s dismissal as academic, rather than
disciplinary.3 It further noted that the reasons Richards had been dismissed — failure to
accept feedback from her professors throughout her time in the program, particularly as
a research assistant and in her clinical practicum, and failure to demonstrate an
understanding of why her paper constituted plagiarism — were academic reasons in light
of Nickerson v. University of Alaska Anchorage, where Nickerson’s academic dismissal
was for “hostile, abrasive, intimidating, and unprofessional behavior.”4 Second, it
concluded that UAF substantially complied with its policies relating to academic
violations as laid out in the Handbook. Finally, it held that Richards received ample due
process because UAF provided her with notice, multiple opportunities to be heard,
careful deliberation, and independent review.
UAF asked for 50% of its attorney’s fees, roughly $25,000, because
Richards’s “long and complex briefing” resulted in substantial extra expenses. Richards
argued that requiring her to pay any attorney’s fees was improper because she was a
constitutional litigant and did not have a monetary interest in the case. The court
concluded that Richards was not a constitutional claimant and determined that an award
of 20% of UAF’s fees would be appropriate under Alaska Rule of Civil
Procedure 82(b)(2). However, the court also worried about chilling future claims and
therefore awarded only 10% of UAF’s claimed attorney’s fees.
3
The university procedures and the level of due process that our precedent
requires differ for academic proceedings and disciplinary proceedings. See Nickerson
v. Univ. of Alaska Anchorage, 975 P.2d 46, 52-54 (Alaska 1999).
4
Id. at 52.
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Richards appeals. In this appeal, we address three central issues:
(1) whether the appeal was academic or disciplinary; (2) whether UAF substantially
complied with its procedures and whether evidence in the record supported its decision;
and (3) whether Richards received due process. We will also discuss the superior court’s
award of attorney’s fees.
III. STANDARD OF REVIEW
“In administrative appeals, we directly review the agency action in
question.”5 We review questions of fact for substantial evidence, which is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”6 “We
need only determine whether such evidence exists, and do not choose between
competing inferences.”7
We will not override a school’s academic decision “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.”8 We review
whether the school complied with its policies under the “arbitrary, unreasonable,
or . . . abuse of discretion” standard.9 Questions of law that require agency expertise are
5
Brown v. Pers. Bd. for City of Kenai, 327 P.3d 871, 874 (Alaska 2014)
(quoting Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013)).
6
Id. (quoting Grimmett, 303 P.3d at 487).
7
Handley v. State, Dep’t of Revenue, 838 P.2d 1231, 1233 (Alaska 1992).
8
Bruner v. Petersen, 944 P.2d 43, 48 (Alaska 1997) (quoting Regents of the
Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)).
9
Nickerson, 975 P.2d at 50 n.1 (quoting Szejner v. Univ. of Alaska, 944 P.2d
481, 484 n.2 (Alaska 1997)).
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reviewed under the “reasonable basis” standard.10
Whether “the University procedures comported with due process involve[s]
a question of law not requiring agency expertise.”11 Thus, we review this question using
our independent judgment.12
We review an attorney’s fees award for an abuse of discretion and will
reverse when “the award is arbitrary, capricious, manifestly unreasonable, or improperly
motivated.”13
IV. DISCUSSION14
10
May v. State, Commercial Fisheries Entry Comm’n, 175 P.3d 1211,
1215-16 (Alaska 2007).
11
Nickerson, 975 P.2d at 50 n.1.
12
Id.
13
Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008) (quoting Kellis v.
Crites, 20 P.3d 1112, 1113 (Alaska 2001)).
14
We are able to dispose of several of Richards’s arguments in summary
fashion. (1) Richards argues that she did not plagiarize her paper, that no finding of
plagiarism was ever made, and that no one identified the problematic portions of the
paper. However, the record clearly establishes that the faculty unanimously concluded
that Richards’s writing constituted plagiarism. Furthermore, the issues discussed with
Richards during the May 2008 meeting and Richards’s email discussing how she had
responded to the allegations by showing that sources were correctly cited reveal that
Richards knew which portions of the paper were in question.
(2) Richards does not dispute that she did not appeal the plagiarism decision
even though she had the right to do so and was informed of this right. However,
Richards argues that an appeal would have been futile because the allegation was
unfounded, she was not threatened with dismissal at the time, her accusers would be the
decision-makers on appeal, she had no advisor to advise her, and she was experiencing
family issues. Contrary to her assertion, the amended review clearly states that dismissal
was a possibility. Secondly, the appeals policy provides for an informal appeal with the
decision maker followed by a formal appeal to the Provost, a person outside Richards’s
(continued...)
-9- 7090
A. UAF Acted Reasonably When It Characterized The Dismissal As An
Academic Dismissal.
Richards contends that UAF arbitrarily characterized her dismissal as
academic when the dismissal was actually disciplinary. Richards focuses her argument
on the facts that (1) the Student Code of Conduct defines plagiarism as a disciplinary
infraction; (2) Foley, the Director of Judicial Services, initiated the plagiarism allegation;
(3) the initial notice of the plagiarism allegation directed her to the Student Code of
Conduct plagiarism section and disciplinary policy 09:02, not the Handbook; and (4)
plagiarism proceedings are disciplinary because plagiarism allegations imply dishonesty.
Nickerson presented a similar question. Nickerson was enrolled in the
University of Alaska Anchorage’s Teacher Certification Program, and he was dismissed
14
(...continued)
core faculty. The Appeals Committee also did not include her accusers. Moreover, her
family issues and the lack of advisor do not make the appeal futile under Alaska case
law, and her belief that the allegations were unfounded should have caused her to appeal.
See, e.g., Nickerson, 975 P.2d at 52 n.2; State, Dep’t of Revenue v. Hernandez, No. S­
10745, 2004 WL 1092334, at *6 (Alaska May 12, 2004) (holding that appeal was futile
when the State already refused to address issue).
(3) Richards makes many factual assertions, both about facts the superior
court found and facts that did not impact the decisions of the University and the superior
court. Richards alleges that Dr. Allen was the one who accused her of plagiarism and
that all of the negative reviews in the 2008 evaluation were from one sexist professor.
These factual allegations are unsupported.
(4) Finally, Richards argues that being forced to write the remediation paper
violated her right against self-incrimination and that by having one informal meeting and
then a second executive meeting of the faculty regarding the plagiarism issue, UAF put
her in double jeopardy. But the right against double jeopardy does not apply outside the
criminal context, absent extreme circumstances not present here. Hudson v. U.S., 522
U.S. 93, 98-99 (1997). See also Doe v. State, 189 P.3d 999, 1007 & n.58 (Alaska 2008).
And although the right against self-incrimination applies in “any ‘proceeding, civil or
criminal, formal or informal, where the answers might incriminate [the party] in future
criminal proceedings,” plagiarism is not a crime. Armstrong v. Tanaka, 228 P.3d 79, 82
(Alaska 2010). See also Lawson v. Lawson, 108 P.3d 883, 887 (Alaska 2005).
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based on his failure to respond to feedback and his hostile behavior towards professors
and colleagues.15 UAA characterized Nickerson’s dismissal as an academic, not
disciplinary, dismissal.16 We acknowledged that this issue was a close call and accepted
the University’s decision because “the determination whether to dismiss a student for
academic reasons requires an expert evaluation of cumulative information and is not
readily adapted to the procedural tools of judicial or administrative decisionmaking.”17
Richards contends that she “experienced allegations . . . that were . . . very
similar to those made against Nickerson.” But Richards appears, as a whole, to argue
that she was dismissed because she plagiarized her paper. However, the record does not
support a finding that UAF dismissed Richards for plagiarism. Rather, she was
dismissed principally because she could not appropriately accept feedback in all settings,
including in her research assistantship and clinical practicum, during which she was
unwilling to accept constructive criticism and was quick to doubt the judgment and
experience of others. These problems escalated to the point that Richards was asked to
resign from her research assistant position and was suspended from her clinical
practicum. In dismissing Richards, UAF also relied on the facts that she had not
completed the remediation assignment to satisfactory standards, and she had not been in
good standing for two semesters.
Although plagiarism is listed in the Student Code of Conduct as a
disciplinary infraction, the conduct for which Richards was actually dismissed fits into
the Handbook’s “Academic Impairment” section. This section lists, as examples of
15
Nickerson, 975 P.2d at 48-49.
16
Id. at 52-53.
17
Id. at 53 (quoting Bd. of Curators of the Univ. of Mo. v. Horowitz,
435 U.S. 78, 90 (1978)).
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conduct that may constitute academic impairment, an “inadequate level of self-directed
professional development” and “inappropriate use of and/or response to supervision or
academic guidance.”
Richards also claims that the dismissal must have been disciplinary because
Foley was involved from the beginning, and Richards was initially directed to the
Student Code of Conduct. These arguments do not have merit. When examining UAF’s
course of conduct as a whole, the weight of the evidence makes clear that UAF
consistently used academic procedures after the very beginning of the proceedings. Not
only did UAF’s initial plagiarism-related decision clearly state that Richards could
appeal the “academic decision[],” but UAF also followed the steps laid out in the
Handbook for academic issues [See Section B, infra], and UAF’s General Counsel
discussed the issue as being academic in internal emails. To place too much weight on
UAF’s preliminary initiation of procedures before either party had all relevant
information when determining whether an issue is academic or disciplinary would
severely hamper UAF’s ability to correctly classify proceedings as academic or
disciplinary.
We conclude, based on our holding in Nickerson, that UAF acted
reasonably when it classified Richards’s dismissal for failure to follow feedback as an
academic dismissal.
B. UAF Substantially Followed Its Legally Valid Procedures, And The
Dismissal Was Not Arbitrary Or Capricious.
Richards argues (1) that UAF should not have applied the Handbook
procedures18 and (2) that UAF did not comply with those procedures.
18
A few of Richards’s arguments in this section of her brief relate back to the
disciplinary versus academic dichotomy. For example, she argues that the May 2008
meeting with Dr. Brems, Dr. Allen, and Foley was not “informal” — and therefore
(continued...)
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She also takes issue with the substance of the Handbook procedures as they relate to due
process considerations.19
1. It was not arbitrary or capricious to apply the procedures in the
program Handbook.
UAF has several sets of governance rules: Regents’ policies, university
regulations, faculty senate policies, and the program Handbook. Regents’ policies
include a very broad statement that if a student is dismissed for academic reasons, the
challenge is to be reviewed in accordance with procedures set forth in university
regulations and the Major Academic Unit’s rules and procedures.20 The university
regulation for academic dismissal is more specific and provides that the Major Academic
Unit’s rules and procedures will set forth formal and informal processes by which a
student can obtain review of an academic dismissal from a program of study.21 It does,
18
(...continued)
started the disciplinary process — because she was required to be there, the Dean and
Provost were copied, and the request was sent on letterhead from Foley, the Director of
Judicial Services at UAF. This contention is merely another argument that the
procedures were disciplinary, an issue we address above. Even if her argument is that
the superior court erred by characterizing this proceeding as informal, she is also
incorrect. No witnesses were called; it was not a hearing. It is better characterized as a
time when Richards was able to explain her side of the story in an informal setting. The
Handbook itself supports this conclusion, noting that Step Five begins the initiation of
formal action and suggesting that previous steps are meant to serve as “informal methods
at problem resolution.”
19
Richards argues that the Handbook procedures as written do not provide
students with due process; we address these arguments in the following section.
20
Regents’ Policy P09.03.024, available at
http://www.alaska.edu/bor/policy/09-03.pdf.
21
University Regulation R09.03.024(C), available at
http://www.alaska.edu/bor/policy/09-03.pdf.
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however, require that the process include a request for a formal review, review by an
academic decision review committee, and a final decision provided to the student in
writing.22 The faculty senate policies include an even more in-depth description of the
process.23 Under these policies, the process begins with the student requesting an
informal review of the decision. Afterwards the student may ask for a formal review by
a five-member Appeals Committee if the student is dissatisfied with the informal
review.24 At the meeting the Appeals Committee may decide to dismiss25 the student’s
request for formal review if the student has failed to provide a sufficient reason that the
academic decision was “arbitrary and capricious.”26 If the Appeals Committee decides
to accept the appeal, it will schedule a second meeting to review the request.27 Finally,
the program Handbook lists an even more detailed set of mechanisms, especially leading
up to the formal appeal.
There is no merit to Richards’s argument that the Regents’ broad policies
should have been applied over the more specific program Handbook. The Regents’
policy explicitly provides that the grievance will be reviewed in accordance with the
22
University Regulation R09.03-024(C)(1)-(5), http://www.alaska.edu/
bor/policy/09-03.pdf.
23
See UAF Governance, Appeals Policy For Academic
Decisions, Procedures, https://www.uaf.edu/uafgov/faculty-senate/policies-procedures/
appeals-policy-for-academ/.
24
Id. §§ (A)-(B).
25
See supra note 2.
26
UAF Gover n ance, Appeals Policy For Acad emic
Decisions, Procedures § (B)(3)(d), https://www.uaf.edu/uafgov/faculty-senate/
policies-procedures/appeals-policy-for-academ/.
27
Id. § (B)(4).
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Major Academic Unit’s policies, and it directs the reader back to the Handbook itself.
The Handbook appears to be the most specific set of rules applicable to Richards’s
program, so it was neither arbitrary nor capricious for UAF to conduct the proceedings
according to the Handbook.
2. UAF substantially complied with the program Handbook.
In Nickerson we held that the University’s actions were not an abuse of
discretion because they substantially complied with the course catalog.28 UAF’s program
Handbook is similar to the course catalog in Nickerson.29 Since UAF substantially
complied with the Handbook’s published procedures on dismissal, UAF’s conduct was
not arbitrary, capricious, or an abuse of discretion.30
The program Handbook has eight steps. It is a straightforward exercise to
relate the turn of events in this case with the step-by-step framework in the Handbook.31
28
Nickerson v. University of Alaska Anchorage, 975 P.2d 46, 52
(Alaska 1999).
29
See id. at 51 (describing the course catalog as setting out procedures for
appeals of academic decisions, including dismissal).
30
Id. at 52.
31
These steps, in summary, are:
(1) Anyone may bring a complaint against a student to the Directors of
Clinical Training. A small group discusses the complaint to decide whether it warrants
investigation. Step One occurred when Dr. Allen contacted Dr. Brems and Foley. The
three discussed the plagiarism allegation via email and decided to meet with Richards.
(2) The Directors meet with the student. Step Two occurred when
Dr. Allen, Dr. Brems, and Foley met with Richards in May 2008. They allowed
Richards to provide input, as the step requires.
(3) The full Ph.D. faculty meets for an executive session to make an initial
determination about whether to pursue further action under the Handbook. Step Three
(continued...)
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31
(...continued)
occurred when the core Ph.D. faculty met in June 2008. At the meeting the faculty made
an initial determination that Richards had plagiarized her paper and decided to give her
a remediation assignment. Richards was notified of the faculty’s decision at a meeting
held in July. She was also notified that she could appeal the decision, which she did not.
Instead she wrote the remediation paper. Because she did not appeal the decision to the
Governance Committee and the faculty decided not to recommend her dismissal at that
time, the remainder of the steps did not apply in 2008. When Richards failed to complete
the remediation assignment in 2009, a reasonable reading of the Handbook returned the
process to Step Three. When the core faculty met again in April 2009 to discuss
Richards’s situation, it recommended dismissing Richards from the program, and it sent
her a letter asking her to resign.
(4) The student, the student’s advisor, and the faculty member making the
accusation meet to discuss the matter and, if applicable, discuss a remediation plan. The
student may seek an informal resolution during this meeting if the student disagrees with
the faculty’s decision. This meeting took place on June 11, 2009, and Richards received
the memo asking her to resign at that time.
(5) If the problem cannot be resolved informally, the Governance
Committee reviews the dispute and decides whether to dismiss the student. Witnesses
may testify at this stage, and the student will be given copies of all written materials the
Governance Committee is considering. The student may have an attorney present. The
Governance Committee met in September 2009 and took testimony from Richards over
the course of two days, in satisfaction of Step Five.
(6) The Governance Committee reaches a decision. (This step is mislabeled
as Step Five in the Handbook.) The Governance Committee decided on a “formal course
of action,” dismissing Richards, during Step Six.
(7) The Governance Committee notifies the student in writing of its
decision. The student may appeal this decision. (This step is mislabeled as Step Six in
the Handbook.) The Governance Committee transmitted its decision to Dean Duffy, who
notified Richards of the decision in writing that same day. Step Seven allows the
Governance Committee to delegate notification to a third party, so it was proper for Dean
Duffy to notify Richards.
(8) If a remediation plan is given, the student and the student’s advisor meet
to ensure it is completed. If the student fails to complete the remediation assignment, she
(continued...)
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After Step Seven, when Dean Duffy notified Richards that the Governance Committee
had decided to dismiss her, the procedure moved to UAF’s faculty senate regulations,
which are reproduced in the Handbook.
The senate regulations require the student to attempt first to resolve the
issue informally. Richards informally appealed to Dean Duffy because the department
chair, Dr. Allen, was directly involved. Dean Duffy concluded that the decision to
dismiss Richards would remain unchanged. As per the regulations, Richards filed a
formal appeal with the Provost on October 31, 2009. The Appeals Committee met on
December 3.32 The Appeals Committee dismissed Richards’s appeal because it
concluded that she did not provide sufficient support for her assertion that the academic
decision was arbitrary and capricious.
UAF did a thorough job of following its internal policies and regulations;
therefore we conclude that UAF did not act in an arbitrary or capricious manner in
dismissing Richards from the program.33
31
(...continued)
may be dismissed from the program. (This step is mislabeled as Step Seven in the
Handbook.)
32
Richards argued before the superior court, but does not now argue, that the
Appeals Committee met outside of the mandated ten-day period. The superior court’s
reasoning on this issue is persuasive: that the regulation requires the Appeals Committee
to set a date within ten days of receiving the appeal. But even if the regulation required
the meeting to be held within ten days, Richards has not shown she was prejudiced by
this mistake, and UAF substantially complied with its regulations overall, even when
considering this deficiency.
33
Richards points to the substantial amount of coursework she submitted in
the administrative proceedings demonstrating favorable comments as evidence of her
positive academic performance. But there was also substantial evidence that she refused
to accept feedback, both in classes and on the plagiarism issue. The fact that Richards
(continued...)
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C. The Superior Court Did Not Err In Holding That Richards Received
Due Process.
Neither we “nor the United States Supreme Court has specifically held that
dismissal from a graduate program constitutes deprivation of a liberty or property
interest.”34 But “a school must provide minimal process before suspending or dismissing
a student for disciplinary reasons.”35 We have adopted the United States Supreme
Court’s approach that such due process is satisfied if “(1) the school fully informs the
student of its dissatisfaction with [her] performance and the danger that this deficiency
poses to continued enrollment, and (2) the ultimate decision to dismiss is careful and
deliberate.”36 The level of due process required for an academic dismissal would be less
than the minimal due process required for a disciplinary dismissal.37
1. Amount of process required
Richards argues that because of the stigmatizing nature of the allegations
against her — failure to accept feedback and (she contends) plagiarism — she should
receive more due process than required in Nickerson. She interprets Nickerson as
dissolving the distinction between academic and disciplinary dismissals, entitling her to
disciplinary due process protections. Neither of these arguments has merit. The
33
(...continued)
had other, more favorable comments on her work does not make UAF’s decision
arbitrary or capricious.
34
Nickerson, 975 P.2d at 52.
35
Id. at 52 (quoting Szejner v. Univ. of Alaska, 944 P.2d 481, 486
(Alaska 1997)).
36
Id. at 53 (citing Bd. of Curators of the Univ. of Mo. v. Horowitz,
435 U.S. 78, 85 (1978)).
37
Id. at 52-53.
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allegations in Nickerson — “hostile,” “abrasive,” “intimidating,” and “unprofessional”
behavior while teaching — are just as stigmatizing as the allegations against Richards —
her inability to accept feedback in various situations and her failure to satisfactorily
complete her remediation assignment. And her argument that Nickerson dissolved the
distinction between academic and disciplinary due process does not follow from a
reading of the case. In Nickerson we repeatedly cited to the distinction between
academic and disciplinary process, at one point stating that “a university imposing
sanctions for improper conduct cannot avoid the marginally greater protections for
disciplinary proceedings, including an informal hearing, by labeling the dismissal
academic rather than disciplinary.”38 Moreover, the difference in these two procedures
was the basis for our discussion in Nickerson of whether the dismissal was academic or
disciplinary.39
Nothing in Richards’s arguments provides a reason to depart from the
standard in Nickerson that “[d]ismissal of a student for academic reasons comports with
the requirements of procedural due process if the student had prior notice of faculty
dissatisfaction with his or her performance and of the possibility of dismissal, and if the
decision to dismiss the student was careful and deliberate.”40
2. Bias by decision makers
To meet any due process standard the decision makers must not have been
biased, so we next address Richards’s accusations of bias.41 First, Richards argues that
38
Id. at 53.
39
Id.
40
Id. (quoting Schuler v. Univ. of Minn., 788 F.2d 510, 514 (8th Cir. 1986)).
41
See Withrow v. Larkin, 421 U.S. 35, 47 (1975) (holding that a biased
(continued...)
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Dr. Allen was biased against her because she reported an incident of sexism by another
professor to him. Not only is evidence related to the allegation of sexism not present in
the record, but the professor in question was not a member of either the Governance
Committee or the Appeals Committee. Nor was Dr. Allen on the Governance Committee
or the Appeals Committee.
Richards’s other arguments relating to bias center on the Governance
Committee hearing and the Appeals Committee meeting. She argues that Michael
O’Brien, UAF’s General Counsel, had an undue influence on the Appeal Committee
proceedings. And she argues that there were no independent reviews of her dismissal
because the Governance Committee was made up of accusing parties. She also alleges
that the materials she submitted to the Governance Committee were tampered with.
Finally, she argues that Dean Duffy was biased because he signed her dismissal on the
same day he received it.
“Administrative agency personnel are presumed to be honest and impartial
until a party shows actual bias or prejudgment.”42 Richards provides no actual evidence
supporting her allegations. She argues that it has not been proved that O’Brien did not
participate in the Appeals Committee decision, but this argument is insufficient:
argument is not evidence. And neither of the accusing parties, Dr. Allen and Dr. Brems,
were voting members of the Governance Committee or the Appeals Committee. Finally,
other than her bare allegation, there is no evidence that the materials she submitted to the
Governance Committee were tampered with. Her argument that Dean Duffy was biased
because he signed the Governance Committee decision the same day he received it fails
41
(...continued)
decisionmaker renders an administrative proceeding unconstitutional).
42
AT & T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska 2007).
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because the Handbook makes clear that he was transmitting the decision rather than
independently reviewing it.
In short, Richards offers no evidence that would rebut the presumption that
administrative agency employees are presumed to be honest and impartial. Bias does not
present a basis for us to conclude that UAF denied Richards due process.
3. Due process standard under Nickerson
Under Nickerson, Richards only needed to receive “prior notice of faculty
dissatisfaction with . . . her performance and of the possibility of dismissal” and a
decision that was “careful and deliberate.”43 Generally, the Handbook satisfies these due
process requirements and affords students adequate due process. The Handbook requires
written notice “[w]hen a student is placed on not-in-good-standing status” and cautions
that if a student does not “return to good academic standing by the end of the two
semesters following placement on not-in-good-standing [status], the student may be
dismissed from the program.” The Handbook also explicitly requires notification to the
student in Steps Four and Six. Furthermore, the Handbook’s requirements help ensure
that decisions made under Handbook procedures, including dismissal decisions, are
“careful and deliberate.” The Handbook provides for multiple meetings between
interested parties, including a preliminary discussion of the complaint in Step One and
meetings with the student in Steps Two and Four, as well as numerous opportunities for
deliberation, including a discussion among the core faculty in Step Three, an evaluation
by the Governance Committee in Step Five, and a review of the remediation plan in Step
Eight.
The superior court correctly noted that UAF went far beyond what due
process required when it dismissed Richards. Nonetheless, Richards raises many
43
Nickerson, 975 P.2d 46, 53 (Alaska 1999) (quoting Schuler, 788 F.2d at
514).
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arguments on appeal.44 The argument that goes to the heart of her due process concerns
is her argument that she did not receive proper notice of her dismissal. Richards
contends that the provisions in the Handbook warning of dismissal for failure to
remediate and continued not-in-good-standing status cannot be considered proper notice.
“[N]otice must precede the academic dismissal by a reasonable time so that
a student has a reasonable opportunity to cure his or her deficient performance.”45 “[T]o
be meaningful, a student must be given notice prior to the decision to dismiss that the
faculty is dissatisfied with [her] performance and that continued deficiency will result in
44
Many of Richards’s arguments related to this claim can be quickly
dismissed as factually inaccurate or unhelpful. (1) She argues that she was denied due
process because she did not have a lawyer or advisor present at the Governance
Committee meeting under Step Five of the Handbook. However, due process does not
require an attorney to be present. See Nickerson, 975 P.2d at 53 (holding that a hearing
is not required and not mentioning any right to representation for academic dismissals).
Nevertheless, the Handbook allows an attorney to be present, but Richards chose not to
have an attorney at this stage, even though she did have an attorney earlier in the
administrative proceedings. Although she did not choose to have an attorney present,
Richards did have a student representative on the appeals committee. (2) She alleges that
she was not allowed to present her materials to the Appeals Committee. However, the
Appeals Committee thoroughly reviewed all of the materials that Richards submitted.
(3) She argues that she should have been present at the executive faculty meeting where
the faculty found that she plagiarized the integration paper. Under the Handbook this
meeting was a closed executive meeting. Furthermore, due process does not even require
a hearing, so it is certainly not necessary for UAF to permit Richards to attend the
executive meeting. See Nickerson, 975 P.2d at 53. (4) Richards also makes the
argument that the Handbook she received was in draft form and that later changes to the
procedures indicate that UAF knew that the draft procedures were constitutionally
flawed. But the Handbook being in draft form is insufficient for us to conclude that there
were constitutional errors in it.
45
Nickerson, 975 P.2d at 53.
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dismissal.”46
Richards was given repeated notice that there were issues with her inability
to accept feedback and regarding her not-in-good-standing status. Her initial 2008
review detailed her problems accepting feedback in many situations, not just with regards
to her integration paper, and the faculty clearly informed her that her remediation paper
did not show that she understood why her integration paper was plagiarized. The
professor for whom Richards was a research assistant asked her to resign, citing her
difficulties accepting and responding to feedback. And Richards’s supervisor for her
clinical practicum also stated that she did not accept feedback well, which “led to serious
impasses” resulting in a suspension of her right to practice in the clinic. Richards was
informed that she was not in good standing both in 2008 when she received her updated
annual report and in January 2009 when the faculty deemed her remediation paper
insufficient. Although Richards received some positive comments in the 2008 annual
review, the positive messages do not outweigh the faculty’s increasingly negative reports
to her, especially at the time her remediation paper was rejected, when she was
terminated from her research assistantship, and when she was continued in
not-in-good-standing status.
Given the evidence above, Richards received sufficient notice that there
were serious concerns about her ability to accept feedback in academic and professional
settings. By the time of the Committee’s final decision to dismiss her in
September 2009, she had notice of several specific examples detailing her inability to
receive feedback, including the rejection of her remediation paper, the continuation of
her not-in-good-standing status, and her dismissal from her research assistantship.
Secondly, Richards was given sufficient notice that continuation on her
46
Id.
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current course would result in dismissal.47 Although Richards was not directed to the
Handbook during the 2008 annual review, she was directed there in the 2009 dismissal
recommendation. And she was informed of her tenuous status in the 2008 amended
review when the review stated that she was “expected to reflect . . . professionalism in
conduct, and compliance with the APA Ethical Code and the UA Student Code of
Conduct. Any breach of these expectations can result in non-continuation in the Ph.D.
Program.” The review also included the statement, “A review will be conducted at the
Annual Student Professional Development Review in Spring 2009, at which time a
determination about your standing as a graduate student will be made.” These statements
were each repeated once more in the review. The program Handbook also served as
notice, alerting Richards that more than two semesters of not-in-good-standing status as
well as any violations of the APA Ethical Guidelines could result in dismissal from the
program.48 The Handbook listed “inappropriate . . . response to supervision or academic
guidance” and “inadequate level[s] of self-directed development” as examples of
academic impairment. One indicator of an academic impairment warranting more severe
intervention is if “[t]he student’s behavior does not change as a function of feedback,
remediation efforts, and/or time.” Additionally, the Handbook states that “[i]f
remediation is not successful, student dismissal may be necessary.”
Furthermore, the record reflects the abundance of careful deliberation that
occurred before UAF faculty terminated Richards from the program, including multiple
47
Id. (“[T]o be meaningful, a student must be given notice prior to the
decision to dismiss that the faculty is dissatisfied with [her] performance and that
continued deficiency will result in dismissal.”).
48
In Hermosillo v. Univ. of Alaska Anchorage, No. S-10563, 2004
WL 362384, at *5 (Alaska Feb. 25, 2004), we adopted the opinion of the superior court,
which held the appellant “should have known that readmission to the course would be
discretionary based on the BSW Student Handbook.”
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meetings with Richards, two group meetings of faculty, and a two-day hearing where
Richards testified and the faculty reviewed the voluminous evidence she submitted.
Under our standard in Nickerson, we hold that Richards received
appropriate levels of due process.49
D. The Superior Court Did Not Abuse Its Discretion In Its Award Of
Attorney’s Fees.
Under AS 09.60.010(c) the court
may not order a claimant to pay the attorney fees of the
opposing party devoted to claims concerning constitutional
rights if the claimant as plaintiff, counterclaimant, cross
claimant, or third-party plaintiff in the action or appeal did
not prevail in asserting the right, the action or appeal
asserting the right was not frivolous, and the claimant did not
have sufficient economic incentive to bring the action or
appeal regardless of the constitutional claims involved.
The superior court concluded that Richards was not a constitutional claimant because she
had an economic interest in the outcome of the case. But the court was worried about
chilling future claimants and awarded $5,021, only 10% of UAF’s claimed attorney’s
fees. We conclude that the superior court did not abuse its discretion in this award.
Richards had a more than sufficient economic incentive to bring the suit.
As she states in her brief, she had two years of coursework invested in the Ph.D.
program, and the opportunity to pursue a Ph.D. is an economic interest.50 Richards
49
Nickerson, 975 P.2d at 53.
50
Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 282
(Alaska 2015) (“A litigant has sufficient economic incentive to bring a claim when it is
brought primarily to advance the litigant’s direct economic interest, regardless of the
nature of the claim.”). Richards also claims damages, which lessens the likelihood that
her claim is constitutional. See Ninilchik Traditional Council v. Noah, 928 P.2d 1206,
1219 (Alaska 1996) (“[T]he parties here have made no claim for monetary damages,
(continued...)
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additionally bases her claim to constitutional-litigant status on her belief that her due
process allegations make her a constitutional claimant such that the court may not require
her to pay UAF’s attorney’s fees.51 Richards is mistaken. Although Richards does assert
a constitutional right, she had “sufficient economic incentive to bring the action . . .
regardless of the constitutional claim[] involved.”52 The court therefore retained the
discretion to award attorney’s fees to UAF.
Second, UAF is correct that the award of attorney’s fees falls under Alaska
Rule of Appellate Procedure 508(e), not Alaska Rule of Civil Procedure 82.53 Appellate
Rule 508(e) has been changed substantially since the superior court’s fee decision,54 but
at the time the superior court made its decision, it read:
Attorney’s fees may be allowed in an amount to be
determined by the court . . . . If the court determines that an
appeal or cross-appeal is frivolous or that it has been brought
simply for purposes of delay, actual attorney’s fees may be
awarded to the appellee or cross-appellee.
The superior court had substantial discretion under this section to award
fees, and in this case it only awarded 10% of the attorney’s fees even though UAF asked
it to award 50%. The superior court was within its discretion to consider the chilling
50
(...continued)
indicating that economic motivation was not a significant factor in bringing the claim.”).
51
AS 09.60.010(c) addresses attorney’s fees as they relate to constitutional
claimants.
52
AS 09.60.010(c).
53
See Stalnaker v. Williams, 960 P.2d 590, 597 (Alaska 1998) (“A superior
court hearing an appeal from an administrative agency awards attorney’s fees under
Appellate Rule 508, not Civil Rule 82.”).
54
See Alaska Supreme Court Order No. 1843 (April 15, 2015).
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effect a higher award could have on future students and reduce the award accordingly.
And we have upheld an even higher award percentage-wise in a past academic case.55
We hold that the superior court did not err by concluding that Richards was
not a constitutional claimant and did not abuse its discretion in awarding 10% of UAF’s
attorney’s fees.
V. CONCLUSION
We AFFIRMthe superior court’s decision upholding UAF’s administrative
decision dismissing Richards from her Ph.D. program.
55
Hunt v. Univ. of Alaska, Fairbanks, 52 P.3d 739, 746 (Alaska 2002)
(upholding approximate 20% award).
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