Arbitrary & Capricious Academic Decisions

“Arbitrary and capricious” is the sentence your case turns on, and almost nobody explains it before you have already lost the chance to build it.

When a student challenges a grade, a failed clerkship, a promotions-committee decision or an academic dismissal, no court asks whether the school got it right. The only question is whether the decision was so far outside accepted academic norms that nobody was actually exercising judgment at all. That is a high wall. It is not an unclimbable one, and the students who get over it are almost always the ones who understood the standard while the record was still being made.

Where the standard comes from

Two Supreme Court decisions built it.

Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), held that a dismissal for academic reasons requires no hearing. The Court drew a hard line between academic and disciplinary decisions: misconduct findings turn on facts, and facts are what hearings test, but an academic evaluation is an expert judgment about cumulative information and, in the Court’s words, is not readily adapted to the procedural tools of judicial or administrative decisionmaking. Courts, it said, are particularly ill-equipped to evaluate academic performance.

Regents of the University of Michigan v. Ewing, 474 U.S. 214 (1985), supplied the substantive test. Judges asked to review a genuinely academic decision must show great respect for the faculty’s professional judgment, and may not override it 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.

Read that again slowly, because the wording is doing something specific. The test is not whether the judgment was reasonable, or fair, or consistent with how you were treated compared with someone else. The test is whether it was a judgment at all.

What lower courts actually require

Federal courts have turned Ewing into a two-door test. A student must show either that the decision had no rational basis, or that it was motivated by bad faith or ill will unrelated to academic performance. Hines v. Rinker, 667 F.2d 699 (8th Cir. 1981); Clements v. Nassau County, 835 F.2d 1000 (2d Cir. 1987).

The second door matters more than the first, and it is the one students under-use. “No rational basis” is nearly impossible where a file contains any documented academic concern. “Bad faith or ill will unrelated to academic performance” is a factual question, and factual questions are what discovery is for.

The same framework has been applied across the settings where these decisions get made: promotions committees in medical schools, Williams v. State University of New York–Health Science Center at Brooklyn, 251 A.D.2d 508 (2d Dep’t 1998); clinical and residency evaluations, Knapik v. Mary Hitchcock Memorial Hospital, 90 F. Supp. 3d 292 (D. Vt. 2015); and residency terminations, Mares v. Miami Valley Hospital, 671 F. Supp. 3d 812 (S.D. Ohio 2023).

Private schools reach the same place by a different road

A private college is not a state actor, so the Due Process Clause does not apply to it. That sounds like it should matter more than it does. Courts treat the relationship as contractual — the handbook, the catalogue, the enrolment agreement and the academic policies are the terms — and then import an almost identical deference standard into the contract analysis.

The leading statement is Susan M. v. New York Law School, 76 N.Y.2d 241 (1990): absent bad faith, arbitrariness, capriciousness, irrationality, or a constitutional or statutory violation, a challenge to a grade or other academic determination reflecting a genuine substantive evaluation of a student’s academic capabilities is beyond the scope of judicial review. The court gave its reasons openly — reviewing grades would put judges inside the core of educational decisionmaking, and would invite litigation from every unsuccessful student.

State after state has landed in the same place, with local wording:

• Florida. Militana v. University of Miami, 236 So. 2d 162 (Fla. 3d DCA 1970) — a senior medical student’s dismissal for failing to meet academic standards was not capricious, prejudicial or arbitrary.
• California. A decision stands unless it is arbitrary and capricious, not based on academic criteria, and the product of irrelevant or discriminatory factors. Khoiny v. Dignity Health, 76 Cal. App. 5th 390 (2022), applying Paulsen v. Golden Gate University, 25 Cal. 3d 803 (1979).
• Illinois. The student must show the dismissal was without any discernible rational basis. Raethz v. Aurora University, 346 Ill. App. 3d 728 (2004); Urso v. Bradley University, 2023 IL App (4th) 230165.
• District of Columbia. The same deferential standard governs breach of contract and implied covenant claims, not only constitutional ones. Paulin v. George Washington University School of Medicine & Health Sciences, 45 F. Supp. 3d 9 (D.D.C. 2014); Chenari v. George Washington University, 172 F. Supp. 3d 38 (D.D.C. 2016).
• Ohio, North Dakota, Alaska, Louisiana and Washington have adopted substantially the same rule. Organiscak v. Cleveland State University, 116 Ohio Misc. 2d 14 (Ct. Cl. 2001); Abdullah v. State, 771 N.W.2d 246 (N.D. 2009); Richards v. University of Alaska, 370 P.3d 603 (Alaska 2016); Guidry v. Our Lady of the Lake Nurse Anesthesia Program, 170 So. 3d 209 (La. Ct. App. 2015); Enns v. Board of Regents of the University of Washington, 32 Wash. App. 898 (1982).

The practical consequence: do not spend money on whether your school is public or private before understanding that the substantive standard is close to the same either way. Where the public-private line does bite is on procedure — what process you were owed, and what a court can order against whom.

What courts have actually found arbitrary

Successful challenges are uncommon, and the ones that succeed cluster into recognisable categories. These are the openings worth looking for in your own file.

The school never considered whether an accommodation would have worked. The strongest single authority for students. In Wong v. Regents of the University of California, 192 F.3d 807 (9th Cir. 1999), the Ninth Circuit held that before a court defers to a university’s decision to dismiss a disabled student for academic failure, the institution bears the burden of producing a record showing it conscientiously considered all pertinent information — including whether the student could meet the standards with reasonable accommodation. Where it did not, the deference is not there to protect the decision.

The grade was retaliation, not evaluation. A grade assigned because of ill will unrelated to academic performance is not an academic judgment at all. Hines v. Rinker.

The standard applied was never disclosed. Grading against a rubric or criterion the student never saw — no syllabus, an unpublished benchmark, a requirement invented after the fact — is an argument courts have entertained. Seals v. Mississippi, 998 F. Supp. 2d 509 (N.D. Miss. 2014) (argument acknowledged, rejected on those facts).

The evaluator was demonstrably biased. Where the person doing the evaluating had a motive unrelated to your academic performance, the evaluation stops being entitled to respect. Khoiny v. Dignity Health.

There is no record of any deliberation. Ewing itself was upheld because the faculty considered the student’s entire academic career carefully. A decision with no file, no minutes, no review of the record and no identifiable deliberation is the mirror image of the case the Supreme Court approved.

The school did not follow its own published procedure, where that procedure is contractually binding. Guidry. This is the most common defect and the one most often left unpleaded.

What courts have upheld, and why you should know it first

An honest page has to include this half, because the alternative is spending a year discovering it.

Courts have upheld: a dismissal after failing multiple clerkship examinations while already on probation (Williams); a refusal to allow a re-sit after a licensing examination performance at the bottom of the school’s history, following review of the student’s whole record (Ewing); dismissal after steadily deteriorating grades and a full promotions-committee review (Chusid v. Albany Medical College, 157 A.D.2d 1019 (3d Dep’t 1990)); a doctoral dismissal after failing 23 of 24 preliminary examinations (Enns); a failing grade in nursing where faculty documented unsafe practice carefully (Urso); a grading methodology with no formal rubric, absent evidence of arbitrary motive (Guidry); and a refusal to round a borderline grade up for graduation (Susan M.).

The pattern is unmistakable. Where the school documented, deliberated and reviewed, it wins. Where it did not, it becomes vulnerable. Which is exactly why what you put into the file during the internal process determines what is available afterwards.

Professionalism counts as academic, and that is a trap

Students assume that an allegation about behaviour is a disciplinary matter carrying a hearing. In professional programmes it usually is not.

Courts have repeatedly held that unprofessional conduct is an academic matter — and therefore gets the deference and skips the hearing — where the curriculum itself makes professionalism a core component. Mares v. Miami Valley Hospital, 671 F. Supp. 3d 812 (S.D. Ohio 2023) (resident dismissed for rudeness and refusing to attend to patients; academic, not disciplinary, because the handbook made professionalism central to the curriculum). The D.C. courts have held that professional comportment falls under the umbrella of academic deference for medical students. Chenari. North Dakota upheld a residency dismissal for incompetence in the area of professionalism as a cumulative expert judgment. Abdullah.

The dividing line is whether the programme’s own curriculum incorporates professionalism standards. If it does, expect the academic label and plan for it. If it does not — and many undergraduate and non-clinical programmes do not — a behavioural allegation is a misconduct case, and the hearing rights that come with Goss v. Lopez, 419 U.S. 565 (1975), are in play. Fighting over the label is frequently the whole case.

Disability changes the analysis, within limits

Section 504 and the ADA sit on top of this framework and modify it. They do not switch it off.

What they add: Wong’s requirement that the institution show it conscientiously considered accommodation before dismissing. An institution that refused to engage with your documentation, that applied a blanket rule, or that never asked whether an adjustment would have made the difference does not get the benefit of the doubt.

What they do not do: excuse everything traceable to a disability. In Neal v. East Carolina University, 53 F.4th 130 (4th Cir. 2022), the Fourth Circuit held that while the ADA bars dismissing a student on account of a disability, a university may lawfully dismiss a student for misconduct triggered by one. The same case held the university was not arbitrary in declining to prefer an outside psychiatrist’s prediction of future success over its own faculty’s assessments, because the psychiatrist had no access to the academic record or to the people who worked with the student.

Two lessons follow, and both are about timing. An accommodation requested before the failing term is a right. The same request afterwards is an explanation. And an outside expert letter is worth far more when it engages with the school’s own record than when it simply asserts a diagnosis.

Discrimination and retaliation claims are not subject to this deference

This is the doorway most worth knowing, and it is the reason the same facts should almost always be pleaded more than one way.

Academic deference is a doctrine about second-guessing professional judgment. It is not a defence to a statutory discrimination claim. Khoiny v. Dignity Health makes the point directly: the California rule of academic deference did not apply to the gender discrimination and retaliation claims, which were governed by the ordinary burden-shifting framework instead.

So a dismissal that is untouchable framed as “the committee was wrong” may be entirely reachable framed as “the committee treated me differently because of a protected characteristic, or because I complained.” Same facts. Different standard. Different outcome. Choosing the frame is the single most consequential decision in these cases, and it is made at the pleading stage, long after the record has closed.

How to build the record before you need it

Every item below is easy now and impossible later.

• Get the written standard — syllabus, rubric, clinical evaluation form, progression policy — in the version in force for your catalogue year, and keep it.
• Put your account in writing at the time, dated, factual, short. Contemporaneous beats persuasive.
• Request accommodations in writing and early, and ask for a written answer.
• Ask who decided, and on what record. A written answer showing there was no deliberation is worth more than any argument you can make about the merits.
• Use every internal step, on time. Courts ask whether the school followed its process; they also notice whether you did.
• Preserve the timeline. If a complaint, a diagnosis, a pregnancy, a report or a protected activity precedes the adverse decision, the sequence is the evidence.
• Do not sign anything that recites agreement with the finding, waives a claim, or accepts a characterisation you disagree with.

Common questions

Can a court change my grade?

Rarely, and not because it disagrees with the grade. Courts have ordered grade corrections where the institution reached the grade by breaking its own rules — the defect is procedural, and the grade change is the remedy for it.

My school broke its own policy. Is that enough?

It is the strongest routine argument available and it is not automatic. Courts have found careful, documented decisions non-arbitrary despite procedural complaints. What matters is whether the breach affected the outcome, and whether the policy was contractually binding.

Does it help that other students were treated differently?

Substantially, and more so if the different treatment maps onto a protected characteristic — at which point you are out of the deference framework and into a discrimination claim.

Is a professionalism dismissal really academic?

In most professional programmes, yes, and courts have said so repeatedly. Whether it should be in your case depends on what the curriculum says and on whether the allegation is really a contested factual accusation wearing an academic label.

How long do I have?

Internal appeal windows are usually days. Statutes of limitations are years. The internal window is the one that closes first and the one that determines what the record contains — which is what everything afterwards is decided on.