Courts typically view the relationship between a student and a private college or university as “contractual” in nature. This means that private school students who are dismissed for misconduct may file suit for breach of contract, claiming their institution failed to abide by contractual disciplinary procedures or other duties assumed by the institution in student handbooks or other official policies.Historically, courts have been skeptical of such claims, giving broad deference to all manner of disciplinary decisions made by private institutions. However, recent decisions vigorously scrutinizing dismissals for violation of non-academic policies governing sexual harassment and sexual assault suggest that trend is changing. Yet, the recent case Al-Dabagh v. Case Western Reserve University, F.3d, 2015 WL 342822 (6th Cir. 2015) demonstrates that an institution can shield its dismissal decisions from this increased scrutiny by including ethical and responsible conduct as a core academicrequirement for certain professional degrees.

Al-Dabagh was a student in Case Western’s School of Medicine. The school’s curriculum identified a number of “core competencies” for successful completion of the medical degree, including that students “demonstrate[] ethical, honest, responsible and reliable behavior.” Although Al-Dabagh received good grades, the school dismissed him on the eve of graduation based on its findings that he was frequently late to class, propositioned a classmate for sex and groped another on a dance floor, exhibited poor bedside manner, and drove under the influence of alcohol.

Because the school “included ethical, honest, responsible, and reliable behavior” as a core competency, the Sixth Circuit Court of Appeals characterized Al-Dabagh’s dismissal as academic even though it was predicated in large part on conduct that occurred outside the traditional academic environment. The Sixth Circuit held that a court’s power to review an academic dismissal such as Al-Dabagh’s is severely constrained—noting the dismissal could only be overturned if it was “arbitrary and capricious regardless of whether the court would have decided matters differently.” Noting that judges are “ill equipped” to second-guess such academic decisions, the Sixth Circuit found in Case Western’s favor, holding its decision to dismiss Al-Dabagh was “within the realm of reason.”

What this means to you

Colleges and universities should evaluate their professional degree programs to determine whether ethical, honest, responsible, and/or professional conduct can be legitimately characterized as a core competency of a student entering the profession. If so, the institution should consider describing such conduct as a required competency for graduation and include the competency in academic publications, such as catalogs and syllabi. Doing so will provide the institution’s disciplinary decisions with more protection from judicial scrutiny than if the conduct is regulated purely by a general student code of conduct.