University of Texas at Austin President Jay Hartzell v. S.O.

Supreme Court of Texas
══════════
No. 20-0811
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University of Texas at Austin President Jay Hartzell, et al.,
Petitioners,
v.
S.O.,
Respondent
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On Petition for Review from the
Court of Appeals for the Third District of Texas
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~ consolidated for oral argument with ~
══════════
No. 20-0812
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Texas State University President Denise M. Trauth, et al.,
Petitioners,
v.
K.E.,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
Argued September 20, 2022
JUSTICE LEHRMANN delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Busby, Justice Bland, Justice Huddle, and
Justice Young joined.
JUSTICE BOYD filed an opinion concurring in the judgment.
JUSTICE BLACKLOCK filed a dissenting opinion, in which Justice
Devine joined.
The principal issue in these two ultra vires suits, which we
consolidated for oral argument, is whether state university officials have
the statutory authority to revoke a former student’s degree upon
concluding that the former student engaged in academic misconduct in
pursuit of that degree. The same court of appeals held in both suits that
no such authority exists and affirmed the trial courts’ denials of the
university officials’ jurisdictional pleas as to the pertinent claims. We
disagree and reverse those portions of the court’s judgments. Because
no other claims remain pending in 20-0811, we dismiss that case for lack
of jurisdiction. However, we agree with the court of appeals that the
due-process claims in 20-0812 may continue. Accordingly, we affirm
that judgment in part and remand the case to the trial court for further
proceedings.
I. Background
A. 20-0812
K.E. is a former graduate student at Texas State University. She
enrolled in the doctoral program of the University’s biology department
in 2006. Her dissertation involved analyzing data collected in the field
2
using a leaf gas analyzer called a LiCor instrument. K.E. presented and
successfully defended her dissertation, and in May 2011 the University
conferred on K.E. a Doctor of Philosophy (Ph.D.) with a major in aquatic
resources.
After K.E. graduated, while she and her doctoral advisor were
collaborating on a journal article, the advisor found inconsistencies in
K.E.’s dissertation research data that led the advisor to believe K.E. had
manipulated the data. Unsatisfied with K.E.’s explanations for both the
discrepancies and some missing original LiCor data files, the advisor
notified Dr. Michael Blanda, Assistant Vice President for Research and
Federal Relations, of her suspicion that K.E. had falsified the data and
the basis for that suspicion. K.E. submitted a response to Dr. Blanda
through her attorney. Based on those submissions, the University
commenced an investigation into the advisor’s allegations of academic
misconduct. That investigation proceeded as follows:
• Dr. Blanda appointed a three-member Committee of Inquiry.
• The committee held a meeting with K.E., whose attorney and
forensic expert were present. K.E. submitted additional
documentation to the committee after the meeting.
• The committee submitted a detailed report recommending a
full investigation, and K.E. submitted a written response to
the report.
• Based on those submissions, the University formally charged
K.E. with “misconduct in research and scholarship” while a
student at the University.
• K.E. was sent written notice of the formal charges, the
procedures to be followed by the three-member Investigating
Committee, and K.E.’s right to appeal.
• The Investigating Committee conducted a two-day hearing
with a court reporter present. K.E. was represented by
3
counsel, called witnesses, cross-examined witnesses, and
submitted written documents for the committee’s
consideration.
• The Investigating Committee found by a preponderance of the
evidence that K.E. committed misconduct in research and
scholarship by falsifying and fabricating data in her
dissertation, and it recommended that the University revoke
her Ph.D.
• K.E. appealed the findings to University President Denise M.
Trauth, who affirmed the decision and recommended to the
Texas State University System Board of Regents that it revoke
K.E.’s degree at its quarterly meeting.
• K.E. submitted a written dispute of the recommendation to the
Board, and at her attorney’s request the Board heard the
appeal in executive session.
• The Board affirmed Trauth’s recommendation to revoke K.E.’s
degree.
Following the Board’s action, Trauth notified K.E. that a notation
of that action had been placed on her transcript, and Trauth requested
that K.E. cease representing herself as holding a Ph.D. from the
University and return her doctoral diploma to the registrar. K.E. then
sued Trauth, Blanda, the registrar, and the members of the Board of
Regents in their official capacities. 1 In her live pleading, she asserted
ultra vires claims against the University officials based on their alleged
lack of authority to revoke her degree. She further claimed that the
process the University officials employed to revoke the degree did not
1 K.E. sued several other defendants that she later nonsuited.
4
afford her due course of law under the Texas Constitution. 2 She sought
declaratory and injunctive relief, including an order requiring the
University officials to reinstate her degree. 3
The University officials filed a plea to the jurisdiction on
sovereign-immunity grounds, arguing that they had legal authority to
revoke K.E.’s degree for cause and that K.E. failed to plead a viable
constitutional claim in light of the process she was afforded. In
response, K.E. asserted that Texas law does not authorize revocation of
her degree “outside of a court of competent jurisdiction” and that the
University officials must seek contractual remedies in court “because a
Ph.D. is a protected property and liberty interest.” She alternatively
argued that, even if the University officials had authority to revoke her
degree, she was subjected to “fundamentally flawed proceedings” that
2 Specifically, K.E. alleged that: the degree-revocation process was
“conducted in an ad hoc manner” that did not give her adequate notice as to
how the proceedings against her would be handled; two of the three members
of the Investigating Committee were not impartial, or at least their presence
created the appearance of impropriety; the University “failed to preserve
forensically sound evidence and have in place a coherent system to centralize
the data that was at issue in this case”; the burden of proof—preponderance of
the evidence—was too low; the hearing included no criteria for the
admissibility of evidence; and the appellate review process was insufficient.
3 In addition to declarations that the University officials lacked
authority to revoke her degree and violated her due-process rights, K.E. sought
declarations that: the 2006 University Catalog in effect when K.E. was a
graduate student constitutes a binding contract with the University; the
provisions of that catalog governing disciplinary procedures are
unconstitutional; and the University may not enforce any rules amended,
modified, or adopted after she graduated. The court of appeals did not discuss
these specific requests, nor do the parties independently address them in this
Court. Accordingly, neither will we.
5
denied her due course of law. The trial court denied the plea, and the
University officials appealed. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(8) (authorizing an interlocutory appeal from an order that
grants or denies a governmental unit’s plea to the jurisdiction).
A divided court of appeals affirmed, holding that K.E.’s pleadings
alleged an ultra vires claim against the University officials that was not
barred by sovereign immunity. 613 S.W.3d 222, 232 (Tex. App.—Austin
2020). Examining the statutes governing the Texas State University
System, the court of appeals held that they neither expressly nor
impliedly authorize revocation of a student’s degree after it has been
conferred. Id. at 228–31. 4 The court also rejected the University
officials’ argument that K.E. sought only retrospective relief, which
would foreclose an otherwise proper ultra vires claim. Id. at 231–32.
Justice Kelly dissented, opining that the Board “has the authority to
revoke a former student’s degree for academic dishonesty so long as, as
relevant here, it affords due process under the United States
Constitution and due course of law under the Texas Constitution.” Id.
at 233 (Kelly, J., dissenting).
B. 20-0811
S.O. enrolled in The University of Texas in 2003 as a graduate
student working toward a Ph.D. in chemistry. Her dissertation research
involved efforts to develop multistep synthetic routes to natural
products, including lundurine products. S.O. presented and successfully
4The court of appeals did not address the University officials’ argument
that K.E. failed to plead a valid constitutional claim.
6
defended her dissertation, and in May 2008 the University conferred on
S.O. a Ph.D.
In 2012, S.O.’s graduate advisor, Professor Stephen Martin,
brought a complaint against her for academic misconduct relating to
some of the data reported in her dissertation. 5 The University formed a
committee to investigate the allegations, and the committee concluded
2–1 that S.O. engaged in scientific misconduct. The committee’s
findings were referred to S.O.’s dissertation committee to, “at a
minimum, ensure that the dissertation reflects the actual results of her
research.” With one member declining to participate, the dissertation
committee determined that S.O.’s degree was improperly awarded and
should be revoked. According to S.O., she “was not accorded notice of
the cause or causes presented to the dissertation committee,” “was not
provided with the materials that the dissertation committee considered
in reaching its decision,” and “was not provided the opportunity to be
heard by the dissertation committee to address and defend the integrity
of her dissertation.”
In February 2014, S.O. was informed of the decision to revoke her
degree and immediately filed suit, alleging that the University’s actions
violated her constitutional rights and seeking a temporary restraining
5 According to S.O.’s petition, in 2011, Martin submitted a journal
article for publication that used S.O.’s research as well as a post-doctoral
researcher’s related work; Martin was listed as lead author, and S.O. and the
post-doc were listed as co-authors. Another graduate student later conducted
experiments indicating that some of the reported data in the article were
inaccurate, ultimately leading Martin to retract the article and make the
complaint against S.O.
7
order to prevent any disciplinary action against her. Before the TRO
hearing, the parties entered into a Rule 11 agreement specifying that
the University would restore S.O.’s degree while the parties discussed
“additional process.” Shortly thereafter, the University notified S.O.
that it was initiating the student-discipline process to address the
investigative committee’s findings and the dissertation committee’s
subsequent recommendation. Included with the notice was a copy of the
University’s rules pertaining to student conduct and discipline. The
University then filed a plea to the jurisdiction on mootness grounds, the
trial court granted the plea, and the court of appeals affirmed. [S.O.] v.
Univ. of Tex. at Austin, No. 03-14-00299-CV, 2015 WL 5666200, at *5
(Tex. App.—Austin Sept. 23, 2015, no pet.).
The University subsequently notified S.O. that a disciplinary
hearing was scheduled for January 29, 2016. The notice stated that S.O.
was charged with violating sections of the Board of Regents’ and the
University’s Rules and Regulations governing academic dishonesty
based on allegations that she “falsified data and modified Nuclear
Magnetic Resonance (NMR) spectra” by “underreporting and
misreporting NMR signals for three compounds . . . in [her] doctoral
dissertation.” The information contained in the notice included:
• an advisory that S.O. was entitled to a private hearing, to
appear in person and have an advisor present, to challenge the
persons designated to hear the charges, to know the identity
of adverse witnesses and to cross-examine those witnesses, to
present witnesses and evidence on her own behalf, and to
appeal under Section 11-804 of the University’s Institutional
Rules;
8
• the identity of the members of the Student Conduct Board
Panel designated to hear the charges and S.O.’s right to
challenge any of the members for lack of fairness or objectivity;
• the identity of the witnesses the University may call to testify;
• a list of the documentary evidence the University may furnish
in the proceeding; and
• the deadline for S.O. to furnish the Dean of Students with a
list of witnesses who would testify on her behalf and copies of
evidence she would offer at the hearing.
After the hearing was rescheduled for March 4, 2016, S.O. filed
this suit against several University officials for declaratory and
injunctive relief. 6 In pertinent part, S.O. sought declarations that the
officials “are not authorized to revoke a degree” and that the University’s
rules governing disciplinary proceedings do not satisfy due process. She
also sought an injunction preventing the University from proceeding
with the disciplinary hearing. The University officials responded with
a plea to the jurisdiction. After a combined hearing, the trial court
entered an agreed order providing that the disciplinary hearing would
be held before a single hearing officer and that “Defendants will abate
any formal action resulting from a decision in the disciplinary process
for thirty (30) days to provide Plaintiff an opportunity to request
additional injunctive relief, should she choose to do so, at the conclusion
of the internal appeal of the disciplinary process.” The court expressly
reserved ruling on the plea to the jurisdiction.
6 The named defendants in S.O.’s live pleading, all sued in their official
capacities, are the President of the University, the University Registrar, the
Dean of Students, and the members of the UT System’s Board of Regents.
9
The disciplinary hearing was rescheduled several times but
ultimately never commenced. As a result, in October 2016 the trial court
granted the University officials’ plea to the jurisdiction on the ground
that S.O.’s claims were not ripe for review. The court of appeals reversed
in part, holding that a justiciable controversy exists with respect to
S.O.’s claim for a declaratory judgment that the University officials are
acting ultra vires because they lack authority to revoke her degree. S.O.
v. Fenves, No. 03-16-00726-CV, 2017 WL 2628072, at *4 (Tex. App.—
Austin June 15, 2017, no pet.).
On remand, S.O. filed an amended petition seeking several
declarations, including declarations that the University officials lack
express or implied authority to revoke a former student’s degree. 7 She
also filed a motion for summary judgment, arguing that she was entitled
to the requested declaratory relief as a matter of law. The University
officials responded with a second plea to the jurisdiction, arguing that
they “have implied authority to revoke a diploma that a student obtains
in violation of their Institutional Rules, as long as [they] afford adequate
due process.” The officials contended that S.O.’s other claims for
declaratory relief were also barred by sovereign immunity.
7 S.O. also requested declarations that S.O. has a constitutionally
protected property and liberty interest in her Ph.D.; the 2003 University
Catalog in effect when S.O. was a graduate student constitutes a binding
contract with the University; enforcement against S.O. of any rules amended,
modified, or adopted after she graduated would be unconstitutional; and the
2003 University Catalog as written for disciplinary proceedings is
unconstitutional because it does not satisfy due process or provide S.O. equal
protection under the law.
10
The trial court denied the plea to the jurisdiction “as to [S.O.’s]
ultra vires claim regarding whether [the officials] are acting without
authority to revoke a degree” but granted the plea as to all other claims
for relief. The trial court also granted S.O.’s motion for summary
judgment as to the requests for a declaratory judgment that the officials
lack express and implied authority to revoke her degree. Finally, the
trial court denied S.O.’s motion for attorney’s fees.
As in 20-0812, the same divided court of appeals affirmed, holding
that S.O. asserted a cognizable ultra vires claim against the University
officials—specifically, that they acted without legal authority by
instituting an internal proceeding to decide whether to revoke her
degree—that is not barred by sovereign immunity. 613 S.W.3d 244, 256
(Tex. App.—Austin 2020). Examining the statutes governing The
University of Texas System, the court of appeals held that they neither
expressly nor impliedly authorize revocation of a student’s degree after
it has been conferred. Id. at 253–56. The court also rejected the
University officials’ contention that the ultra vires claims are not ripe
unless and until S.O.’s degree is revoked. Id. at 256–58. 8 Justice Kelly
8 S.O. argued on cross-appeal that the trial court abused its discretion
in failing to award her attorney’s fees and erred in denying her motion for
summary judgment on the two requests for declaratory relief involving
whether the 2003 University Catalog was a binding contract with the
University and whether the University could enforce against S.O. any
disciplinary rules enacted or amended after her graduation. The court of
appeals overruled both issues, 613 S.W.3d at 259–60, and S.O. does not seek
review of those rulings in this Court. As to the trial court’s grant of the
University officials’ plea to the jurisdiction on S.O.’s constitutional claims, S.O.
did not challenge those portions of the trial court’s judgment in the court of
11
again dissented, opining that the System’s Board of Regents “has the
authority to revoke a former student’s degree for academic dishonesty
so long as, as relevant here, it affords due process under the United
States Constitution and due course of law under the Texas
Constitution.” Id. at 260–61 (Kelly, J., dissenting). The dissent also
agreed with the University officials that S.O.’s claims regarding the
officials’ authority to revoke her degree are unripe. Id. at 261.
We granted the University officials’ petitions for review in both
20-0811 and 20-0812 and consolidated the cases for oral argument.
II. Ultra Vires Framework
Although sovereign immunity generally bars lawsuits against
state officials acting in their official capacities, the doctrine does not
apply to suits seeking to require such officials to comply with the law.
City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). To
maintain an ultra vires suit, the claimant must “allege, and ultimately
prove, that the officer acted without legal authority or failed to perform
a purely ministerial act.” Id. On meeting that burden, the claimant is
entitled to “prospective injunctive relief, as measured from the date of
injunction.” Id. at 376. Retrospective relief, however, remains barred
by immunity absent a legislative waiver. Id. at 376–77. Whether a
claimant has alleged a valid ultra vires claim is a question of law that
we review de novo. Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927,
929 (Tex. 2010).
appeals, which recognized that the constitutional claims were not before it. Id.at 252 n.5.
12
III. Statutory Authority
The University officials, as officials of the Texas State University
System and Texas State University (20-0812) and of The University of
Texas System and The University of Texas at Austin (20-0811), derive
their “legal authority” from the statutes establishing and governing the
Systems and their component institutions. The Systems in turn may
exercise “powers that the Texas Legislature has expressly conferred
upon [them] and those implied powers that are reasonably necessary to
carry out [their] statutory duties.” Tex. State Bd. of Exam’rs of Marriage
& Fam. Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 33 (Tex. 2017)
(generally describing the scope of a state administrative agency’s
authority). Relatedly, they may adopt rules that “are authorized by and
consistent with [their] statutory authority.” Id. (citations omitted).
However, they may not “erect and exercise . . . a new and additional
power or one that contradicts the statute, no matter that the new power
is viewed as being expedient for administrative purposes.” Pub. Util.
Comm’n of Tex. v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex. 1995).
A. Governing Statutes and Board Rules
The Texas Education Code grants expansive authority to public
institutions of higher education and their governing boards to manage
their affairs and meet their educational obligations. Generally
speaking, a governing board “is expected to preserve institutional
independence,” “shall enhance the public image of each institution
under its governance,” and “shall nurture each institution under its
governance to the end that each institution achieves its full potential
within its role and mission.” TEX. EDUC. CODE § 51.352(a)(1), (2), (4).
13
Further, “each institution of higher education has the general
responsibility to serve the public and, within the institution’s role and
mission to,” among other things, “provide for scientific, engineering,
medical, and other academic research;” “protect intellectual exploration
and academic freedom;” and “strive for intellectual excellence.” Id.
§ 51.354(4)–(6).
Other statutes apply to specific university systems and their
respective component institutions. Relevant here, the Education Code
vests the “organization, control, and management” of the Texas State
University System in a nine-member Board of Regents. Id. § 95.01. The
Texas State Board “is responsible for the general control and
management of the universities in the system and may erect, equip, and
repair buildings; purchase libraries, furniture, apparatus, fuel, and
other necessary supplies; employ and discharge . . . employees; fix the
salaries of the persons employed; and perform such other acts as in the
judgment of the board contribute to the development of the universities
in the system or the welfare of their students.” Id. § 95.21(a). In
carrying out that responsibility, the Board may “promulgate and enforce
such rules, regulations, and orders for the operation, control, and
management of the university system and its institutions as the board
may deem either necessary or desirable.” Id. § 95.21(b). Among other
powers, the Board “may determine the conditions on which students
may be admitted to the universities, the grades of certificates issued, the
conditions for the award of certificates and diplomas, and the authority
by which certificates and diplomas are signed.” Id. § 95.24.
14
Similarly, the Education Code vests the government of the UT
System in a nine-member Board of Regents. Id. § 65.11. The UT Board
“is authorized and directed to govern, operate, support, and maintain
each of the [System’s] component institutions”; “to prescribe for each of
the component institutions courses and programs leading to such
degrees as are customarily offered in outstanding American
universities”; and “to award all such degrees.” Id. § 65.31(a)–(b). In
carrying out those responsibilities, the Board may “promulgate and
enforce such other rules and regulations for the operation, control, and
management of the university system and the component institutions
thereof as the board may deem either necessary or desirable.” Id.
§ 65.31(c).
Exercising their authority to delegate a power or duty to a
designated agent, id. §§ 65.31(g), 95.21(b), the UT and Texas State
Boards adopted rules relevant to these proceedings. The Texas State
System’s rules delegate to the president of each component institution
“authority to grant degrees, certificates and diplomas upon the
recommendation of the respective faculty, deans, and provosts.” Tex.
State Univ. Sys., Rules and Regulations, ch. 1, ¶ 2.41 (amended 2019).
The rules also expressly govern degree revocation in cases of “fraud,
mistake, or academic dishonesty”:
Revocation. The Board hereby provides notice that the
granting of any degrees, certificates or diplomas is
specifically conditioned upon the truth of representations
made by the student in the admission process and also
upon honesty in completion of his or her academic work.
When the Board determines that a degree, certificate,
diploma, or admission to the institution and/or the
academic program was obtained through fraud, mistake, or
15
academic dishonesty, the Board may revoke the degree,
certificate, or diploma, provided the Component has
afforded the degree, certificate, or diploma recipient due
process of law.
Id. ¶ 2.42 (amended 2019). 9
The UT System’s rules direct each of the System’s component
institutions to adopt rules and regulations governing student conduct
and discipline in accordance with a model policy. See Univ. of Tex. Sys.,
Rules and Regulations of the Board of Regents, Rule 50101: Student
Conduct and Discipline (amended 2017). The University adopted such
rules, which include detailed provisions governing student disciplinary
proceedings. One of the authorized disciplinary sanctions is “revocation
of degree or withdrawal of diploma,” which “may be imposed when the
violation involves academic dishonesty or otherwise calls into question
the integrity of the work required for the degree.” 10
B. Analysis
In concluding that the above-described statutes do not authorize
the Boards to revoke a former student’s degree, the court of appeals first
held in K.E. that Section 95.21’s broad grant of authority with respect
to “the operation, control, and management” of the Texas State System
and its component institutions, construed in and limited by its context,
9 At the time of the administrative proceedings against K.E., the
pertinent rules were numbered 2.31 and 2.32, but they were substantively
identical to the rules currently in effect.
10The rules in effect when S.O. enrolled in 2003 and those in effect when
the investigation commenced in 2013 contain essentially identical language
with respect to degree revocation.
16
concerns “the day to day operations of the university and the
management of its personnel” and thus does not encompass degree-
revocation power. 613 S.W.3d at 228–29. Similarly, in S.O., the court
of appeals noted that the statute authorizing the UT Board to adopt
rules for “the operation, control, and management” of the System and
its component institutions “says nothing about the board’s authority to
discipline a former student.” 613 S.W.3d at 253–54. In both cases, the
court further rejected the argument that the power to revoke a degree
may be implied from the express power to award one, holding that the
former is not necessary to accomplish the latter. Id. at 255–56; 613
S.W.3d at 230. In so holding, the court of appeals in K.E. found
persuasive that “the power claimed to be implied necessarily
raises . . . substantial constitutional questions regarding due process.”
613 S.W.3d at 230.
As an initial matter, we find it helpful to make two clarifying
points. First, the court of appeals, as well as K.E. and S.O., conflates to
some extent what we view as two independent inquiries. The first is the
issue before us—whether the Boards have statutory authority to revoke
a previously conferred degree. If so, the second is whether the Boards
must afford the former student due process in doing so. But the answer
to the latter inquiry has no bearing on the answer to the former. 11
Indeed, there is no real dispute that K.E. and S.O. were entitled to due
11The dissent similarly focuses on a university degree as intangible
property belonging to the recipient. Post at 6–7 (Blacklock, J., dissenting).
That is certainly relevant to the due-process inquiry, but not the statutory-
authority inquiry.
17
process under our precedent. 12 In University of Texas Medical School v.
Than, we held that the stigma associated with a medical student’s
dismissal for academic dishonesty implicated a protected liberty interest
“that must be afforded procedural due process.” 901 S.W.2d 926, 930
(Tex. 1995). 13 A University graduate confronting revocation of her
degree for academic misconduct faces similar reputational harm and
negative effects on her ability to practice her chosen profession. And
although K.E. claims the University’s disciplinary procedures failed to
satisfy due process, she also asserts the officials lacked authority to
revoke her degree regardless of how much process she received. In sum,
whether a former student has a constitutionally protected interest in
her degree is relevant not to the existence of a university’s statutory
authority to revoke that degree but to whether the student was
presented sufficient notice and opportunity to be heard before that
authority was exercised. See id. at 931 (holding that, in light of all the
surrounding circumstances, the student’s due-course-of-law rights were
violated by his exclusion from a portion of the evidentiary proceedings
against him).
Second, although the effect of K.E.’s and S.O.’s status as former
students to whom the Universities had already conferred degrees—as
opposed to current students facing expulsion—is at the heart of the
12In addition, the Texas State Board rule addressing degree revocation
expressly requires due process.
13 By contrast, we have held that a graduate student’s dismissal from a
state university for academic reasons does not carry sufficient stigma to impair
a protected liberty interest under the Texas Constitution. Tex. S. Univ. v.
Villareal, 620 S.W.3d 899, 907 (Tex. 2021).
18
parties’ dispute, the University officials rely solely on events that
transpired while K.E. and S.O. were students in pursuit of their
respective degrees as the basis for revoking those degrees. The
University officials do not claim, and for good reason, that they may take
such action against K.E., S.O., or any other former student based on
conduct occurring after a degree is conferred. Instead, they argue that
they may rescind a degree upon determining that it was not earned—
and thus should not have been awarded—in the first place. We thus
consider only whether the University officials may revoke the degrees of
former students who are found to have engaged in academic misconduct
while enrolled at the Universities. We hold that they have authority to
do so.
As the parties agree, the statutes governing the Systems make no
express mention of degree revocation. But they do task the Texas State
Board with “the general control and management of the universities in
the system,” empower the Board to “perform such other acts as in the
judgment of the board contribute to the development of the universities
in the system or the welfare of their students,” and authorize the Board
to “determine . . . the conditions for the award of certificates and
diplomas.” TEX. EDUC. CODE §§ 95.21, .24. Similarly, the statutes
authorize the UT Board to “govern, operate, support, and maintain each
of the [System’s] component institutions”; to prescribe the courses and
programs leading to various degrees; and “to award all such degrees.”
Id. § 65.31(a)–(b). And each Board may “promulgate and enforce such
rules, regulations, and orders for the operation, control, and
management of the university system and its institutions as the board
19
may deem either necessary or desirable.” Id. § 95.21; see also id.
§ 65.31(c). The language of these provisions, like provisions discussing
the powers and duties of other public university systems’ governing
boards, is expansive and lacking in detail, leaving it to the systems and
component institutions to fill in the gaps. Cf. Pruett v. Harris Cnty. Bail
Bond Bd., 249 S.W.3d 447, 453 (Tex. 2008) (“When a statute expressly
authorizes an agency to regulate an industry, it implies the authority to
promulgate rules and regulations necessary to accomplish that
purpose.”). And as the dissenting justice in the court of appeals noted
in K.E., the “heart” of that broad power involves the University’s
authority to make academic decisions. 613 S.W.3d at 236 (Kelly, J.,
dissenting).
To that end, the University officials unquestionably and
undisputedly have authority under these provisions to enact
disciplinary rules and policies regarding academic misconduct and to
conclude, upon providing sufficient process, that students who have
engaged in such misconduct should be expelled because they do not meet
the requisite conditions for the award of a degree. See Than, 901 S.W.2d
at 929; Foley v. Benedict, 55 S.W.2d 805, 809 (Tex. [Comm’n Op.] 1932)
(“A student who is admitted to the University receives the privilege of
attending that institution subject to the reasonable rules and
regulations promulgated by the board of regents and existing at the time
of his entrance into the school.”). And the only difference between
expelling a current student for academic misconduct and revoking the
degree of a former student for the exact same academic misconduct is
one of timing. That distinction is immaterial to the issue presented and
20
erroneously hinges the university’s bare authority to address its
students’ academic misconduct on when that misconduct is discovered.
Indeed, if timing were as significant as K.E. and S.O. suggest, we
struggle to determine when a university passes the point of no return.
Is it at the graduation ceremony? When the diploma memorializing the
conferral of the degree is printed? When the last box is checked on an
administrative form indicating that all requirements have been
satisfied? When a doctoral student completes the defense of her
dissertation? A degree is not merely a piece of paper; it is a “university’s
certification to the world at large of the recipient’s educational
achievement and fulfillment of the institution’s standards.” Waliga v.
Bd. of Trs. of Kent State Univ., 488 N.E.2d 850, 852 (Ohio 1986); see also
Doe v. Salisbury Univ., 107 F. Supp. 3d 481, 492 (D. Md. 2015) (“When
a school confers credentials, the school places its imprimatur on a
student; degrees and credits are a school’s implicit endorsement of
someone’s academic qualifications and personal character, whether they
be a current or former student.”). Here, the Texas State University
officials concluded that K.E. engaged in academic misconduct in pursuit
of her degree, such that she did not in fact meet the necessary conditions
to be awarded that degree and thus is not entitled to a certification that
she did. Their authority to do so, like the authority of the UT officials
to make that determination as to S.O. depending on the outcome of the
proceedings, fits comfortably within the governing statutes. 14
14The University officials argue that the Board rules, which we have
held carry “the same force as an ‘enactment of legislature,’” confer authority
21
While precedent on the specific issue presented is nonexistent in
Texas and sparse elsewhere, courts applying similarly worded grants of
authority have uniformly determined that public universities have
degree-revocation power. 15 For example, in Waliga, the Ohio Supreme
Court considered whether Kent State University, through its board of
trustees, could “revoke improperly awarded degrees” in light of
universities’ statutory authority to “confer” degrees and “do all things
necessary for the proper maintenance and successful and continuous
operation of such universities.” 488 N.E.2d at 851–52. Holding that the
university could do so “where (1) good cause such as fraud, deceit, or
on the University to revoke a degree independently of the governing statutes.
Hall v. McRaven, 508 S.W.3d 232, 235 (Tex. 2017) (quoting Univ. of Hous. v.
Barth, 403 S.W.3d 851, 855 (Tex. 2013)). We disagree. The Board cannot by
rule grant a power to itself that is outside the authority conferred on the Board
by the Legislature.
15 The dissent finds it telling that the first published opinion specifically
addressing this issue was decided relatively recently, in 1986. See post at 14
(Blacklock, J., dissenting) (“1986 seems a strange starting point for judicial
analysis of the ‘traditional and time-honored role’ of the governing boards of
universities.”). Of course, courts had no reason to opine on whether
universities have degree-revocation power until lawsuits were filed alleging
that they do not. Other sources indicate that degree revocation by public
universities, based on conduct occurring while the recipient was a student but
not discovered until later, is nothing new. See Tex. Att’y Gen. Op. ORD-477,
at 3–5 (1987) (addressing requests by the UT System, the Texas A&M
University System, and Texas Tech University for an opinion on whether the
Open Records Act shielded the identity of individuals whose degrees had been
rescinded since January 1, 1977); Crook v. Baker, 813 F.2d 88, 91 & n.2 (6th
Cir. 1987) (expressing “surprise[] at the dearth of case law dealing with . . . the
question whether court action is necessary [to rescind the grant of a degree]”
and noting the university’s contention “that the record shows that the
University of Michigan and many other universities have in fact rescinded the
grant of degrees”).
22
error is shown, and (2) the degree-holder is afforded a fair hearing at
which he can present evidence and protect his interest,” the court
concluded that “[t]he power to confer degrees necessarily implies the
power to revoke degrees erroneously granted.” Id. at 852.
Other courts have followed suit. The United States District Court
for the Western District of Virginia, applying Virginia law, held that
“[b]ecause degree revocation is reasonably necessary to effectuate the
Board’s [express] power to confer degrees and to regulate student
discipline, that power must be implied, giving the Board the authority
to revoke a degree for good cause and after due process.” Goodreau v.
Rector & Visitors of Univ. of Va., 116 F. Supp. 2d 694, 703 (W.D. Va.
2000). The Supreme Court of North Dakota, applying a state
constitutional provision granting the State Board of Higher Education
“full authority to control and administer the State’s higher education
institutions,” explained that with such authority “comes the authority
to award academic degrees,” which in turn “naturally comes with the
implied authority to revoke an improperly awarded degree upon good
cause and a fair hearing.” Brown v. State ex rel. State Bd. of Higher
Educ., 711 N.W.2d 194, 198 (N.D. 2006). Courts applying New Mexico
law, Maryland law, Michigan law, and Tennessee law have reached
similar conclusions. See Hand v. Matchett, 957 F.2d 791, 794 (10th Cir.
1992) (applying New Mexico law) (holding that implicit in the New
Mexico State University Board of Regents’ power to confer degrees
“must be the authority to revoke degrees”); Doe, 107 F. Supp. 3d at 492(applying Maryland law) (“Schools hold an implied power to control
school records and to revoke credentials conferred upon
23
students . . . where such actions are in response to a former student’s
conduct that occurred during the student’s enrollment, and as long as
the school acts with good cause and after due process.”); Crook v. Baker,
813 F.2d 88, 91–92 (6th Cir. 1987) (applying Michigan law) (citing
Waliga and holding that the University of Michigan’s Board of Regents,
which has “general supervision” of the university under the Michigan
Constitution, has the power to rescind the grant of a degree); Faulkner
v. Univ. of Tenn., No. 01-A-01-9405-CH00237, 1994 WL 642765, at *5
(Tenn. Ct. App. Nov. 16, 1994).
The court of appeals here deemed these cases inapposite in light
of “jurisprudential differences in interpreting agency authority.” 613
S.W.3d at 230–31 (noting that under Ohio law, as stated in Waliga, a
power of a state agency may be implied from an express power “where it
is reasonably related to the duties of an agency”); 613 S.W.3d at 255–56
(same). We nevertheless find them persuasive for several reasons.
First, the court of appeals went a step too far in describing Texas
law regarding agency authority, concluding that a power may not be
implied unless in its absence an express grant of authority “will itself be
defeated.” 613 S.W.3d at 230; see also 613 S.W.3d at 255. We have never
endorsed such a standard; rather, as discussed, an agency has those
“implied powers that are reasonably necessary to carry out its statutory
duties.” Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists, 511
S.W.3d at 33. Further, the breadth of the constitutional and statutory
grants of power to universities is remarkably similar among the states
whose courts have addressed degree revocation. And those courts are
united in the conclusion, as well as the reasoning behind it, that the
24
power to revoke a degree for academic misconduct “naturally comes
from,” Brown, 711 N.W.2d at 198, is “necessarily implie[d by],” Waliga,
488 N.E.2d at 852, is “[i]mplicit in” and “a necessary corollary to,” Hand,
957 F.2d at 794–95, or is “reasonably necessary to effectuate” the
express power to grant one, Goodreau, 116 F. Supp. 2d at 703. 16
In the absence of supporting case law, K.E. and S.O. cite a 1969
Texas Attorney General opinion addressing whether the UT Board had
authority to “declare null and void” a previously conferred Ph.D. in the
face of findings that the graduate’s dissertation was, among other
things, “mainly plagiarism.” Tex. Att’y Gen. Op. No. M-466, at 1–2
(1969). The Attorney General concluded that because the Legislature
did not expressly “prescribe an administrative procedure whereby
degrees awarded students may be cancelled or rescinded by the
administrative board,” a degree “can only be set aside or annulled by a
Court of competent jurisdiction.” Id. at 9. Attorney General opinions
are persuasive, but not controlling, Holmes v. Morales, 924 S.W.2d 920,
924 (Tex. 1996), and we disagree with the opinion’s analysis for several
reasons.
16 The dissent deems such cases unpersuasive for a different reason
than the court of appeals: some of them cite a 1723 decision of the Court of
King’s Bench—erroneously, in the dissent’s view—to buttress their conclusion.
See, e.g., Waliga, 488 N.E.2d at 852 (discussing The King v. Univ. of Cambridge
(Bentley’s Case) (K.B.1723), 8 Modern Rep. (Select Cases) 148). Bentley’s Case
is irrelevant to the courts’ primary conclusion that the constitutional and
statutory provisions governing public universities give rise to the implied
authority to revoke an unearned degree. See, e.g., id.; Crook, 813 F.2d at 91;
Brown, 711 N.W.2d at 198; Hand, 957 F.2d at 794–95.
25
First, the Attorney General referenced the statutory provision
granting the board authority to confer degrees and grant diplomas but
said nothing about the provision broadly authorizing the board to “enact
such by-laws, rules and regulations as may be necessary for the
successful management and government of the University.” See Act
approved Apr. 23, 1895, 24th Leg., R.S., ch. 111, § 1, 1895 Tex. Gen.
Laws 169, 169, reprinted in 10 H.P.N. Gammel’s The Laws of Texas
1822–1897, at 899 (Austin, Gammel Book Co. 1898) (amended and
recodified 1971). Second, the opinion relies on an at-best outdated view
of a state agency’s implied authority, concluding that the board could
not have implied authority to annul a degree once conferred because the
Legislature did not impose a “mandatory duty” to confer a particular
degree in the first place. See Corzelius v. R.R. Comm’n, 182 S.W.2d 412,
415 (Tex. App.—Austin 1944, no writ). To the extent some cases contain
language indicating that agency authority may be implied if reasonably
necessary to fulfill an express statutory duty but not an express
statutory power, it is by now well settled that an agency has those
powers “necessarily implied from the statutory authority conferred or
duties imposed.” Student Hous. Auth. v. Brazos Cnty. Appraisal Dist.,
460 S.W.3d 137, 143 (Tex. 2015) (emphases added); see also Stauffer v.
City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). The Attorney
General’s erroneous distinction between duties and discretionary
powers in this context significantly impacted its analysis.
Further, the Attorney General’s conclusion that a “[c]ourt of
competent jurisdiction” is the only appropriate forum for revocation of a
degree is inconsistent with our recognition that “[j]udicial interposition
26
in the disciplinary decisions of state supported schools raises problems
requiring care and restraint.” Than, 901 S.W.2d at 931 (citing Epperson
v. Arkansas, 393 U.S. 97, 104 (1968)). The need for such restraint is
particularly acute when those disciplinary decisions involve the exercise
of academic judgment. Villareal, 620 S.W.3d at 907 (noting that “courts
are ill equipped to evaluate the academic judgment of professors and
universities”). 17 The Attorney General opinion also ignores the fact that
conferring a degree amounts to a continuing certification regarding the
recipient’s fulfillment of the university’s requirements. That
characteristic distinguishes revocation of a degree from rescission of
other transactions requiring court intervention, like a sale of property.
Crook, 813 F.2d at 93. Overall, we are unpersuaded by the Attorney
General opinion’s reasoning. 18
In sum, we hold that the Boards’ broad statutory authority to
govern and administer the Systems and their component institutions, to
determine the conditions for the award of degrees, and to award degrees
necessarily encompasses the authority to determine that a student did
not meet those conditions, and thus did not in fact earn a degree,
17 While not dispositive, the practical realities of the avenue
championed by the Attorney General opinion and the dissent cannot be
ignored. The result would effectively be that when a university concludes a
former student procured a degree by academic dishonesty—and thereby did
not in fact earn the degree—the university would have to file a lawsuit against
the former student for cheating.
18 As the University officials note, the Attorney General opinion
concludes by stating that a university may still “tak[e] the legal position that
by reason of the alleged fraud it will no longer recognize the degree in question
and insofar as it is concerned has cancelled the same.” M-466, at 9. The dissent
appears to agree. See post at 9 n.3 (Blacklock, J., dissenting).
27
because of academic misconduct. Whether that determination occurs
before or after a degree has been formally conferred is immaterial so
long as the underlying conduct occurred during the student’s tenure at
the university and due process is provided. 19
IV. Prospective vs. Retrospective Relief in 20-0812
Notwithstanding our conclusion that the University officials have
statutory authority to revoke K.E.’s Ph.D., K.E. further alleges that the
disciplinary proceeding she underwent violated her due-process rights. 20
See Than, 901 S.W.2d at 929–30. She seeks injunctive relief ordering
the University officials to reinstate her degree and “remove any notation
19 In 20-0811, the University officials also argue that S.O.’s claims
should be dismissed as unripe. Because we hold that they are barred by
sovereign immunity, we dismiss them for that reason without addressing the
ripeness issue.
20 We note that K.E. has not challenged the revocation decision as
unsupported by substantial evidence. As the parties correctly recognize,
institutions of higher education are not state agencies under the
Administrative Procedure Act, which therefore provides no statutory
entitlement to judicial review of those institutions’ decisions. TEX. GOV’T CODE
§ 2001.003(7)(E). However, we have recognized an “inherent right of appeal”
in narrow circumstances, such as “[w]hen a vested property right has been
adversely affected by the action of an administrative body so as to invoke the
protection of due process.” Brazosport Sav. & Loan Ass’n v. Am. Sav. & Loan
Ass’n, 342 S.W.2d 747, 750 (Tex. 1961). We explained in Brazosport that such
a right includes the opportunity to prove that the agency’s “action was illegal
or without support in substantial evidence.” Id. at 752; see also Montgomery
Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex. 2000) (explaining that a
substantial-evidence review is limited to determining whether “more than a
mere scintilla” of evidence supports the agency’s determination). Whether
K.E. may pursue an ultra vires claim premised on a lack of substantial
evidence to support the revocation decision, and the proper outcome of such a
review, is not before us.
28
that states or suggests [her] degree was revoked.” The University
officials argue that these claims remain barred by sovereign immunity
because K.E. seeks only “backwards-looking” retrospective relief to
rectify an “already-complete governmental action.” We disagree.
It is true that ultra vires claimants “may seek only prospective
injunctive remedies.” Chambers–Liberty Cntys. Navigation Dist. v.
State, 575 S.W.3d 339, 348 (Tex. 2019) (citing Heinrich, 248 S.W.3d at
369). But that is exactly what K.E. seeks. She asserts that the
University officials acted ultra vires in revoking her Ph.D. without
providing due process and requests restoration of her degree on a
forward-looking basis. If she succeeds on that claim, 21 she is entitled to
such relief. Indeed, the University officials’ position on this issue is
troublingly inconsistent with the arguments they make regarding their
authority to revoke K.E.’s degree in the first place. As discussed, we
agree with the University officials that academic degrees “are a
university’s certification to the world at large of the recipient’s
educational achievement and fulfillment of the institution’s standards.”
Waliga, 488 N.E.2d at 852. That “certification” is not an isolated event
but a continuing one. Just as a university need not continue making a
false certification “to the world at large” that a recipient earned a degree
when she in fact did not, it may not continue making a certification that
21The University officials do not argue in this Court that the due-
process claim is facially invalid. See Klumb v. Hous. Mun. Emps. Pension Sys.,
458 S.W.3d 1, 13 (Tex. 2015) (noting that “immunity from suit is not waived if
the constitutional claims are facially invalid”). We express no opinion on the
merits of the claim.
29
a recipient did not earn a degree when that conclusion has not been
made in accordance with the law.
Our opinion in Than, in which we held that a medical student
“was not afforded adequate procedural due process before his expulsion”
for cheating on an exam, supports this conclusion. 901 S.W.2d at 929.
There, we affirmed a permanent injunction ordering that, pending a new
hearing on the charge of academic dishonesty, the university remove
from the student’s transcript the “F” grade he received in the class and
remove from his records “the penalty of expulsion.” Id. at 934. Similarly
here, if the trial court determines that K.E. was not afforded adequate
procedural due process before the University officials revoked her
degree, an injunction ordering the degree reinstated and the penalty
removed from her records pending a new hearing would be appropriate.
See id.
V. Remaining Claims
As discussed, in 20-0811 the trial court denied the University
officials’ plea to the jurisdiction as to the declaratory-judgment claims
regarding the officials’ authority to revoke S.O.’s degree—and granted
summary judgment for S.O. on those claims—but the court granted the
jurisdictional plea as to S.O.’s other claims. The court of appeals
affirmed the order as to the subset of claims that S.O. appealed, and S.O.
does not seek review of those rulings here. Accordingly, no claims
remain to remand to the trial court. In the event that the University
officials pursue disciplinary proceedings against S.O. and ultimately
decide to revoke her degree, S.O. may seek judicial relief at that time if
she believes she was not afforded due process. See id. at 930 (holding
30
that the stigma associated with a medical student’s dismissal for
academic dishonesty implicated a protected liberty interest “that must
be afforded procedural due process”).
In 20-0812, however, the trial court denied the University
officials’ plea to the jurisdiction in its entirety, and the court of appeals
affirmed. Because we have held that K.E. seeks prospective relief with
respect to her due-process claims and the University officials offer no
other basis in this Court to disturb the court of appeals’ judgment as to
those claims, they remain pending and must be remanded for further
proceedings.
VI. Conclusion
We hold that the University officials have statutory authority to
revoke the degree of a former student for engaging in academic
misconduct while a student at the University. K.E.’s and S.O.’s claims
for declaratory relief to the contrary are thus barred by sovereign
immunity. Accordingly, we reverse the court of appeals’ judgments with
respect to those claims and dismiss them for lack of jurisdiction. In
20-0812, we affirm the court of appeals’ judgment with respect to K.E.’s
due-process claims and remand the case to the trial court for further
proceedings.
Debra H. Lehrmann
Justice
OPINION DELIVERED: March 31, 2023
31