The University Record, April 1, 2002

Faculty Perspectives: Professors’ grading protected by free speech

By Keith Yohn, associate professor of dentistry

On December 15, 1999, I filed a lawsuit against the University of Michigan Regents and their managerial agents. The case is about public policy, the First Amendment to the United States Constitution, and the well-established custom in education of a teacher judging the learning progress of a student and communicating this judgment without a governing board, board member, managerial agent, administrator, staff person, parent, or other teacher arbitrarily interfering in the teacher-student relationship. This custom has existed in education since the days of Plato, Socrates and Aristotle. The custom has evolved through centuries of practice into a clearly established “common law.” In 1978, the United States Supreme Court acknowledged the existence of this law when the Court said:

“[W]e decline to ignore the historic judgment of educators and thereby formalize the academic process. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students. . . . the decision of an individual professor as to the proper grade for a student in his course, . . . requires an expert evaluation of cumulative information that is not readily adapted to the procedural tools of judicial or administrative decision making. . . . University faculties must have the widest range of discretion in making judgments as to the academic performances of students and their entitlement to promotion or graduation.” Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 96n.6 (1978).

This law, when enforced, protects society against capricious or tyrannical governing boards of colleges and their subordinate agents who might manipulate a student’s grade without the professor’s consent. If the court were to overturn this law, the quality of education in the United States would decline along with the concept of merit, and democratic ideals would disappear from the academy. A student’s grade is created by and is governed by the professor who taught the course and assigned the grade.

In the first round of my arguments, the U.S. District Court dismissed my 42 U.S.C. section 1983 claim on the basis that I had not been prevented from expressing the students’ grades. U-M administrators had merely declined to record our grades and had substituted higher ones in their place. I think this sort of logic by the court is flawed because the regents and university administrators can thus insidiously manipulate any student’s grade without a professor’s consent.

There are many ways that governing boards and university administrators can manipulate a student’s grade without the professor’s consent, some in ways extreme and outrageous, but others in ways more finessed. They have the same result and are indifferent in outcome. Most involve some method of intimidation of the professor. Examples might include: threats of dismissal from the University or specific teaching assignments; orders to skew grading curves; directions to the registrar to manipulate a student’s grade; orders to a professor to assign a student a certain grade before the course begins; orders to a professor to manipulate a student’s grade after it was submitted to the registrar; or simply arbitrarily vacating a professor’s assigned grade and substituting a higher grade without the professor’s consent.

It makes no difference to the principle of protected free speech whether the result is achieved by applied force, implied force, intimidation or duplicity. The result is the same. The regents and University administrators restrict a professor’s “free speech right” to assign a grade to a student and interfere with the common law of pedagogy. This issue is independent of any potential subsequent faculty-run grade appeal procedures that might be appropriate in an individual case.

The undisputed facts in the record that provoked my stand show that two dental students had already failed competency evaluations when the executive committee authorized a repeat course to give them opportunity to remove their academic deficiencies in order to be promoted into the junior year of the pre-doctoral program. This action was in accordance with faculty prerogatives to control the academic matters of their unit.

The Dental School faculty’s written policy statement (University of Michigan Bulletin Volume 29, No. 2 “Explore the School of Dentistry 1999–2001,” pages 38–42) for students removing their academic deficiencies states: (1) “if the first examination [in the arranged repeat course] results in an E grade, a second examination may not be taken”; (2) “the highest grade a student can receive in the course is a C-”; and (3) “only the executive committee of the School of Dentistry has the right to modify or make exception to these policies at its discretion.”

On October 6, 1999, a panel of four professors unanimously assigned “F” grades to the two dental students in the first competency examination for the repeat course. These grades sent a message to the students that they had failed that repeat course and were not ready to be promoted into the junior year.

Without authorization from the executive committee, administrators acting as regents’ agents intentionally and arbitrarily vacated the “F” grades and violated the faculty’s long standing written policy that “if the first examination results in an E grade, a second examination may not be taken” so that the agents could let the students perform a prohibited second and different examination, assign the students unwarranted passing grades, and illegitimately promote the students into the dental school’s third year pre-doctoral program.

Without authorization from the executive committee, without the professors’ consent, and without a legitimate reason administrators acting for the regents willfully vacated the “F” grades reported by the professors and betrayed their agreement with the faculty that the “F” grades on the first examination would stand.

As a result of these actions by agents of the regents, the students were artificially promoted without meeting the competency standards established by the faculty. In May 2001, the regents conferred a Doctor of Dental Surgery degree on the students without the students fulfilling all the requirements for the degree.

Why is it that I have taken a stand on a principle that I identify as freedom of speech? Perhaps these abridgements of freedom are more widespread than people like to acknowledge, but even so, why should faculty care if their professional opinions about student competency are recorded or not? The consequences of acquiescence extend far beyond my prerogative to speak my own mind and into the realm of the duty we hold to protect our society.

I submit to the court and to all readers that a health care professor has an interest in protecting the unsuspecting public from an unskilled or incompetent dental student who may jeopardize the health care and safety of the public. I submit that this duty to society outweighs the regents’ and/or their agents’ interest in inflating the dental students’ grades to give the students a social promotion and a Doctor of Dental Surgery degree.

It is common sense that patients are concerned about having a dentist who is unskilled or incompetent, but professionally buoyed by inflated grades, working in their mouths and the mouths of their children, just as citizens should be alarmed if unskilled or incompetent engineers with inflated grades are building bridges.

The U.S. Supreme Court has held that “The First Amendment prohibits the government from regulating speech based upon its substantive content or the message it conveys.” Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828 (1995). “A letter grade is symbolic communication intended to send a specific message to the student, the individual professor’s communicative act is entitled to some measure of First Amendment protection.” Parate v. Isibor, 868 F.2d 821, 827 (6th Cir. 1989). “[t]he individual professor’s assignment of a letter grade is protected speech,” Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 96 n.6 (1978); “So long as the teacher violates no positive law or school policy, the teacher has broad authority to base her grades for students on her view of the merits of the student’s work.” Settle v. Dickson County School BD., 53 F.3d 152, 155 (6th Cir. 1995).

The managerial agents (university administrators) are proxy for and speak for the University of Michigan regents. Valassis v. Samelson, 143 F.R.D. 118, 121 (E.D. Mich 1992). By this law, the regents are ultimately accountable for actions by their agents that abridge individual rights and that endanger public health or safety.