Amir Al-Dabagh v. Case Western Reserve Univ. , 2015 FED App. 0017P ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0017p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMIR A. AL-DABAGH, ┐
Plaintiff-Appellee, │
│
│ No. 14-3551
v. │
>
│
CASE WESTERN RESERVE UNIVERSITY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:14-cv-01046—James S. Gwin, District Judge.
Argued: January 22, 2015
Decided and Filed: January 28, 2015
Before: BATCHELDER, SUTTON, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: John B. Nalbandian, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio,
for Appellant. Peter A. Holdsworth, WEGMAN, HESSLER & VANDERBURG, Cleveland,
Ohio, for Appellee. ON BRIEF: John B. Nalbandian, TAFT STETTINIUS & HOLLISTER
LLP, Cincinnati, Ohio, David H. Wallace, Jennifer B. Orr, TAFT STETTINIUS & HOLLISTER
LLP, Cleveland, Ohio, for Appellant. Peter A. Holdsworth, Christopher A. Holecek, Patrick J.
Quallich, WEGMAN, HESSLER & VANDERBURG, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Authority to decide whether a medical student deserves a
degree usually rests with the student’s school. In this unusual case, that did not happen. A
federal district court found that Amir Al-Dabagh had proven himself worthy of a diploma and
1
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ordered Case Western Reserve University School of Medicine to give him one—disregarding the
university’s determination that he lacked the professionalism required to discharge his duties
responsibly. Because that lack-of-professionalism finding amounts to an academic judgment to
which courts owe considerable deference, we must reverse.
Anyone who has ever been to a doctor’s office knows the value of a good bedside
manner. That is why Case Western does more than just teach its students facts about the human
body. Its curriculum identifies nine “core competencies.” First on the list is professionalism.
Medical knowledge does not make an appearance until the fifth slot.
The curriculum tells a student to exercise professionalism in four ways:
 Consistently demonstrate[] ethical, honest, responsible and reliable behavior.
 Identif[y] challenges to professionalism and develop[] a strategy to maintain professional
behaviors when adherence to professional standards is threatened in the clinical and/or
research settings.
 Engage[] in respectful dialogue with peers, faculty, and patients, to enhance learning and
resolve differences.
 Recognize[] personal limitations and biases and find[] ways to overcome them.
R. 15-1 at 93, PageID #534.
The university’s student handbook emphasizes professionalism in several other places.
Here: Case Western values “student professionalism . . . as highly as mastery of the basic
sciences and clinical skills.” Id. at 61, PageID #502. And here: A Case Western degree conveys
not only “a level of competency as measured by performance on tests” but also “a commitment
to professional responsibility.” Id. at 62, PageID #503. And here: “Medical school education
entails the mastery of didactic, theoretical, and technical material, as well as the demonstration of
appropriate professional and interpersonal behavior.” R. 2-8 at 2, PageID #161.
The task of figuring out whether a student has mastered these professionalism
requirements falls to the university’s Committee on Students. Assembled from the university’s
faculty and administrators, the Committee “conducts detailed reviews” of a student’s exam
scores, clinical performance, and “professional attitudes and behavior.” Id. at 1–2, PageID
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#160–61. A student cannot receive a degree without the Committee’s approval, good grades
notwithstanding.
Amir Al-Dabagh enrolled at Case Western’s medical school in 2009. He did well
academically, as exhibited by recommendation letters praising his “academic excellence” in
2011 and 2013, R. 10-5 at 1, PageID #345; see R. 10-6 at 1, PageID #347. He even published
several articles and won a special award for “Honors with Distinction in Research.” R. 2-7 at 1,
PageID #159.
Professionalism was another matter. His troubles began during his first semester. All
first-year medical students must participate in discussion sessions and arrive on time to each of
them. Al-Dabagh came late to almost thirty percent of the meetings, holding up the class as a
result. According to his instructor, he asked not to be marked late each time. According to his
own testimony, he asked only once, and only then because the admitted student he was hosting
was also running late. But he does not deny the tardiness or its frequency. And in his
instructor’s judgment, quite reasonably, “[a]sking [a faculty member] to lie about attendance” is
“a more serious breach of professionalism[] than tardiness itself.” R. 12-3 at 3, PageID #375.
The problems did not stop there. In 2013, two female students accused Al-Dabagh of
behaving inappropriately at a formal dance called the Hippo Ball—short (we presume) for
Hippocrates. One said he propositioned her for sex, “grab[bed her] hand and trie[d] to pull [her]
towards the dance floor,” and told her that, “[I]f you don’t dance with me, I’m gonna embarrass
you until you do.” R. 12-1 at 2, PageID #368. The other said she was walking across the room
when she “felt someone grab [her] butt.” Id. at 4, PageID #370. When she turned around, she
saw Al-Dabagh—at which point he and her boyfriend nearly came to blows. Later that night,
according to a police incident report, Al-Dabagh jumped out of a moving taxi after attempting to
stiff its driver out of a twenty-dollar fare. Al-Dabagh recalls the night differently. He never
harassed anyone, never tried to welch on the driver, and fell out of the cab when “someone
assaulted” him. R. 2-2 at 2, PageID #128. Whatever happened, the night’s events sparked his
first run-in with the Committee, which forced him to undergo “an intervention on
professionalism” and threatened him with “dismissal” if “further issues” arose. R. 15-10 at 2,
PageID #598.
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Further issues arose. Later that year, Al-Dabagh received a stinging evaluation about his
performance in an internal medicine internship. Nurses and hospital staffers “consistently
complained about his demeanor”; a patient’s family once “kicked him out of the room”; and he
sometimes gave patient-status presentations without first preparing. R. 12-5 at 2, PageID #379.
Al-Dabagh by contrast asserts that the negative comments stemmed from his “critical . . .
attitude” toward one of his supervisors—an account confirmed by another evaluator. R. 2-2 at 3,
PageID #129; R. 2-11 at 1–2, PageID #165–66. But he does not dispute that the Committee
“serious[ly] consider[ed]” dismissing him in response. R. 15-3 at 5, PageID #545. It opted for
less severe but still drastic measures, requiring him to repeat the internship and enrolling him in
“gender specific training.” R. 2-12 at 1, PageID #167. It also added an addendum to his letter of
recommendation for residency programs, the existence of which a faculty supporter described as
“very permanent[ly] . . . damaging” and “too heavy a punishment.” R. 2-11 at 1, PageID #165.
The Committee had not written such an addendum in at least twenty-five years. When Al-
Dabagh appealed, the Committee reaffirmed its decision, citing “a pattern of unprofessionalism
with regard to communication and personal conduct.” R. 12-8 at 2, PageID #385.
Matters came to a head in April 2014, when the university received word that North
Carolina had convicted Al-Dabagh for driving while intoxicated. Al-Dabagh insists that he was
not in fact drunk. He swerved to miss a deer, he says, and hit a utility pole instead. The
university by this point had already invited Al-Dabagh to graduate. No matter: The Committee
convened an emergency session, unanimously refused to certify him for graduation, and
dismissed him from the university. After he appealed, the Committee agreed to lighten its
punishment, offering to let him withdraw from the university in writing—freeing him to apply to
other programs without having to explain a damaging official dismissal.
Al-Dabagh did not accept the Committee’s offer. Instead, he sued the university in
federal district court, alleging that it breached its state-law duties of good faith and fair dealing
when it declined to award him a degree. The court agreed, ordering the university “to issue a
diploma to [Al-Dabagh] as having satisfied the requirements to become a doctor of medicine and
to list [him] as having graduated in whatever ways are customary for the school.” R. 19 at 1.
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The university appeals. Reviewing the district court’s factfinding for clear error and its legal
conclusions anew, we reverse.
To start, we must smooth out a procedural wrinkle. After losing in the district court,
Case Western did not move for a stay. Instead, it complied with the injunction and gave Al-
Dabagh a degree. Thanks to its decision, Al-Dabagh is now a practicing resident. Doesn’t that
moot the case? No, because the university will revoke that degree if it wins. See Motion to
Expedite Appeal, Al-Dabagh v. Case W. Reserve Univ., No. 14-3551. And an appeal remains
alive if the effects or benefits of compliance can be undone. Charles Alan Wright et al., 13B
Federal Practice and Procedure § 3533.2.2 (3d ed. 2014); cf. Carachuri-Rosendo v. Holder, 560
U.S. 563, 573 n.8 (2010). We therefore have jurisdiction to move on.
Ohio treats the relationship between a university and its students as “contractual in
nature.” Behrend v. State, 379 N.E.2d 617, 620 (Ohio Ct. App. 1977). Case Western’s student
handbook supplies the contract’s terms, as the parties agree, and makes clear that the only thing
standing between Al-Dabagh and a diploma is the Committee on Students’s finding that he lacks
professionalism. Unhappily for Al-Dabagh, that is an academic judgment. And we can no more
substitute our personal views for the Committee’s when it comes to an academic judgment than
the Committee can substitute its views for ours when it comes to a judicial decision. Ohio law
allows a court to overturn such judgments only if they are “arbitrary and capricious,” regardless
of “whether the court would have decided . . . matter[s] differently.” Bleicher v. Univ. of
Cincinnati Coll. of Med., 604 N.E.2d 783, 788 (Ohio Ct. App. 1992). Federal Due Process law
comes to the same end. A court must “show great respect for the faculty’s professional
judgment” and may not “override” that judgment “unless it is such a substantial departure from
accepted academic norms as to demonstrate that the . . . committee responsible did not actually
exercise professional judgment.” Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).
Al-Dabagh’s dismissal on professionalism grounds amounts to a deference-receiving
academic judgment for several reasons. The student handbook—the governing contract—says
professionalism is part of Case Western’s academic curriculum at least four times. Judges are
“ill equipped” to second-guess the University’s curricular choices. Doherty v. S. Coll. of
Optometry, 862 F.2d 570, 576 (6th Cir. 1988). The Ohio Supreme Court indeed has deferred to a
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similar form of academic judgment by this same institution in the past. In a case with greater
equities than this one, the Court approved the medical school’s refusal to admit a gifted blind
applicant because its goal was not to train “specialized” doctors—she wished to be a
psychiatrist—but generalist ones capable of “function[ing] in a broad variety of clinical
situations.” Ohio Civil Rights Comm’n v. Case W. Reserve Univ., 666 N.E.2d 1376, 1387 (Ohio
1996).
Nor do we have any reason to doubt the propriety of this curricular choice.
Professionalism has been a part of the doctor’s role since at least ancient Greece. The original
Hippocratic Oath required adherents to “refrain . . . from acts of an amorous nature” in
“[w]hatsoever house [they] may enter,” “whatever may be the rank of those whom it may be
[their] duty to cure.” 3 The London Medical Repository 258 (James Copland ed., 1825). It is
entirely reasonable to assess the presence of professionalism early. For once a medical student
graduates, we must wait for a violation before we may punish the absence of it. See Pons v.
Ohio State Med. Bd., 614 N.E.2d 748 (Ohio 1993) (affirming a medical board’s decision to
suspend a doctor after he had sex with an emotionally vulnerable patient). Cases defining
“academic decisions” in the Due Process context confirm the point. The United States Supreme
Court has even deemed “academic” a school’s decision to dismiss a student who “lacked a
critical concern for personal hygiene.” Horowitz v. Bd. of Curators of Univ. of Mo., 435 U.S. 78,
81 (1978).
We repeatedly have emphasized that “academic evaluations” may permissibly extend
beyond “raw grades [and] other objective criteria.” Ku v. Tennessee, 322 F.3d 431, 436 (6th Cir.
2003); see Yoder v. Univ. of Louisville, 526 F. App’x 537, 549–50 (6th Cir. 2013). Other circuits
have come to the same conclusion. Dismissing a medical student for lack of professionalism is
“academic,” says one. Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 463 (4th Cir.
2012). Refusing to approve a Ph.D. thesis because its acknowledgement section was
unprofessional is “academic,” says another. Brown v. Li, 308 F.3d 939, 943, 952 (9th Cir. 2002).
Dismissing a student for “non-cognitive” problems like “sleeping in” is “academic,” says still
another. Richmond v. Fowlkes, 228 F.3d 854, 856, 858 (8th Cir. 2000). And so on. See Harris
v. Blake, 798 F.2d 419, 423 (10th Cir. 1986) (dismissing a student for failing to attend practical
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class sessions is “academic”); Perez v. Tex. A & M Univ. at Corpus Christi, No. 14-40081, 2014
WL 5510955, *4 (5th Cir. Nov. 3, 2014) (dismissing a student for tardiness is “academic”).
Whether we take our cue from Case Western’s curriculum, the student handbook contract
between the student and university, the Supreme Court, the Ohio cases, our own cases, or cases
from other circuits, the conclusion is the same: The Committee’s professionalism determination
is an academic judgment. That conclusion all but resolves this case. We may overturn the
Committee only if it “substantial[ly] depart[ed] from accepted academic norms” when it refused
to approve Al-Dabagh for graduation. Ewing, 474 U.S. at 225. And given Al-Dabagh’s track
record—one member of the Committee does not recall encountering another student with Al-
Dabagh’s “repeated professionalism issues” in his quarter century of experience, R. 15-5 at 3,
PageID #560—we cannot see how it did.
To the contrary, Al-Dabagh insists: The Committee’s decision was a “punitive
disciplinary measure” that had nothing to do with academics. Appellee’s Br. at 27. In support,
he points to the handbook’s statement that the Committee “acts on behalf of the Faculty of
Medicine in non-academic disciplinary matters involving medical students.” R. 15-1 at 60,
PageID #501. Doesn’t this show that its action was non-academic in nature? No, for two
reasons. First, his argument overlooks the reality that the university’s disciplinary procedures
are parallel to, not exclusive of, the Committee’s role in approving students for graduation. That
same handbook section makes clear that “[u]nprofessional activities may also be subject to a
formal university disciplinary action.” Id. at 59, PageID #500. And the Committee’s refusal to
approve Al-Dabagh for graduation took place outside the disciplinary process. Second, his
argument fails to wrestle with the prominent place of professionalism in the university’s
academic curriculum—which itself is an academic decision courts may not lightly disturb.
Even if professionalism is an academic criterion, Al-Dabagh persists that the university
defined it too broadly. As he sees it, the only professional lapses that matter are the ones linked
to academic performance. That is not how we see it or for that matter how the medical school
sees it. That many professionalism-related cases involve classroom incidents does not establish
that only classroom incidents are relevant to the professionalism inquiry, and Al-Dabagh has
identified no case holding that the concept must be defined so narrowly. An analogy illustrates
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the point. Our own standards indicate that professionalism does not end at the courtroom door.
E.g., Supreme Court Rules for the Government of the Bar of Ohio, Rule I, § 11(D)(3)(b), (k)
(instructing Ohio’s bar admissions committee to consider an applicant’s drug and alcohol
problems and his “[n]eglect of financial responsibilities” when assessing his character and
fitness). Why should hospitals operate any differently? As for the danger that an expansive
view of professionalism might forgive, or provide a cloak for, arbitrary or discriminatory
behavior, we see no such problem here. Nothing in the record suggests that the university had
impermissible motives or acted in bad faith in this instance. And nothing in our deferential
standard prevents us from invalidating genuinely objectionable actions when they occur.
Al-Dabagh next claims that the university’s residency-recommendation letters
demonstrate that his missteps were not a big deal. Had he really been as unprofessional as the
university now makes him out to be, he asks, why did it praise his professionalism when he
applied to residency programs? At one level, we share Al-Dabagh’s puzzlement. Why did the
university omit any mention of his professionalism-related struggles from its recommendation?
Its explanation—that it tries “to support its students as much as possible,” R. 18 at 18–19,
PageID #656–57—is unconvincing. Even so, the university sent the recommendation before Al-
Dabagh failed his internship. It was that failure that first led the Committee to contemplate Al-
Dabagh’s dismissal. And it was that failure that prompted the university to provide an addendum
to its recommendation that referenced Al-Dabagh’s problems.
Al-Dabagh, last of all, claims that the Committee faulted him for things that didn’t
happen (for instance, the sexual harassment incidents at the Hippo Ball) and disregarded his
explanations for the things that did (for instance, his poor internship performance and his
driving-while-intoxicated conviction). He invites us to decide for ourselves whether he behaved
in a sufficiently professional way to merit a degree. That, as we have made clear, goes beyond
our job description. It was neither arbitrary nor capricious for the Committee to credit other
accounts above Al-Dabagh’s. And if a dismissal from medical school for poor hygiene and
untimeliness falls within the realm of reason, Horowitz, 435 U.S. at 91 n.6, it should go without
saying that Al-Dabagh’s dismissal falls within the realm of reason too.
For these reasons, we reverse.