The Sixth Circuit Court of Appeals just reversed a lower court in a university plagiarism case against a disabled student. The school expelled a medical student over accusations of cheating. It ignored two doctors and the student’s own protests that the behavior he was accused of was a manifestation of his disability, not cheating.

Sandra Emerick, Northeast Ohio Medical University’s chief officer of student affairs, went out of her way to expel the student. As summarized in the case, she did not act as an unbiased factfinder. She acted like a quasi-prosecutor–a corrupt one at that. This included mischaracterizing the statements of the student’s own doctors and meeting in secret with the campus court that expelled him.

Courts almost always defer to university decisions in academic matters, even when they are unfair. Not so here. The case is therefore unusual. The unfairness of universities may be eroding the deference showed by courts to the campus courts and their quasi prosecutions.

There are five important lessons from Northern Ohio Medical University for students with disabilities:

  • You don’t need to apply through the school disability services office for a reasonable accommodation to sue under the Americans with Disabilities Act. The
    student argued that the school knew about his disability and took action against him on account of his disability. That was enough.
  • Nevertheless, the accusation of plagiarism could have been easily avoided with a simple accommodation—had the student just asked. Because you can sue to
    defend your rights doesn’t mean you should let it get that far. Get your accommodations in place!
  • Overzealous university administrators may and will interpret symptoms of your psychiatric condition as evidence that you are cheating, lying, or worse.
    This is discrimination.
    Overzealous administrators look for reasons to find “misconduct” and may even mischaracterize evidence to do so.
  • The United States appellate courts are increasingly scrutinizing colleges and universities’ unfair and biased proceedings, even in areas of their core
    competency.

A Process Stacked against the Student

Northeast Ohio Medical University dismissed a student, accusing him of cheating. This would ordinarily have ended his medical career. But he sued for violations of the Americans with Disabilities Act (ADA) and violation of his due process rights under the 14th Amendment.

A university’s judgment in matters of academic performance is usually considered its core competency. Courts have long recognized the university’s discretion to decide such matters with no interference. Yet the medical school treated the student in such an unfair and high-handed manner that the Court of Appeals reversed a lower-court decision that did just that.

The student could have avoided the entire controversy by putting in place reasonable accommodations early, but changes in his treatment regime made this difficult for him. He had a cognitive disability which he treated with Ritalin. In his first year of medical school, experienced a new side effect, so he discontinued the Ritalin. While he adjusted, he failed a class. Despite passing fourteen out of fifteen classes in his first year of medical school, the school forced him to repeat the entire academic year (and forfeit his first year’s tuition).

In the meantime, a new medication did not completely control the student’s fidgeting, a symptom of his condition. In his repeat year, the school administration observed him fidgeting during a test. A student conduct administration swung into action. She “threw the book at him.” Despite being aware of his disability and its symptoms, the school accused him of cheating. The administration mistook his fidgeting for peering over the shoulder of a nearby student.

There was plenty of evidence that he did not cheat. For example, he scored better on the test than the student he supposedly cheated from. In most cheating, the opposite happens. The cheater does not have the knowledge to know what is right or wrong.

Numerous students also told the school it was impossible to read information off of each other’s laptop screens during the test. The school administrator didn’t care. The school insisted that video footage of the fidgeting proved the cheating.

An arbitrary process followed, in which the school conduct officer acted as a would-be prosecutor before a campus court convened for “academic and professional progress.”

Two of the student’s doctors stated that the fidgeting caught on video was caused by the student’s disability, not “cheating.” The conduct administrator interviewed the doctors. But the administrator mischaracterized what was said in these interviews in secret submissions to the campus court. She even falsely said that one doctor fabricated her assessment based on what the student’s parents told her—which the doctor vehemently denied doing.

The Medical School refused to consider this and other evidence presented in the student’s defense. To top it off, the school kept from him the evidence used against him, which the campus conduct officer presented at a secret meeting.

The hearing panel also challenged the student about why he had not requested a disability accommodation for the test.

Only after the school pronounced him guilty of cheating did the student learn of the conduct administrator’s full report and all of the “evidence” supposedly collected against him. He then tried to rebut this evidence in an “appeal,” but the school forbid the additional evidence. The campus court even issued an instruction that a statistical analysis of test answers the student prepared had to be “accord[ed] no weight.” It showed that the prevalence of the same answers with the other student’s exam were not statistically distinguishable from answers given by students who could not have cheated. The university simply did not want to hear it.

The Lower Court Supports the University but Gets Reversed

The student sued in Federal District Court, and the lower court backed the university.

Although the appeals court recognized the broad discretion universities have in academic matters; it insisted that a state institution cannot run roughshod over students’ interests in their education. There must be due process of law. “It is the Constitution, not a university handbook that establishes what processes due.”

The court also rejected the university’s protests that its quasi-plagiarism trial was an exercise in academic assessment. What the school did, the court pointed out, was play detective, prosecutor, judge, and jury. The medical school and its conduct administrator were purporting to engage in an objective evaluation of student conduct, not assessing his knowledge of the subject.

This was not “the analytical expertise of professional academicians.” It was (in this case, an unfair and arbitrary) investigation by a school administrator—who was not a professor.

In other words, the medical school crossed the line from evaluating the student’s knowledge. It entered the terrain of assessing his guilt or innocence, which should be (but was not) based on a fair, unbiased evaluation of evidence.

Where a school conducts a “disciplinary inquiry,” this “requires a factual determination as to whether the conduct took place or not” and deserves “more rigorous protections under the Due Process Clause.”

By holding secret hearings, banning evidence of the student’s innocence, maintaining secret files of supposed evidence against him, and mischaracterizing evidence from his doctors; the medical school exposed its campus court as biased and unfair.

Five takeaways

The Sixth Circuit Court of Appeals ruled that the student could sue the university under the Americans with Disability Act (ADA) and under the 14th Amendment. The case now returns to the Federal District Court. Potentially, it can proceed to trial.

There are five important takeaways.

First, it is significant that the student can proceed with his ADA claim. Schools often argue that students must apply for reasonable accommodations through their disability services offices. But the law says that discrimination on the basis of disability is illegal so long as the university knows of the student’s disability and discriminates against him or her anyway. Title II of the act covers state universities, and Title III of the act covers private universities.

Here the student did not apply for reasonable accommodation. Nevertheless, the school knew of his disability, but it disregarded his repeated protests that it was the disability, not “cheating,” that the university captured on video.

The student will now have a chance to argue that the school and its conduct administrator simply willfully disregarding information about his disability and punished him anyway.

Second, the student should have applied for a reasonable accommodation anyway! The student has now been tied up in litigation for years. This is a travesty. A simple disability accommodation, for example, one permitting him to take a test in a private environment, might have spared all the trouble. He would be a doctor today.

Furthermore, if he had applied for reasonable accommodation, and the university had denied him, this would have shot off a warning flare. It would have signaled that the medical school did not intend to “play fair” with disability rights.

It’s always better to force this kind of confrontation earlier, over a reasonable accommodation, rather than later, over an expulsion—if necessary, with the assistance of an attorney.

Third, this is yet another case in which overzealous university administrators, viewing themselves as campus prosecutors, discriminate against students with disability in the process. Evidence of disability, in this case the student’s compulsive fidgeting, was misconstrued (whether intentionally or not) as evidence of his guilt.

Few students think about asking for accommodations in conduct proceedings. By the time many get to college or university, they are so successful that they do not believe they need accommodations. They are usually very capable people, or they would not be there.

But the quasi-campus judiciaries subject students to pressure that they have not confronted before. And accommodations may also be necessary to protect the evidence. You need to make sure that symptoms of your condition are not taken as false evidence that you are avoiding questions, not giving a “straight” answer, lying, or expressing discomfort at presumed “culpability.”

Experienced higher education lawyers can help you put in place disability accommodations that come to your defense in the process. These measures are different from disability services for academic accommodations.

Fourth, Northeast Ohio Medical School is another example in which a campus conduct officer stepped way out of bounds. She interpreted her job, not as a student support role, but in the role of a quasi-prosecutor in the campus “judiciary.”

Universities are always quick to defend their policies and the host of administrators that they hire like Sandra Emerick’s, the “chief officer of student affairs” at Northeast Ohio Medical University. Schools claim these administrators support campus “community”—one expulsion at a time. What is clear in the facts as presented in Northeast Ohio Medical University is that Ms. Emerick began to fancy herself a prosecutor.

It is especially important to get experienced higher education attorneys involved early if you are facing an overzealous campus prosecution. Attorneys can help you protect your education, document the violation of your rights, and resolve disciplinary disputes before they result in adverse consequences.

Fifth, and finally, Northeast Ohio Medical University shows that federal courts of appeal are beginning to scrutinize high-handed university disciplinary actions.
Fortunately for the student in this case, Northeast Ohio was a state school. The student could claim due process rights and constitutional protections under the 14th Amendment. Students at private universities often have fewer options, but they can still challenge their universities through state contract law.