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Q: Libel questions in Oregon ( Answered,   1 Comment )
Question  
Subject: Libel questions in Oregon
Category: Relationships and Society > Law
Asked by: loraksus-ga
List Price: $20.00
Posted: 07 Dec 2002 18:03 PST
Expires: 06 Jan 2003 18:03 PST
Question ID: 121105
Hi. I live in Portland, Oregon and have a legal question. I have
recently discovered conclusive proof that a professor falsified my
grade in her college class.

The administration of the community college I attend has rejected -
from day one – the notion that grades were incorrect, and has defended
its staff member from day one. The kicker is this: When given
conclusive proof that grades were indeed falsified, the Executive Dean
refused to discuss the issue any further and hid behind the "Student
Grievance Procedure". The deadlines for filing a student grievance
have passed, but I feel that I should have a correct grade in the
class, and when evidence of malfeasance or wrongdoing was discovered
is irrelevant.
The college has refused further communication with me on this issue. 

 I believe that false information on a student's transcript could be
construed as libel, although I am not a lawyer. My question comes in 3
parts:
1) Could incorrect information on a college transcript be construed as
libel?

2) Has there been any similar suits in the State of Oregon? 

3) The falsification of grades occurred nearly 1 year ago, and I am
not clear on the statute of limitations on libel in this State, or
whether State limitations would apply [for example, if I had to file
in the 9th circuit]. Also, is the date that the case is filed the
"important" date, or the date that the case is decided?

I have tried virtually everything to avoid going to court over this
situation, however I believe that my only recourse is the legal
system. If you have any reccomendations outside of seeking legal
advice, those would be nice [i.e. tip :)]
I can post further details, etc, if you would like, however I
understand that this site prefers not to have personal information et
cetera posted.
Thanks in advance.
Answer  
Subject: Re: Libel questions in Oregon
Answered By: weisstho-ga on 07 Dec 2002 21:56 PST
 
Hello loraksus, and thank you for visiting us. 

I’m sorry to hear of your troubles in gaining the correction that you
are seeking.  I hope, however, that you will find these bits of
information helpful. I have organized the answer in the order of your
questions:

1) 	Could incorrect information on a college transcript be construed
as:

LIBEL? 

Although there are no published cases in Oregon, various cases from
other states do support libel as an action that is appropriate in your
case.

A claim of libel requires that plaintiff prove (1) a false and
defamatory statement concerning plaintiff; (2) an unprivileged
publication to a third party; (3) fault amounting to at least
negligence on the part of defendant; and, (4) either defamation per se
or the existence of special harm caused by the publication.

Here is a site that discusses libel in Oregon:
http://www.osbar.org/1legallinks/public/legalinfo/1186.htm


Beyond a claim for Libel, you may consider these other potential
claims:

*************************

DISCRIMINATION 

Where a plaintiff asserts that he or she was discriminated against,
harassed, or denied equal protection on the basis of race, sex, and
national origin, then a discrimination claim may be brought as well. 
To succeed in this claim, plaintiff must show that he/she is a member
of a protected group and that he has been discriminated against or
harassed on the basis of his group membership, either through a
predisposition by defendants to such discrimination, or by disparate
treatment between plaintiff and others who do not belong to the
protected group: race, sex, or national origin.

*************************

BREACH OF CONTRACT

A plaintiff may consider charging the school with breach of contract
because "the quality of education at XYZ College/College is not as
advertised" or a similar breach of a promise.  In order to recover on
a breach of contract theory, plaintiff must prove (1) that a contract
existed between the parties; (2) the terms of the contract; (3)
defendants breached the contract; and, (4) that the breach caused
injury to plaintiff.

To support this claim for Breach of Contract, one would have to show
evidence showing that the college bound itself either expressly or
impliedly. For example, if the college promised to provide an
appellate process and refused, you may prevail on this claim.
 
*************************
*************************

2) 	Have there been any similar suits in the State of Oregon?  

A review of Westlaw does not show any reported cases similar to the
one that you are proposing.  Of course, this does not mean that a case
was never filed, since the reported cases available in the databases
only include those from the courts of appeals and the supreme courts.

*************************
*************************
 
3) 	“The falsification of grades occurred nearly 1 year ago, and I am
not clear on the statute of limitations on libel in this State, or
whether State limitations would apply [for example, if I had to file
in the 9th circuit]. Also, is the date that the case is filed the
"important" date, or the date that the case is decided ?”

“An action for libel or slander shall be commenced within one year.” 
This is from the Oregon Revised Statutes, Chapter 12, Section 120 (ORS
12.120) which is available at:
http://landru.leg.state.or.us/ors/012.html .

“An action upon a contract, express or implied, shall be commenced
within six years.”
ORS 12.080.  http://landru.leg.state.or.us/ors/012.html .

 The clock begins ticking, typically, when the event causing the cause
of action occurs.  The filing of the lawsuit (i.e. filing the
complaint with the court) then stops the clock and the time difference
between the occurrence and the filing of the suit must be less than
the period of limitation – one year for libel, and six years for
contract.

*************************
*************************
Unless a plaintiff can find that there is a “federal cause of action”
which is to say that the defendant has ‘broken’ a federal law, a suit
can only be brought in federal court if the plaintiff and defendant
are from different states – this is called diversity jurisdiction and
is discussed here: http://www.uscourts.gov/understand02/content_4_0.html
.

Your case, would in all probability, be brought in state court in
Oregon, assuming that you are a resident and citizen of the state of
Oregon. The appropriate state court would be the Circuit Court in the
county in which the college is located.

*************************
*************************
You may want to consider appearing before the community college’s
board of education with your issue, and ask for them to direct the
administration to investigate your concerns and report back to them.
Board members typically are very interested in hearing of student
complaints, and investigate them fairly thoroughly.

If this seems like a reasonable approach, may I suggest that you write
a short (one to two page) report detailing your case, and submitting
this to the secretary of the board for inclusion in the board member’s
meeting packets. Then ask for an opportunity to make a short
presentation during the board meeting and make a short, to-the-point
presentation of your case.

*************************
*************************

There is a case that you might find interesting. 

A student was dismissed from medical school when officials found that
he was "unsuitable to practice medicine," after he failed to complete
the first year curriculum in three years. He filed suit against the a
university and medical school officials. He claimed that there were
violations of his due process rights and deprivation of his liberty
interest in his medical career.  Although this is a much more
comprehensive set of facts than you have faced, many of the issues
addressed by the Texas court in this case are similar to issues in
which you are interested.

I am attaching this case as a comment (see below) since it is so long.

If you have ANY questions, please click on the Clarification Button
and ask away. I will get back to you with an answer as soon as
possible.

Best of luck to you,

Weisstho-ga
    


Search Strategy:
://www.google.com/search?sourceid=navclient&q=libel+and+oregon
://www.google.com/search?sourceid=navclient&q=diversity+jurisdiction
http://www.open-oregon.com/New_Pages/media_handbook/chapter_03.html
Comments  
Subject: Re: Libel questions in Oregon
From: weisstho-ga on 07 Dec 2002 21:58 PST
 
ARTEMIO ARTURO ALANIS, JR. v. UNIVERSITY OF TEXAS HEALTH SCIENCE
CENTER

843 S.W.2d 779 (Court of Appeals of Texas, 1st District, 1992)

This is an appeal from a summary judgment in favor of the appellees,
the University of Texas Health Science Center (U.T.H.S.C.), John
Ribble, Margaret McNeese, Roger Bulger, Joe Wood, Wallace Gleason, Pat
Carver, Joel Yeakley, and Allen Cooper. We affirm.

Initially the appellant, Artemio Arturo Alanis, Jr., sued the
appellees, alleging violations of his procedural and substantive due
process rights arising from his dismissal from medical school, as well
as libel, slander, mental anguish, breach of contract, and breach of
public trust. He also alleged membership in and representation of a
class of persons discriminated against due to an alleged conspiracy to
deprive them of their constitutional rights. The appellant sought
injunctive relief, including reinstatement to medical school, and
actual and punitive damages of $ 2,250,000.

The appellees entered a general denial, and asserted the affirmative
defenses of governmental immunity and statute of limitations.

The appellees moved for summary judgment on May 22, 1990, claiming
sovereign immunity on the contract claims against U.T.H.S.C. and its
officials acting in their official capacities, no violations of Mr.
Alanis' due process rights because the acts of the officials were not
arbitrary or capricious, and no deprivation of Mr. Alanis' equal
protection or due process rights. The appellees further argued that,
notwithstanding the sovereign immunity defense, they did not breach
any contractual obligations to the plaintiff. As summary judgment
proof, the appellees attached Mr. Alanis' academic record, some 37
pages of material, including his grades; application to medical
school, letters from Mr. Alanis to various faculty members; memos from
Dr. McNeese and others to the file and to Mr. Alanis; the report from
Mr. Alanis' May 15, 1986, accident at the school; and portions of the
minutes from the Student Evaluation and Promotions Committee (SEPC)
meeting where his first leave of  absence was granted. Mr. Alanis'
academic file reflected that during the 1983-84 academic year, he
received Fs in biochemistry, behavioral science, microbiology, and
physiology. He also received an incomplete in Neuroscience. The memos
and letters in the file indicate that Mr. Alanis was having health and
personal problems that were affecting his academic performance.

Other letters in Mr. Alanis' file indicated he was willing to submit
to psychiatric and ear-nose-throat evaluations to determine the origin
of the health problems he was claiming as the cause of his poor
academic performance. The psychiatric evaluation revealed that Mr.
Alanis was mildly depressed; however, the psychiatrist also noted that
Mr. Alanis had "chronic feelings of low self-esteem, anxiety, and
difficulty with intimate relationships, all of which seem related to
his childhood." The doctor further noted that, in his opinion, without
ongoing, long-term therapy, Mr. Alanis would not be successful
academically.

On September 18, 1990, the court granted a partial summary judgment in
favor of the appellees, disposing of Mr. Alanis' libel and slander
claims due to the expiration  of the statute of limitations. Mr.
Alanis is not complaining about this ruling on appeal.

Mr. Alanis then filed a second amended original petition on April 19,
1991, complaining of the actions of Drs. McNeese and Ribble,
individually and in their official capacities at the medical school.
In this petition, the appellant sought a declaratory judgment,
injunctive relief, actual damages of $ 2,000,000, and punitive damages
of $ 4,000,000 under 42 U.S.C.  1983 (West 1986). Shortly thereafter,
on April 23, 1991, the appellant filed his first supplemental petition
wherein he sued Ribble, Wood, Carver, Gleason, Yeakley, and Cooper for
all of the same violations that he alleged in his second amended
original petition against Ribble and McNeese. The appellees answered
and filed special exceptions.

The appellant's third amended original petition, filed on May 6, 1991,
sued McNeese, Bulger, Ribble, Wood, Carver, Gleason, Yeakley, and
Cooper, individually and in their official capacities. This petition
alleged a course of action by McNeese that was improper and unlawful,
violated Alanis' due process, and was contrary to the regents' rules,
regulations, and guidelines of the U.T.H.S.C.. Mr. Alanis further
alleged that McNeese, while acting as dean of student affairs,
maliciously and with ill will acted arbitrarily and capriciously,
further denying his rights of due process. He alleged that these
actions by McNeese were both within and beyond the scope of her
authority. He further alleged that McNeese continued her malicious and
unlawful actions by secreting parts of Mr. Alanis' academic file. He
sought damages from the remaining defendants for their negligence for
permitting McNeese to violate his civil rights. He further alleged
that the defendants gave information about his suitability as a
medical student to a "certain centralized clearing house" and
therefore, made it impossible for him to register with any other
medical school. The appellant sought declaratory judgment and
attorneys' fees under TEX. CIV. PRAC. & REM. CODE ANN.  37.009
(Vernon 1986), and actual and punitive damages and attorneys' fees
under 42 U.S.C.  1983 in the amount of $ 6,000,000.

On May 16, 1991, Mr. Alanis moved for a partial summary judgment on
his substantive and procedural due process violations claims. His
motion reserved for determination by a jury the amount of damages to
be awarded.

The appellees responded and re-urged their original motion for summary
judgment filed the previous year. They also filed a supplement to this
motion on June 3, 1991. The response urged summary judgment for
U.T.H.S.C. on all of Mr. Alanis' claims on the basis of sovereign
immunity, and for all defendants on the basis of qualified immunity
and because of varying statute of limitations arguments. The response
further argued that although the appellant characterized his dismissal
as based on "suitability," the appellant was dismissed for academic
reasons, and, as a matter of law, was afforded the required due
process. The appellees re-urged their summary judgment motion, arguing
that Mr. Alanis failed to allege that the appellees' conduct was such
a substantial departure from accepted academic norms as to demonstrate
they did not exercise professional judgment, citing Eiland v. Wolf,
764 S.W.2d 827, 835 (Tex. App.--Houston [1st Dist.] 1989, writ
denied).

In the defendants' supplement, they urged the court to find that Mr.
Alanis' liberty interest was not violated because he failed to show
that some defendant publicized false and stigmatizing information
about him. They further asserted the defense of qualified immunity
because no defendant violated clearly established law of which a
reasonable official would have known.

Mr. Alanis failed to bring forward his fourth amended petition as part
of his record. At the time the defendants' summary judgment was
granted, Mr. Alanis had filed his fifth amended petition. While it is
true that the order granting leave to file this pleading, and Mr.
Alanis' supplemental and second supplemental affidavits, was not
signed until August 20, 1991, the docket sheet entries reflect that
the court had these pleadings before it on June 24, 1991. The docket
sheet and order reflect the court denied the defendants' motion to
strike Mr. Alanis' fifth amended petition. n1 The docket sheet further
reflects that the court took Mr. Alanis' partial motion for summary
judgment under advisement. Therefore, we will consider the court's
ruling based upon the allegations in the fifth amended petition, the
parties' cross-motions for summary judgment, and the summary judgment
evidence. Following is a summary of the evidence before the trial
court at summary judgment.
  
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -
- - - - -

n1 On page 483 of the transcript, the docket notation, dated June 24,
1991, is as follows: "M to Strike 5th Amended - denied as court rules
factual supplementation only - no new parties; no new causes of
action."
  
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
- - - - -

Mr. Alanis first began attending medical school during the 1983-84
school year. He received failing grades in all five classes. Mr.
Alanis had discussed the possibility of obtaining a leave of absence
with one of the administrators; however, this was not approved until
the 1983-84 academic year was over. Mr. Alanis did later successfully
remediate one class. During this time, he attributed his scholastic
troubles to problems with his health and with his girlfriend.

When Mr. Alanis' file and leave request were reviewed by the Student
Evaluation and Promotions Committee (SEPC) on June 21, 1984, the
committee voted to permit Mr. Alanis to repeat his first year of
medical school; however, he did not do so. Rather, again citing health
and other relationship problems, Mr. Alanis applied for another leave
of absence. The school granted the leave on the condition that he
undergo psychiatric therapy prior to his return to school. Mr. Alanis'
doctor was to periodically provide the school with evidence that he
was continuing in therapy, and at the end of the year, provide the
school with a statement regarding Mr. Alanis' ability to resume
medical school. After prompting from Dr. McNeese,  Mr. Alanis'
psychiatrist submitted a report to the University. The doctor
indicated that if Mr. Alanis continued psychotherapy, he should be
able to succeed academically.

Mr. Alanis returned to medical school in the fall of 1985. During the
first quarter of that school year, he was one hour late to his
developmental analysis examination. He also missed three other exams
during the spring of 1986, including his physiology final. He missed
that exam due to an automobile accident, and also missed the scheduled
make-up exam because of car trouble.

In June 1986, Dr. Wood spoke with Mr. Alanis regarding his excuse for
missing the make-up physiology exam. Dr. Wood requested Mr. Alanis
seek psychiatric care and warned him of the possible consequences of
missing another exam. Mr. Alanis was informed by Dr. Wood that he was
apparently falling into a pattern of missing examinations as he had
done before. Mr. Alanis was told that by requesting extra
consideration, failing to complete his exams on schedule, and by
leaving the  campus without taking his exams or without administrative
approval, he had jeopardized his U.T.H.S.C. standing. Dr. Wood's memo
indicates that Mr. Alanis believed the requirements were unfair and
harsh, and that the school was making unreasonable demands upon him.

Mr. Alanis initially met with appellees McNeese, Wood, and Gleason on
August 12, 1986, to discuss his academic problems. He presented his
position orally and also submitted it in writing two days later. It
was in this letter that the appellant requested his case be reviewed
by the SEPC. The SEPC informed Mr. Alanis on August 15, 1986, that his
academic standing would be discussed at their August 25, 1986, meeting
and gave him an opportunity to appear. He failed to appear.

The SEPC notified Mr. Alanis on August 26, 1986, that he was being
dismissed because of his incomplete grade in physiology (due to the
missed make-up exam) and because of his previous academic failures.

After the SEPC voted to dismiss him, Mr. Alanis appealed to the dean
of the medical school, Dr. John Ribble. He discussed his case with Dr.
Ribble and also submitted a letter. When Dr. Ribble denied Mr. Alanis'
appeal, he then appealed to the president of the medical school, Dr.
Roger Bulger. As a consequence of that appeal, Dr. Bulger remanded
Alanis' case to the SEPC for further consideration. The record
reflects that the SEPC discussed Mr. Alanis' medical school
performance at its September 9 and September 17 meetings.

When Dr. Bulger remanded the appellant's case, he asked Dr. McNeese to
outline more specifically the reasons for Mr. Alanis' dismissal, which
she did in a September 12, 1986, memo to Dr. Wood. These reasons
included a recitation of Mr. Alanis' past poor academic performance,
including the fact that in three years he had been unable to complete
even the first year of study, and his repeated absences from exams.
She concluded by saying that the SEPC felt he was unsuitable to
practice medicine. Apparently, the SEPC did not include this specific
reason when it originally notified Mr. Alanis of his dismissal. At the
time the SEPC first met, it believed that the incomplete physiology
grade would be converted to a failing grade. This alone would justify
dismissal. However, the physiology department chose to retain the
incomplete because it had not previously informed the students of a
policy to convert incomplete grades to failing grades. Thus, when the
incomplete grade was not converted to failing, the SEPC felt it
necessary to articulate the other reasons for Mr. Alanis' dismissal in
order to protect itself from litigation.

The SEPC notified Mr. Alanis on September 23, 1986, that his situation
would be reviewed again at the SEPC's September 29 meeting. The
appellant was invited to and attended that meeting. At that meeting,
Mr. Alanis was told what had transpired at the September 17 meeting
and given the opportunity to discuss this with the SEPC. Subsequent to
the SEPC's decision, Mr. Alanis Bled suit.

In two points of error, the appellant alleges that the trial court
erred in granting the appellees' motion for summary judgment and
denying his motion for partial summary judgment. He argues there have
been violations of his procedural and substantive due process rights
and deprivation of his liberty interest in his medical career.
  
Standard of Review 

The standard for appellate review of a summary judgment for a
defendant is whether the summary judgment proof establishes, as a
matter of law, that there is no genuine issue of fact about one or
more of the essential elements of the plaintiffs cause of action.
Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Nixon
v. Mr. Property Management Co., 690  S.W.2d 546, 548-49 (Tex. 1985).
Pleadings do not constitute summary judgment proof, but simply outline
the issues. Delaney v. University of Houston, 792 S.W.2d 733, 735
(Tex. App.--Houston [14th Dist.] 1990, no writ). When deciding whether
there is a disputed material fact issue, precluding summary judgment,
evidence favorable to the nonmovant will be taken as true and every
reasonable inference must be indulged in favor of the nonmovant. Id.;
Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Hidalgo v.
Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971). A summary
judgment for the defendant, disposing of the entire case, is proper
only if, as a matter of law, the plaintiff could not succeed upon any
theories pleaded. Havens v. Tomball Community Hosp., 793 S.W.2d 690,
691 (Tex. App.--Houston [1st Dist.] 1990, writ denied). Once the
defendant produces sufficient evidence to establish the right to a
summary judgment, the plaintiff must set forth sufficient evidence to
give rise to a fact issue to avoid a summary judgment. "Moore" Burger,
Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex. 1972).

When both parties move  for summary judgment, all the evidence
accompanying both motions should be considered in deciding whether to
grant either party's motion. Dallas County Appraisal Dist. v.
Institute of Aerobics Research, 766 S.W.2d 318, 319 (Tex. App.--Dallas
1989, writ denied).

Historically, the courts have refused to review a school's decision to
dismiss a student except under limited circumstances, such as
allegations and proof that the school officials acted arbitrarily and
capriciously, or otherwise abused the authority vested in them.
Eiland, 764 S.W.2d at 833. If the dismissal was based upon academic
grounds, the school's decision is not to be disturbed unless it was
motivated by bad faith or ill will unrelated to academic performance,
or was based on arbitrary and capricious factors not reasonably
related to academic criteria. See Hines v. Rinker, 667 F.2d 699, 703
(8th Cir. 1981). later decisions of the United States Supreme Court
have not only affirmed, but have further restricted the standard of
evaluating suits based upon academic dismissals. Eiland, 764 S.W.2d at
833.
  
Parties Against Whom Appeal is Taken 

Although it appears from the appeal bond that Mr. Alanis seeks to
appeal the summary judgment order in favor of all of the original
defendants, Mr. Alanis' brief neither raises points of error nor
attacks the judgment in favor of Joel Yeakley, Allen Cooper, Pat
Carver, or the University of Texas Health Science Center as a State
agency. Therefore, Mr. Alanis has waived his right to appeal against
these parties, and we affirm the judgment on those parties without
addressing the merits of Mr. Alanis' appeal. See TEX. R. APP. P. 74(d)
and 74(f).

The merits of Mr. Alanis' arguments and points of error as they relate
to John Ribble, Margaret McNeese, Roger Bulger, Joe Wood, and Wallace
Gleason, individually and in their official capacities as officials at
the University of Texas Health Science Center, are addressed in this
opinion.
  
Procedural Due Process 

The Supreme Court distinguished the constitutional requirements for a
disciplinary dismissal from one based upon academic factors and
expressly declined to "further enlarge the judicial presence in the
academic community." Board of Curators of the Univ. of Missouri v.
Horowitz, 435 U.S. 78, 91, 55 L. Ed. 2d 124, 98 S. Ct. 948 (1978). The
medical student in Horowitz was complaining that her dismissal was for
disciplinary reasons because the faculty considered her personal
hygiene habits and timeliness in keeping clinical schedules as part of
its determination of whether the student would make a good medical
doctor. Id. at 91 n.6. In affirming the University's actions, the
Court noted that a school typically considers and weighs a variety of
factors when making an academic evaluation. Id.

Mr. Alanis complains that his right to procedural due process was
violated because of the manner in which the SEPC handled his
dismissal. His motion for summary judgment contemplates three
categories of dismissals -- academic, disciplinary, unsuitability --
each with its own standard of review. He focuses on the notice
surrounding his dismissal for nonacademic reasons -- unsuitability to
practice medicine. Thus, we conclude he must believe that his
situation belongs in the category of unsuitability dismissals.
However, he cites no case law, and we can find none, that suggests we
should recognize this particular category of dismissal. Rather, we
believe the correct analysis is whether one's suitability to practice
medicine is an academic consideration. As one court noted,
  
when a medical student is dismissed due to failure to attain the
proper standard of scholarship, two questions may be involved; the
first is was the student in fact delinquent in his studies or unfit
for the practice of medicine? The second question is, were the school
authorities motivated by malice or bad faith in dismissing the
student, or did they act arbitrarily or capriciously? Generally, the
first question is not a matter for judicial review.
  
Mustell v. Rose, 282 Ala. 358, 211 So.2d 489, 493 (Ala.), cert.
denied, 393 U.S. 936, 21 L. Ed. 2d 272, 89 S. Ct. 297 (1968).

We conclude, contrary to the appellant's assertion, unsuitability to
practice medicine, in the context of this case, is an academic reason
supporting dismissal. There is no suggestion of any disciplinary
considerations in the record before us that cause us to believe this
was a disciplinary dismissal. Therefore, the analysis of the amount
and type of notice Mr. Alanis was due is appropriate in the context of
academic dismissals.

The United States Supreme Court has distinguished between disciplinary
and academic dismissals and found that in the case of academic
dismissals, fewer procedural requirements are necessary in order to
protect an individual's rights. Horowitz, 435 U.S. at 86. This is
because, unlike in the disciplinary dismissal situation, a hearing may
be useless in determining the truth concerning scholarship. Id. at 88.
Thus, the Horowitz Court held that the fourteenth amendment due
process clause did not require any hearing before a medical school
dismissed a student for academic reasons. Id. at 86.

Mr. Alanis argues that "it is agreed by everybody, and the summary
judgment evidence is conclusive that, prior to his termination, he did
not receive any notice of alleged academic deficiencies, and rather,
the above quoted dismissal letter [of August 15, 1986] was the only
notice that the appellant received to inform him of any alleged
academic deficiencies." He argues that the appellees did not inform
him of the nonacademic reasons for his dismissal. However, as noted
above, unsuitability to practice medicine is an academic reason under
the facts of this case.

Nevertheless, Mr. Alanis' assertion of no notice is simply not
supported by the record. Mr. Alanis was aware of his poor academic
performance during his first year. He was aware of the possibility of
dismissal, and discussed this with several of the deans. He took a
leave of absence because his health was interfering with his ability
to perform adequately in medical school. He knew he had missed several
final exams and make-up exams, and was aware of the impact that could
have on his academic career.

Against the backdrop of due process, notice does not necessarily have
to be written communication. Rather, in order to satisfy due process
prior to dismissal of a student for deficiencies in meeting minimum
academic performance, school authorities need only advise the student
in any form. Gaspar v. Bruton, 513 F.2d 843, 851 (10th Cir. 1975). All
that is required is that the student be made aware, prior to
termination, of his failure or impending failure to meet those
standards. Id. Mr. Alanis received such notice in the August 26, 1986,
letter, in his various meetings with the administration, and with his
conversations with Dr. Wood.

Under the Supreme Court's standards discussed above, Mr. Alanis was
afforded adequate procedural due process throughout his conflict with
the medical school. We find no violation of Mr. Alanis' right to
procedural due process under the fourteenth amendment.
  
Greenhill v. Bailey Liberty Interest 

Mr. Alanis argues that he is entitled to a greater degree of
procedural due process  because his liberty interest in pursuing a
medical career has been compromised by the appellees' distribution of
Mr. Alanis' "Student Exit Form" containing the notation that Mr.
Alanis is "unsuitable to practice medicine."

As reflected In the facts of Greenhill v. Bailey, in 1973, when Mr.
Greenhill was dismissed from the University of Iowa College of
Medicine for various academic failures, the University notified the
Liaison Committee of the Association of American Medical Colleges in
Washington, D.C. that Mr. Greenhill lacked intellectual ability or had
insufficiently prepared his course work. Greenhill v. Bailey, 519 F.2d
5, 8 (8th Cir. 1975). This information was then freely available to
medical schools all over the country. Id. The eighth circuit held that
in situations such as before it, the plaintiff needed notice and an
opportunity for a meaningful hearing. Id. at 9.

Mr. Alanis argues that his situation is governed by the Greenhill 
decision and suggests that this Court order his reinstatement to
medical school or an appropriate administrative hearing. Mr. Alanis
points this Court to his second supplemental affidavit of plaintiff to
support plaintiff's motion for partial summary judgment as his
evidence that the information as to his unsuitability to practice
medicine was communicated to others without his notice. We note that
although the order granting leave to file Mr. Alanis' supplemental
affidavit was not signed until August 20, 1991, the docket sheet
notations indicate that the court had this pleading when it considered
the cross-motions for summary judgment. We will consider it as well.

We initially note that in Greenhill, the school administration
automatically communicated to the Liaison Committee of the Association
of American Medical Colleges in Washington, D.C., that Mr. Greenhill
lacked intellectual ability or had Insufficiently prepared his course
work. Id. at 8. In this case, under 20 U.S.C.  1232g (West 1986 &
Supp. 1992), the Family Educational Rights and Privacy Act, without
authorization from Mr. Alanis, the Medical School could not
communicate any information other than that he had withdrawn from
school. The Greenhill court held that it was the school's action
"denigrating Greenhill's intellectual ability" which had deprived him
of his liberty interest. Id. The court held that Mr. Greenhill should
have been notified in writing of the alleged deficiency in his
intellectual ability. Id. at 9. Further, Mr. Greenhill was never
afforded an opportunity to appear before the University officials, and
the written communication available to Mr. Greenhill alone was
insufficient to provide him with procedural due process. Id. The court
did not hold that a trial-type procedure was required, but rather
"informal give-and-take between the student and the administrative
body dismissing him" would be appropriate. Id.

The fifth circuit has held that "liberty is not infringed by the mere
presence of derogatory information in confidential files and the
government has not infringed this liberty unless it perpetuates untrue
charges." Sims v. Fox, 505 F.2d 857, 864 (5th Cir. 1974) (en banc),
cert. denied, 421 U.S. 1011, 44 L. Ed. 2d 678, 95 S. Ct. 2415 (1975)
(emphasis in original); see also Board of Regents of State Colleges v.
Roth,  408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972);
Ortwein v. Mackey, 511 F.2d 696, 698-99 (5th Cir. 1975).

Mr. Alanis did appear before the SEPC and had another opportunity to
appear which he declined. He also met another time with Drs. Wood,
Gleason, and McNeese and with Ms. Carver. Mr. Alanis had discussed his
academic problems with several of the school officials. The SEPC had
required Mr. Alanis to seek psychiatric counseling to help him
overcome his problems in dealing with medical school. Dr. McNeese
testified that she had not communicated the information from the
student eat form to anyone, nor is she aware of any other publication
of the form. She testified that such information would come from the
registrar's office, if at all. Mr. Alanis' affidavit indicates he gave
his permission to the University to send his record to his
Congressman, to Baylor Medical School, and to the Health Science
Center in San Antonio. The record in his affidavit of his request to
Baylor shows not that he was totally rejected by Baylor College of
Medicine, only that they would not consider him as a second year
student. He would have to apply as an entering student.  The record
also does not indicate that he was refused admission to the Health
Science Center in San Antonio, nor does it show he was harmed when he
permitted his congressman to have a copy of his records.

To raise a liberty interest violation by the State, the information
made public must impose a stigma or other disability that forecloses
Mr. Alanis' freedom to take advantage of other employment
opportunities. See Campos v. Guillot, 743 F.2d 1123, 1125 (5th Cir.
1984). He must further show that he did not receive a meaningful
hearing to clear his name. Id. The record reflects that Mr. Alanis had
an opportunity for a hearing and to give input to the SEPC on other
occasions. The minutes of the September 29, 1986, meeting, which Mr.
Alanis attended, reflect the following:
  
Mr. Alanis appeared before the Committee. Dr. Gleason told him that
the Committee had asked him to meet with them to give him an
opportunity to shed light on any of the information in his record. He
read to Mr. Alanis from the minutes of the September 17 meeting the
following excerpt:
  
"Dr. Gleason read Dr. Wood's memorandum to Dr. McNeese summarizing Art
Alanis' record and the reasons for his dismissal, copies of which had
been distributed to the members. Dr. Bulger had asked for the
Committee to supply additional information to him concerning the
background for Mr. Alanis' dismissal. The letter informing him of the
Committee's action stated that the decision was based on his unexcused
absence from the Physiology exam, resulting in an irremediable
incomplete in that course, which he had previously failed, and his
other failing grades from his first attempt at the first year. Dr.
Bulger felt that Mr. Alanis could produce sufficient evidence in a
courtroom to excuse his absence from the examination. In his
memorandum Dr. Wood reviewed Mr. Alanis' record of physical
complaints, missed examinations, and academic difficulties and
concluded that Mr. Alanis' academic record and his behavior in dealing
with his academic difficulties were grounds for his not continuing in
medical school."
  
Dr. Gleason asked Mr. Alanis if he had any requests to make and told
him that this was his opportunity to address the Committee. Mr. Alanis
said that he was trying to attend classes on a regular basis, he had
taken tests in Pathology and Pharmacology, and had passed the
Pharmacology test but was not sure about the Pathology test.
  
Mr. Alanis said he had a copy of his blue book and he found that there
were several documents that were not included in the blue book that he
thought were relevant to his case. . . . Dr. McNeese explained to Mr.
Alanis that at least some of the documents were in the Student Affairs
office and accessible to the Committee although they had not been
inserted in the blue book. Mr. Lindloff told Mr. Alanis that not every
document was appropriate to file in the blue book. Dr. Gleason told
Mr. Alanis that if he would submit the documents to the Committee they
would be copied and distributed to the members so they could be
considered at this point. Mr. Alanis declined to do this unless
someone would verify that they had not been in his blue book. Mr.
Lindloff said that that was irrelevant, and suggested that Mr. Alanis
sign a statement to the effect that he was now submitting the
documents to the Committee. Mr. Alanis declined to do so, and said he
needed to consult with Dr. Bulger. There was some discussion about the
possibility of adjourning and reconvening at a later date, but there
was a consensus from the Committee and Mr. Alanis that it would be in
Mr. Alanis' best interest to conclude the matter as quickly as
possible. Dr. Gleason again asked Mr. Alanis if he would release the
documents to the Committee for their consideration before they reached
a decision at the end of the meeting, and Mr. Alanis again declined to
do so without verification that the documents had not been in his blue
book.
  
Mr. Alanis said that he was the sort of person who had some 'bad
breaks' but that his problems were genuine and that he had worked very
hard to overcome them. He said that he was an honest person and
'principled to an extent.' He felt that there was a lot of evidence
that he worked hard, and that Dr. Caprioll, his advisor, would testify
concerning his character. He said that if given another chance he
would leave willingly if he had another problem. He said that Dr.
McNeese and Ms. Carver had recommended that he see a psychiatrist,
which he had done, but that he did not return after his initial visit
because he did not have a psychiatric problem.
  
He said that he was puzzled as to why the grounds for his dismissal
had been changed from academic, as stated to him in his letter of
dismissal from Dr. Wood,  to his behavior. Mr. Lindloff said that Dr.
Bulger had requested the Committee to consider other issues that were
raised in his meeting with Mr. Alanis.
  
Mr. Alanis was asked if he had anything further to add. As he did not,
he left the room.
  
Dr. McLaughlin made a motion, seconded by Dr. MacFadyen, that the
Committee restate its decision reached at the September 17 meeting
because no evidence had been presented that would support any change
in its position that Mr. Alanis' academic difficulty and behavior in
responding to that difficulty were sufficient reasons for him not to
remain in school. The motion carried unanimously.

As noted above, Greenhill makes it clear that the court does not
require a trial-type procedure in order to protect a student's liberty
interest, but rather an informal give and take is all that is
required. Greenhill, 519 F.2d at 9. We find that, as a matter of law,
Mr. Alanis was given sufficient opportunity throughout his dismissal
process to interact with the administration officials such that there
is no violation of his liberty interests.
  
Substantive Due Process 

Mr. Alanis' fifth amended petition alleges that all defendants acted
in an arbitrary and capricious manner and that Dr. McNeese's actions
were motivated by maliciousness and ill will. Substantive due process
challenges strike at the decision itself and not at the procedures
afforded the student in the academic decision-making process. See
Greenhill, 519 F.2d at 5.

As proof of his allegations of substantive due process violations, Mr.
Alanis alleges he had an agreement with Dr. Chappel regarding the way
his grades would be handled, in light of his leave of absence.
However, assuming arguendo there was an agreement, it is of no moment.
The record reflects Mr. Alanis' final application for a leave of
absence came in April 1984, after the 1983-84 academic year was
completed, and he had failed his final exams. Mr. Alanis further
alleges that Dr. McNeese's actions towards him were retribution
because he challenged her authority. Mr. Alanis alleges that Dr.
McNeese's behavior substantially departed from accepted academic norms
and was not an exercise of her professional judgment.

Mr. Alanis also seems to argue that because the first part of medical
training is classroom instruction, the only measure of whether a
person is successful should be the grade awarded for that class. It
appears he is distinguishing his case from other substantive due
process cases because those involved clinical courses where the
evaluation was more subjective. He believes that the SEPC's evaluation
of him was subjective, not based solely on the grades he received,
thus the decision to dismiss him was inappropriate. However, we note
the plaintiff in the Ewing case had "marginally passing grades, a
number of incompletes and make-up examinations, and repeated courses,"
and also failed the National Board of Medical Examiners test. Eiland,
764 S.W.2d at 834 (citing Board of Regents of the University of
Michigan v. Ewing, 474 U.S. 214, 219, 88 L. Ed. 2d 523, 106 S. Ct. 507
(1985)). In analyzing that dismissal, the Supreme Court noted that a
faculty committee is at liberty to use all of the information it has
available to it when making its decision. See Horowitz, 435 U.S. at
82-83.

The Supreme Court, in Ewing, articulated the standard against which
substantive due process claims in academic settings were to be
analyzed. Ewing, 474 U.S. at 226-29. In 1989, that standard was
adopted by this Court in Eiland  v. Wolf, 764 S.W.2d at 835-36. The
Ewing Court determined that it was not in a position to substitute its
judgment for that of a faculty committee, which "was uniquely
positioned to observe [appellant's] judgment, self-discipline, and
ability to handle stress, and was thus especially well-suited to make
the necessary subjective judgment of his prospects for success in the
medical profession." Ewing, 474 U.S. at 227.

Since the Ewing decision, when a court evaluates a substantive due
process claim based on allegedly arbitrary action, it "may not
override the faculty's professional judgment in academic matters
unless 'it is such a substantial departure from accepted academic
norms as to demonstrate that the person or committee responsible did
not actually exercise professional judgment.'" Eiland, 764 S.W.2d at
835 (citing Ewing, 474 U.S. at 225). The appellate courts have thus
"independently reviewed the record for minimum professional judgment
evidence; once found, such evidence was considered sufficient to
justify judgment against the student as a matter of law." Eiland, 764
S.W.2d at 835 (and cases cited therein). In order to have a cause of
action for substantive due process violations, Mr. Alanis must show
that Dr. McNeese's actions were arbitrary and capricious; that is,
that there was no rational basis for the University's decision, or
that the decision to dismiss was motivated by bad faith or ill will
unrelated to his academic performance. Ewing, 474 U.S. at 220-26.

If any rational basis exists, even though there is also evidence of
arbitrary action, the trial court must uphold the faculty committee's
decision unless it finds that the decision was "such a substantial
departure from accepted academic norms as to conclusively demonstrate
that the person or committee responsible did not actually exercise
professional judgment." Id.; see also Tobias v. University of Texas,
824 S.W.2d 201, 210 (Tex. App.--Fort Worth 1991, writ denied),
petition for cert. filed, 61 U.S.L.W. 3303 (U.S. Sept. 29, 1992) (No.
92-574). Where a reviewing court has found minimum evidence of
professional judgment, such evidence has been considered sufficient to
justify judgment against a student as a matter of law. Tobias, 824
S.W.2d at 210; see Levi v. University of Texas at San Antonio, 840
F.2d 277, 280 (5th Cir. 1988);  Clements v. Nassau County, 835 F.2d
1000, 1004-1005 (2d Cir. 1987) (in cases involving academic decisions,
university is entitled to summary judgment if evidence exists to show
rational basis for decision).

In this case, the record before us contains ample evidence that Mr.
Alanis was experiencing great difficulty in successfully completing
the medical school curriculum. There is evidence from both sides that
Mr. Alanis had missed exams, failed exams, and, in the three years he
had attended U.T.H.S.C., had not satisfactorily completed all of the
first year's courses. Using the standard before us, we find that the
summary judgment evidence establishes, as a matter of law, the
appellees exercised their professional judgment and did not act in an
arbitrary and capricious manner when the SEPC determined that Mr.
Alanis was unsuitable for the practice of medicine.
  
Section 1983 Cause of Action 

In Mr. Alanis' fifth amended petition, he seeks damages against all
defendants based upon 42 U.S.C.  1983, claiming their actions were
arbitrary and capricious.

In order to maintain a section 1983 cause of action, a plaintiff must
show two essential elements: first, that the defendants have deprived
him of a right secured by the Constitution; and second, that this
deprivation has occurred while the defendants were acting under color
of state law. Broadway v. Block, 694 F.2d 979, 981 (5th Cir. 1982);
Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 510 (5th Cir. 1980),
cert. denied, 499 U.S. 953 (1980). As we have previously found the
defendants' actions were not arbitrary or capricious, Mr. Alanis was
not deprived of a right under the Constitution. Therefore, we find
summary judgment was appropriate.
  
Qualified Immunity 

Notwithstanding our finding above, the defendants would also have
available to them the doctrine of qualified immunity. To protect
officials from groundless section 1983 lawsuits, the federal courts
have recognized what is known as qualified good faith immunity. Bagg
v. University of Texas Medical Branch, 726 S.W.2d 582, 587 (Tex.
App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). The general rule
is that government employees "have a common-law immunity from personal
liability while performing discretionary duties in good faith within
the scope of their authority." Carpenter v. Barner,  797 S.W.2d 99,
101 (Tex. App.--Waco 1990, writ denied); Bagg, 726 S.W.2d at 586. This
immunity is based on the public policy that encourages public
employees to perform their duties without fear of personal liability
for negligent or improper performance. Id. Thus, if the appellees were
performing discretionary duties in good faith, they will not be liable
for torts committed while performing these duties. See Lazaro v.
University of Texas, 830 S.W.2d 330, 332 (Tex. App.--Houston [14th
Dist.] 1992, writ denied).

Discretionary duties involve acts requiring personal deliberation,
decision, and judgment on the part of the employee. Baker v. Story,
621 S.W.2d 639, 645 (Tex. Civ. App.--San Antonio 1981, writ ref'd
n.r.e.). A state employee who "is required to pass on facts and
determine his actions by the facts found" is performing duties that
are "quasi-judicial" in nature and are discretionary. Torres v. Owens,
380 S.W.2d 30, 33-34 (Tex. Civ. App.--Corpus Christi 1964, writ ref'd
n.r.e.). When state employees are acting within the scope of their
authority, performing discretionary duties in good faith, they are
entitled to the defense of qualified immunity. See Lazaro, 830 S.W.2d
at 332-33.

In order to overcome this defense, Mr. Alanis must show that the
appellees' conduct violated clearly established statutory or
constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct.
2727 (1982); Brown v. Texas A & M University, 804 F.2d 327, 332 (5th
Cir. 1986). Mr. Alanis argues that since the Ewing and Horowitz
decisions had been determined, his due process rights had been
established However, as noted above, we find there were no violations
of Mr. Alanis' due process rights. Thus, we find, as a matter of law,
that the actions of the University officials did not violate the
clearly established statutory or constitutional rights of Mr. Alanis.
Therefore, the actions of all the appellees are protected by the
doctrine of qualified immunity.

The appellant's points of error are overruled. 

The judgment of the trial court is affirmed.

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