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Faculty Perspective: Regents extend affirmative action policy
to graduation


This article provides an update to the infiltration of the Board of Regents' affirmative action policy into the educational process, and presents new facts that have surfaced in a resulting lawsuit. The case involves a teacher's contractual right to professionally judge and assign a scholastic grade for the quality of a student's work and to have the teacher's assigned course grade recorded on a student's academic transcript without arbitrary interference by administrators (see The University Record, vo1.57, No. 25 p 10; April 1, 2002; http://www.umich.edu/~urecord/0102/Apr01_02/15.htm). The regents are trying to have the court dismiss the case on a technicality (the Doctrine of Res Judicata question) and not on the substance or merit of the case.

New facts

The Ann Arbor News reported on Aug. 26, 2002 that "[Dean William] Kotowicz's secretary, Diane McFarland, said her boss is highly respected at the school and has done a great deal to promote diversity there, showing great support for women and minorities." This fact links actions by the dental school administrators directly with the regents' affirmative action policy.

On Sept. 3, 2003, the affidavit of Dean William E. Kotowicz was filed with the court. In his affidavit Dean Kotowicz's states: "A 'W' was placed on the students' transcripts for the Fall 1999 term, signifying that they had been enrolled at the School of Dentistry for the Fall 1999 term, but were 'withdrawn' from the first remediation course prior to that course being completed and a final grade issued."

This fact is crucial because the grading system voted into place by the dental school faculty does not designate or define a "W" grade.

Contractual right to grade students and have course grades recorded

In education, governing boards do not judge the quality of a student's work in the classroom, laboratory, studio or clinic. It is absolutely necessary, therefore, for a board to use a teacher's professional judgment and scholastic grade for the quality of a student's work. The teacher's assigned course grade recorded on an academic transcript is likewise absolutely necessary to certify that a student has successfully completed a course of study and is entitled to promotion or graduation and a diploma.

A fundamental principle in healthcare education is that the governing board use a teacher's professional judgment, true course grade and faithful transcript to certify and graduate a skilled and competent dentist, physician, pharmacist, hygienist, nurse or other healthcare provider who will do no harm.

Tenured professors at a public university in Michigan have a property interest in continued employment protected by due process. The professors' property interest arises from an employment contract and is defined by the terms of their university appointments when tenure was awarded, and rises to a higher level than an employment contract with a private employer. [Garner v. MSU, 185 Mich. App. 750, 758-59 (1990); citing, Bd of Regents of State Colleges v. Roth, 408 U.S. 564, 578 (1972)].

In addition to a property interest, a usage or custom can form a binding contractual relationship when it is: (1) deeply rooted in the business or profession, (2) universally accepted, (3) necessary, (4) followed or used, (5) publicly known, and (6) the parties who made the contract are both cognizant of the usage, and must be presumed to have made their engagements in reference to it. [Pennell v. The Delta Transportation Co., 94 Mich 247, 252 (1892)].

The Michigan Supreme Court cited and adopted the United States Supreme Court ruling that states: "Explicit contractual provisions may be supplemented by other agreements implied from 'the promisor's words and conduct in the light of the surrounding circumstances.' And, the meaning of [the promisor's] words and acts is found by relating them to the usage of the past." Perry v. Sindermann, 408 U.S. 593, 601-603 (1972); cited in Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich 579, 617- 18 (1980); Lamb v. Henderson,63 Mich 301, 305 (1886).

Usage

It is absolutely necessary for the Board of Regents to use teachers' professional judgment, assigned scholastic grades and assigned course grades recorded on academic transcripts to certify to an employer, licensing board, graduate school, financial aid officer and society that a student has successfully completed a course of study and received a degree.

The United States Court of Appeals for the Seventh Circuit found: "Grades appear on students' transcripts; the transcripts bear the university's seal and imprimatur, so a university necessarily knows every student's grades. Transcripts (and diplomas, if the grades warrant them) are issued by the university, not by members of the faculty individually or collectively. It is the university's name that appears on the diploma; the university certifies to employers and graduate schools a student's successful completion of a course of study. Universities are entitled to assure themselves that their evaluation systems have been followed; otherwise their credentials are meaningless." (Emphasis added) Wozniak v. Conry, et al., 236 F.3d 888, 891 (7th Cir. 2001).

Since 1875 the Board of Regents and teachers have known that the board uses a teacher's assigned course grade recorded on an academic transcript to certify to society that a student has successfully completed the predoctoral program and received a doctor of dental surgery degree from the University of Michigan.

Custom

For centuries teachers have reported to parents or students their professional judgment and a scholastic grade for the quality of the student's work, promotion into the next class and graduation. Governing boards ceremoniously issued certificates, diplomas or degrees based on these judgments and the grades recorded on report cards or transcripts. The administration played merely a ministerial role in the reporting, recording, promoting and graduating processes.

The United States Supreme Court recognized this custom in education when it said: "[w]e decline to ignore the historic judgment of educators. The educational process is not by nature adversary; instead it centers around a continuing relationship between faculty and students. University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation." Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 96 n. 6 (1977). See also NLRB v. Yeshiva University, 444 U.S. 672, 688-89 (1979); Parate v. Isibor, 868 F.2d 821, 828 (6th Cir. 1989); Settle v. Dickson County School BD., 53 F.3d 152, 155 (6th Cir. 1995).

The preceding usage and custom are deeply rooted and universally accepted. They are necessarily followed and used by governing boards and teachers. They are publicly known by parents and students.

This usage and custom meets all requirements to form a binding contract between the Board of Regents and a teacher for a teacher to professionally judge and assign a grade for the quality of a student's work and have the teacher's assigned course grade recorded on a student's academic transcript.

Breach of contract

The Board of Regents has ultimate authority over grading, promotion and graduation of students. On Dec. 15, 1999, each regent was served a complaint describing the facts in this matter. The regents gave special treatment to a minority and female students and breached the contractual rights of a panel of four teachers by "arbitrarily" rejecting the "F" grades the teachers had unanimously assigned the students on a competency examination.

On May 12, 2001, the regents conferred doctor of dental surgery degrees to students who: (1) never removed their academic deficiencies; (2) have invalid transcripts; (3) will provide sub-standard health care to society; and (4) may injure or kill an innocent patient.

Because the present Board of Regents and their administrators do "arbitrarily" change, reject or refuse to record a teacher's professional judgment and assigned grade, teachers should stop judging and assigning grades for the quality of students' work.

If teachers stop judging and assigning grades, the Board of Regents would have no basis to certify to society that a student has satisfactorily completed a course of study and received a degree. Without a true transcript the student's degree is a "fraud," and there can be "no valid certification" by the regents.

If the Board of Regents refuses to accept a teacher's professional judgment and record the teacher's assigned course grade on a student's transcript, they should shut and lock the classroom doors and get out of the business of education.

Gender and racial preferences

The law and facts in this case speak loud and clear. Logical deduction, rational reasoning and common sense inform us that affirmative action is not a legitimate reason to breach a teacher's contract and send unskilled or incompetent dentists to provide oral health care to society.

Health care teachers have a duty to protect society from harm by judging the quality of student work, assigning scholastic grades, and having their assigned course grades recorded on a student's academic transcript regardless of the student's age, race, gender, religion, ethnicity or political ideology.

Breach of integrity

In May to June 2001, the Board of Regents knowingly and intentionally sent invalid transcripts to the North East Regional Board of Dental Examiners and the University of Illinois certifying that a minority and female students had successfully completed the pre-doctoral program at the University of Michigan School of Dentistry. These acts tainted the reputation, tarnished the image, and diminished the credentials of the University of Michigan.




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