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Bittle v. Oklahoma City University
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PAUL BRANDON BITTLE, Plaintiff/Appellant, vs. OKLAHOMA CITY UNIVERSITY, a
not-for-profit corporation, and the BOARD OF TRUSTEES OF OKLAHOMA CITY
UNIVERSITY, Defendants/Appellees.
Case No. 93,684
COURT OF CIVIL APPEALS OF OKLAHOMA, DIVISION THREE
2000 OK CIV APP 66; 6 P.3d 509; 2000 Okla. Civ. App. LEXIS 22; 71 O.B.A.J. 1651
April 21, 2000, Filed
SUBSEQUENT HISTORY: [***1] Released for Publication April 21, 2000.
PRIOR HISTORY: APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA.
HONORABLE DANIEL L. OWENS, JUDGE.
DISPOSITION: AFFIRMED.
COUNSEL: Elizabeth J. Bradford, Midwest City, Oklahoma, For Appellant.
James C. Chandler, G. David Ross, B. Gore Gaines, Lytle, Soule & Curlee, P.C.,
Oklahoma City, Oklahoma, For Appellees.
JUDGES: Opinion by Larry Joplin, Judge. ADAMS, J., and BUETTNER, J., concur.
OPINIONBY: Larry Joplin
OPINION: [**511]
Opinion by Larry Joplin, Judge:
[*1] Plaintiff/Appellant Paul Brandon Bittle (Bittle) seeks review of the trial
court's order granting judgment to Defendants/Appellees Oklahoma City
University, a not-for-profit corporation (OCU), and the Board of Trustees of
Oklahoma City University (Board), in Bittle's action to recover damages for
alleged fraud, breach of contract and negligence after OCU dismissed Bittle for
academic reasons. In this proceeding, Bittle asserts judgment for OCU and Board
should be reversed because (1) his initial petition stated a valid claim for
breach of contract, (2) the evidence on summary judgment relative to his claims
was conflicting, and (3) the trial court erred in denying him both further
discovery prior to ruling and permission [***2] to amend to cure any defect in
pleading.
[*2] OCU is a private university, organized as a not-for-profit corporation and
governed by Board. OCU admitted Bittle to the OCU Law School for the fall
semester of 1997. But, when Bittle's cumulative grade-point average fell below
the minimum required by OCU academic standards after the fall semester of 1998,
OCU dismissed him. Pursuant to OCU policy, Bittle sought administrative review,
but upon consideration of the matter, OCU denied him relief.
[*3] Bittle then commenced the instant action against OCU and Board. In
particular, Bittle alleged that his constitutional law professor frequently
arrived late for class, discharged class early, or canceled class altogether;
that neither the professor nor OCU provided make-up classes or academic
counseling to assist students as OCU implicitly agreed; and that the failures of
the professor (OCU's agent), OCU and Board in these particulars caused his
academic dismissal. Bittle also alleged that OCU's internal administrative
appellate procedure denied him the fundamental protection of constitutional due
process, including denial of the right to examine the evidence against him, n1
to present evidence [***3] on his own behalf, and even the right to a hearing at
all. On these facts, [**512] Bittle asserted claims for fraud, breach of
contract, tortious breach of contract, negligence, unjust enrichment and
violation of his right to due process, seeking actual and punitive damages.
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n1 Bittle later averred in response to the motions to dismiss/motion for summary
judgment OCU's denial of his requested access to records -- allegedly destroyed
-- on which OCU relied both in reaching the dismissal decision and in denying
him administrative relief.
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[*4] OCU filed a motion to dismiss, asserting Bittle's failure -- on the alleged
facts of the case -- to state an actionable claim under any legally recognized
theory of recovery. n2 Board filed a motion for summary judgment/motion to
dismiss, asserting no liability -- as OCU's not-for-profit corporate governing
body -- for any OCU act or omission of which Board had no knowledge or in which
Board did not actively participate, and no contractual relationship between
Bittle and Board. n3
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n2 In support of its motion to dismiss, OCU attached a copy of the accreditation
standards promulgated by the Oklahoma Regents of Higher Education, arguing the
Regents to be the only authority with power to redress an accredited
university's sub-standard performance, i.e., the assertion by Bittle of OCU's
violation of the accreditation standards gave rise to no private right of action
by Bittle against OCU.
n3 To its motion for summary judgment/motion to dismiss, Board attached the
affidavit of the Chairman of Board attesting that neither the issues raised by
Bittle, nor review of Bittle's dismissal, had ever been presented to Board. The
Chairman also attested that Board had no contractual relationship with Bittle,
and that the members of Board, either collectively or individually, reaped no
benefit from Bittle's enrollment at OCU, the Board members serving without
compensation.
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[***4]
[*5] Bittle responded to OCU's motion to dismiss, arguing viability of all
claims stated in his petition, or alternatively, in the event a ruling favorable
to OCU, permission to amend to cure any defects in pleading. n4 Bittle also
responded to Board's motion for summary judgment/motion to dismiss, asserting --
in essence -- material facts in controversy concerning each of his legally
recognized claims, precluding summary judgment. n5 On consideration of the
briefs, submitted materials and arguments of the parties, the trial court
granted judgment to OCU and Board. Bittle now appeals, and the matter stands
submitted on the trial court record. n6
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n4 In support, Bittle attached a copy of his petition and an affidavit, in which
he attested to the alleged deficiencies of his constitutional law professor, and
to absence of a program providing academic assistance to OCU students.
n5 Bittle attached a copy of the Regent's accreditation standards, arguing the
standards minimally required OCU to adopt internal procedures affording OCU
students due process.
n6 Rules 4(m), 13(h), Rules for District Courts, 12 O.S. Supp. 1993, Ch. 2,
App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp. 1997, Ch. 15,
App.
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[***5]
[*6] As a general proposition, "the applicable test for appraising the
sufficiency of a pleading challenged for failure to state a claim upon which
relief may be granted teaches that no dismissal may be effected unless it should
appear beyond doubt that the plaintiff can prove no set of facts in support of
the claim which would entitle her to relief." Dyke v. Saint Francis Hosp., Inc.,
1993 OK 114, P7, 861 P.2d 295, 298-299. Stated otherwise, "[a] petition can
generally be dismissed only for lack of any cognizable legal theory or for
insufficient facts under a cognizable legal theory." Miller v. Miller, 1998 OK
24, P15, 956 P.2d 887, 894. n7 Yet, "if [a] dismissal motion also tenders for
consideration materials [outside] the pleadings," the motion to dismiss is
treated and reviewed [***6] as a motion for summary judgment. Dyke, 1993 OK 114,
P7, 861 P.2d at 299.
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n7 See also, Iacampo v. Hasbro Inc., 929 F. Supp. 562, 567 (D.R.I. 1996) ("Like
a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss
invokes a form of legal triage, a paring of viable claims from those doomed by
law.")
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[*7] In this respect, "Oklahoma procedural law dictates that summary judgment is
appropriate only when it appears that there is no substantial controversy as to
any material fact and that one of the parties is entitled to judgment as a
matter of law." Flanders v. Crane Co., 1984 OK 88, P10, 693 P.2d 602, 605; Rule
13(e), Rules for the District Courts of Oklahoma, 12 O.S., Ch. 2, App. More
particularly:
Summary judgment is proper only when there is no genuine issue of material fact.
(Citation omitted.) The burden is on the moving party to establish, through
evidentiary [**513] material attached to the motion for summary judgment, that
no genuine issue as to any material fact exists. (Citation omitted.) Thereafter,
the opposing party must submit a statement of material facts which the party
alleges are controverted and [***7] which are supported by evidentiary
materials. (Citation omitted.)
Wynn v. Avemco Ins. Co., 1998 OK 75, P7, 963 P.2d 572, 574. "[A] summary
judgment ruling must be made on the record actually presented by the litigants,
not on a record potentially possible. (Citation omitted.)" Prudential Ins. Co.
of America v. Glass, 1998 OK 52, P3, 959 P.2d 586, 588. That is, "although the
allegations of the pleadings standing alone may raise an issue of material fact,
summary judgment is not to be denied if other documentation pertinent to the
motions palpably show the absence of such an issue." Weeks v. Wedgewood Village
Inc., 1976 OK 72, P12, 554 P.2d 780, 784.
[*8] On appeal from an order granting summary judgment, we review by a de novo
standard. Prudential Ins. Co. of America, 1998 OK 52, P2, 959 P.2d at 588. That
is, "this Court will examine [the] pleadings and evidentiary materials to
determine what facts are material and whether there is substantial controversy
as to one material fact. (Citation omitted.)" Sperling v. Marler, 1998 OK 81,
P3, 963 P.2d 577, 579. "If [a] substantial controversy [***8] as to any material
fact exists, then summary judgment is improper." Id.
[*9] In the present case, insofar as OCU's motions and Bittle's responses
tendered for consideration evidentiary materials outside the pleadings, the
parties and the trial court treated the motions to dismiss as motions for
summary judgment. Accordingly, we review the trial court's order under summary
judgment standards.
[*10] In two related propositions, Bittle complains the trial court should have
granted him both further discovery prior to ruling and permission to amend his
petition to cure any defects in pleading. As to the further-discovery issue, we
find no affidavit of counsel attesting an inability to respond and need for
further discovery contemplated by Rule 13(d), Rules for the District Courts of
Oklahoma, 12 O.S., Ch. 2, App. n8 In the absence of a specific request for
further discovery supported by an affidavit of counsel attesting to the need
therefor, we cannot say the trial court erred in refusing further discovery.
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n8 "Should it appear from an affidavit of a party opposing the motion that he
cannot for reasons stated present facts essential to justify his opposition, the
court may deny the motion for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to be had or
may make such other order as is just."
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[***9]
[*11] As to the permission-to-amend issue, "the trial court has always possessed
discretion over whether to allow an amendment to a pleading," and "its decision
will not be overturned absent an abuse of that discretion," but "the trial
court's discretion is limited by the provisions of 12 O.S.1991, § 2015(A),
requiring that leave to amend be given freely if justice requires." Prough v.
Edinger, Inc., 1993 OK 130, P8, 862 P.2d 71, 75-76. That is, while the
"'outright refusal to grant leave [to amend] without any justifying reason
appearing for the denial' is an abuse of discretion, . . . there is no abuse if
the court relies on a reason such as 'undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party . . . [or] futility of
amendment.'" Prough, 1993 OK 130, P9, 862 P.2d at 76. n9
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n9 Quoted from Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed.
2d 222 (1962).
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[*12] In denying Bittle's alternative prayer to amend, the trial court in the
present case must have implicitly believed Bittle could [***10] not amend to
state a cognizable claim, i.e., that amendment would be "futile." In order to
determine whether the trial court abused its discretion in denying Bittle's
request to amend, n10 we must consequently first determine whether Oklahoma law
recognizes an actionable tort or contract claim arising out of the relationship
between an educational [**514] institution and a student for the institution's
alleged failure in its educational mission and obligation to its students.
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n10 Shown by the record before us only in one of Bittle's responsive pleadings
to the motions to dismiss/motion for summary judgment.
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[*13] Bittle asserts in four of eight propositions in his petition in error that
his relationship with OCU is predominantly contractual in nature; that the law
of contracts -- ignored by the trial court -- consequently governs the rights
and remedies of the parties; that he presented evidentiary materials arguably
demonstrating OCU's breach of the parties' contract to provide him educational
services in accord with this state's regulatory norms; and that OCU presented no
evidence to the contrary, requiring reversal of the trial court's order. In one
of his two remaining propositions, [***11] Bittle complains the trial court
erred in treating his claims as sounding in tort for educational malpractice.
[*14] The great weight of authority generally holds that the law recognizes no
cause of action for "educational malpractice," either in tort or contract, by a
student against a private educational institution asserting inadequate or
improper instruction. See, e.g., Regents of the University of Michigan v. Ewing,
474 U.S. 214, 225, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1975); Swidryk v. St.
Michael's Medical Ctr., 201 N.J. Super. 601, 493 A.2d 641 (N.J. Super. 1985);
Paladino v. Adelphi University, 89 A.D.2d 85, 454 N.Y.S.2d 868 (N.Y. App. 2d
Dept. 1982). The courts uniformly reason that such a claim runs afoul of
established public policy which both accords educational institutions broad
discretion in matters purely academic, particularly in the evaluation of student
performance, and directs judicial non-interference in decisions within that
discretion. Id. As the New Jersey Superior Court analyzed the obstacles inherent
in application of a tort theory of recovery:
. . . For one, the conflicting theories of the science [***12] of pedagogy
prevents the construction of a workable rule of care. In other words, different
but acceptable scientific methods of academic training make it unfeasible to
formulate a standard by which to judge the conduct of those delivering the
services. Second, the nature of the claim prevents a finding of legal causation.
For example, failure in schools could stem from a variety of factors including
the student's physical, neurological, emotional, cultural and environmental
background, as well as the actual system itself. Lastly, school systems are
already beset by social and financial problems for which no solution is yet
available. To expose the schools to liability in light of the above policy
considerations would be an undue burden on society. (Citation omitted.)
. . .
[Moreover:]
To entertain a cause of action for "educational malpractice" would require the
courts not merely to make judgments as to the validity of broad educational
policies -- a course we have unalteringly eschewed in the past -- but, more
importantly to sit in review of the day-to-day implementations of those
policies. Recognition in the courts of this cause of action would constitute
blatant [***13] interference with the responsibility for the administration of
the . . . school system. . . . (Citation omitted.)
Swidryk, 493 A.2d at 643. On this rationale, decisions from other states in the
main hold where a student is dismissed from a private educational institution
for academic reasons and brings suit asserting improper or inadequate
instruction, no cause of action either in tort or contract arises. "Liability of
private school or educational institution for breach of contract arising from
expulsion or suspension of student," 47 A.L.R.5th 1, 89, § 23 (1997).
[*15] That said, however, we find some authority which suggests that an
educational institution's brochures, policy manuals and other advertisements may
form the basis of a legally cognizable contractual relationship between the
institution and its students. See, e.g., Guckenberger v. Boston University, 957
F. Supp. 306, 318 (D. Mass. 1997). Consequently, where the pleadings or evidence
demonstrate some specific, identifiable agreement for an educational
institution's provision of particular services to its students and an arguable
breach of that specific agreement, [***14] the courts of many jurisdictions --
apparently either as outside of or an exception to the general public policy bar
to "educational malpractice" claims -- recognize [**515] presentation of a
potentially viable breach of contract claim. See, e.g., Cencor, Inc. v. Tolman,
868 P.2d 396 (Colo. 1994); Ross v. Creighton University, 957 F.2d 410 (7th Cir.
(Ill.) 1992); Squires v. Sierra Nevada Educ. Foundation, 107 Nev. 902, 823 P.2d
256 (Nev. 1991).
[*16] In the present case, Bittle alleged no specific agreement with OCU for the
provision of particular educational services beyond the provision of an adequate
legal education. While Bittle tangentially argues OCU's own internal policies
and the accreditation standards for Oklahoma state educational institutions
establish a baseline standard of performance below which a breach of contract
claim will lie, we discern no intent -- either in Art. XIII-A, § 4, of the
Oklahoma Constitution n11 or in 70 O.S. §§ 4101, et seq., § 4103 n12 granting to
the State Regents of Higher Education authority to regulate and accredit private
educational institutions of Oklahoma -- to recognize a private right [***15] of
action for the redress of a private educational institution's alleged
substandard performance under the academic accreditation benchmarks of this
state. See, e.g., Walker v. Chouteau Lime Co., Inc., 1993 OK 35, PP3-7, 849 P.2d
1085, 1086; Holbert v. Echeverria, 1987 OK 99, P7, 744 P.2d 960, 963. See also,
Swidryk, 493 A.2d at 644. n13
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n11 "Private, denominational, and other institutions of higher learning may
become co-ordinated with the State System of Higher Education under regulations
set forth by the Oklahoma State Regents for Higher Education."
n12 "A private educational institution shall be accredited under rules
promulgated and adopted by the Oklahoma State Regents for Higher Education
unless such institution is accredited by a national or regional accrediting
agency which is recognized by the Secretary of the United States Department of
Education as a reliable authority as to the quality of education or training
offered by institutions of higher education for the purposes of the Higher
Education Act of 1965, [ 20 U.S.C.A. § 1001 et seq] as amended."
n13 In rejecting this same argument in a case brought by a medical student
expelled for violation of school standards, the Court there said:
As a general rule courts will not interfere with purely academic decisions of a
university. (Citation omitted.) The New Jersey courts should not be required to
sit in day to day review of the academic decisions of a graduate medical
education program. This function is best left to the state board of medical
examiners, the board of higher education and the Advisory Graduate Medical
Education Council of New Jersey.
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[***16]
[*17] In this respect, we are persuaded by the overwhelming weight of authority
from other jurisdictions that, absent a specific, identifiable agreement for the
provision of particular services, the public policy of this state similarly
militates against recognition of a claim by a student against a private
educational institution arising from the institution's alleged improper or
inadequate instruction however denominated -- either in tort or contract -- for
"educational malpractice." Notwithstanding his protestations to the contrary,
all of Bittle's claims for fraud, breach of contract, tortious breach of
contract, negligence, and unjust enrichment commonly allege a willful or
negligent failure of OCU to provide him an adequate legal education as OCU
implicitly agreed by admitting him and accepting his payment of tuition, and
Bittle has failed to identify or present evidence of any OCU brochure, policy,
advertisement or other matter which might reasonably establish a specific
agreement for the provision of particular services -- beyond the provision of
basic education services -- as to render OCU's failure in some enumerated
particular actionable as a breach of contract. We therefore [***17] hold Bittle,
in his alternative tort and contract claims, presented neither any recognized
legal theory of recovery, nor sufficient facts under any recognized legal
theory, and conclude the trial court properly granted judgment to OCU and Board
on Bittle's claims of fraud, breach of contract, tortious breach of contract,
negligence, and unjust enrichment.
[*18] As to Bittle's due process claim, we first note that where state law
guarantees a right to a public education upon payment of tuition, a property
interest protected by the due process clause of the Fourteenth Amendment to the
United States Constitution may arise. Harris v. Blake, 798 F.2d 419 (10th Cir.
1986); Gaspar v. Bruton, 513 F.2d 843 (10th Cir. 1975). However, "in [**516] the
case of disciplinary action by a private educational institution, the federal
constitutional requirements of due process normally do not apply, since there is
no 'state action.'" Daniel A. Klein, J.D., "Expulsion, Dismissal, Suspension, or
Other Discipline of Student of Public School, College, or University as
Violating Due Process Clause of Federal Constitution's Fourteenth Amendment --
Supreme Court Cases," 88 L. Ed. 2d 1015, [***18] § 2(b); Coleman v. Wagner
College, 429 F.2d 1120 (2nd Cir. (N.Y.) 1970) (unless state has undertaken
regulation of permissible discipline in particular circumstance at issue,
imposition of discipline by private university pursuant to internal procedures
not "state action.") The mere fact that a private educational institution may be
regulated under state law, or receives direct and indirect federal assistance,
does not elevate the acts of the private institution to "state action." Tynecki
v. Tufts University School of Dental Medicine, 875 F. Supp. 26, 33 (D. Mass.
1994). n14
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n14 Relying on Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed.
2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534
(1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L.
Ed. 2d 477 (1974).
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[*19] Moreover, the United States Supreme Court has held that so long as an
educational institution affords a dismissed student some post-dismissal
appellate procedure, the norms of 14th Amendment due process are not offended. Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 85, 98
S. Ct. 948, 55 L. Ed. 2d 124 (1977); [***19] Ewing, 474 U.S. at 225; Harris, 798
F.2d at 419. Indeed, the weight of authority suggests that an educational
institution need not, in the course of the post-dismissal appellate process,
afford the affected student those due process protections ordinarily afforded a
party in the course of the civil or criminal adjudicatory process in order to
survive due process scrutiny. "Right of student to hearing on charges before
suspension or expulsion from educational institution," 58 A.L.R.2d 903, 907 § 2.
n15 Furthermore, at least some jurisdictions recognize that a private college's
dismissal of a student for purely academic reasons, unrelated to any other
misconduct arguably contrary to school policy, is not subject to judicial review
under any circumstance as within the exclusive discretion of the educational
institution. Tedeschi v. Wagner College, 93 Misc. 2d 510, 402 N.Y.S.2d 967, 970
(N.Y. Sup.1975) ("The decision to suspend plaintiff on the basis of her academic
performance cannot be disturbed nor reviewed by this Court as it is within the
purview and discretion of the school to suspend plaintiff on that ground.")
[***20] See also, Swidryk, 493 A.2d at 644. n16
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n15 "The weight of authority is to the effect that no formal hearing is
required, that is, that the hearing need not be conducted with all the
formalities of a trial in a court, even where a statute requires a hearing.
Under this view it has been held not necessary that formal (written) charges be
preferred, that evidence in support of the charges be introduced at the hearing,
that the witnesses be heard under oath, that the student be represented by
counsel, that he be confronted with the witnesses against him, that he be
permitted the privilege of cross-examination as a matter of right, or that the
hearing be governed by the strict rules of evidence." (Footnotes omitted.)
n16 See, footnote 13, supra ("As a general rule courts will not interfere with
purely academic decisions of a university.")
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[*20] In the present case, Bittle does not dispute that his continued enrollment
at OCU was conditioned on maintenance of a cumulative grade point average at or
above that set by OCU policy. In this respect, neither the allegations of
Bittle's petition nor the evidentiary materials offered on summary judgment
establish [***21] any cognizable "state action" either guaranteeing Bittle an
education at OCU, or regulating permissible discipline by OCU, as to invoke
constitutional due process protections. Moreover, Bittle admits OCU afforded him
post-dismissal administrative review, and during that process, the authorities
agree Bittle is not entitled to the full panoply of constitutional due process
protections. Bittle therefore forwards no actionable violation of the due
process clauses of the Fourteenth Amendment to the United States Constitution or
of Art. II, § 7 of the Oklahoma Constitution in the present case.
[*21] Nevertheless, some authority suggests that if a student demonstrates both
(1) some contractual agreement with the private educational [**517] institution
delineating a particular administrative procedure for the resolution of
disciplinary grievances, and (2) the institution's failure to follow its own
procedures, a valid cause of action for breach of the contractually guaranteed
procedure may arise. Klein, 88 L. Ed. 2d 1015, § 2(b), supra; Boehm v.
University of Pennsylvania School of Veterinary Medicine, 392 Pa. Super. 502,
573 A.2d 575, 579 (Pa. Super. 1990) n17; [***22] Corso v. Creighton University,
731 F.2d 529, 533 (8th Cir. (Neb.) 1982). n18
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n17 Private school "students who are being disciplined are entitled only to
those procedural safeguards which the [private] school specifically provides."
n18 The Eighth Circuit ruled that where the school's student handbook
specifically regarded expulsion as serious penalty, and granted a student
subject to a serious penalty the right to appellate hearing after expulsion, but
the school conducted no such hearing, the trial court's order enjoining further
action by the school pending hearing should be affirmed.
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[*22] In the present case, however, Bittle alleged in his petition only that
OCU's internal appellate procedures did not meet constitutional due process
muster, and in response to the motions to dismiss/motions for summary judgment,
Bittle neither identified, nor offered evidentiary materials arguably
demonstrating OCU's breach of any of its administrative post-dismissal appellate
procedures. Insofar as Bittle based his due process claims on denial of those
procedures ordinarily accorded litigants in a judicial proceeding, we have
previously recognized ample authority for [***23] the proposition that a student
subject to a private educational institution's disciplinary action is not
entitled to the full panoply of constitutional due process safeguards. In view
of the public policy considerations counseling against judicial review of a
private educational institution's disciplinary decisions generally, and of
purely academic disciplinary decisions specifically, we consequently conclude
the trial court properly granted judgment to OCU and Board on Bittle's due
process claims.
[*23] The order of the trial court granting judgment to OCU and Board is
therefore AFFIRMED.
ADAMS, J., and BUETTNER, J., concur.
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