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Szejner v. University of Alaska (9/12/97), 944 P 2d 481
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BOHDAN JAN SZEJNER, )
) Supreme Court Nos. S-7707/7708
Appellant, )
) Superior Court Nos.
v. ) 3AN-94-10132/94-11377 CI
)
UNIVERSITY OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4882 - September 12, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Mark C. Rowland, Judge.
Appearances: Bohdan Jan Szejner, pro se,
Anchorage, Appellant. Mark E. Ashburn, Ashburn & Mason, Anchorage,
for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
These consolidated appeals involve decisions by the
University of Alaska, Anchorage, to deny Bohdan J. Szejner
admission to a graduate program and to sanction him for a violation
of the Student Code of Conduct. The superior court upheld the
university's decisions. We affirm.
II. FACTS AND PROCEEDINGS
Bohdan J. Szejner was admitted to graduate study at the
University of Alaska, Anchorage (UAA), on September 22, 1987. In
August 1988 his thesis committee approved his candidacy for a
Master of Arts degree in English. On April 25, 1989, the thesis
committee reviewed Szejner's draft thesis and concluded that it did
"not indicate satisfactory progress toward the degree." While one
committee member apparently believed that the draft deserved a
grade of "F", another member thought that Szejner should be allowed
a second chance. The committee, after consulting with Professor
Michael Turner of UAA's Advising and Counseling Center, agreed on
May 3 to allow Szejner until May 18 to submit an outline of
chapters, a sample chapter analyzing plays by Shakespeare, and a
bibliography. Szejner submitted the requested materials to the
committee, and the committee, after considerable discussion, agreed
on a grade of "C"for Szejner's thesis and independent research for
the semester.
As a consequence of receiving this grade, the state
student loan program determined that Szejner's grade point average
for the semester made him ineligible to continue to receive student
loans. On May 30 Szejner sought Turner's help. The meeting
quickly deteriorated, and security officers eventually restrained
Szejner and escorted him from the campus. Although the parties
dispute the details, it is clear that Szejner became upset and lost
his composure. UAA summarily suspended Szejner on May 31 pending
a hearing.
The vice chancellor for student services, Larry K.
Kingry, held a disciplinary hearing to give Szejner the chance to
explain and comment on the incident in Turner's office. Kingry
concluded that Szejner had violated the Student Code of Conduct and
wrote to him that his "threatening behavior to the faculty and
staff of the University and their refusal to continue to work with
[him]"made it impossible for him to continue with his academic
program at that time. Kingry expelled Szejner until at least May
1, 1990. Szejner filed a grievance, and a hearing panel, after an
adversarial hearing, affirmed Kingry's decision. The hearing
panel's decision was affirmed by UAA Chancellor Donald Behrend and
UAA President Donald D. O'Dowd.
Szejner applied for readmission on October 12, 1990, and
a hearing was held to consider the application. The hearing
committee recommended that Szejner not be readmitted to UAA.
Jerome B. Komisar, the president of the University of Alaska,
adopted this recommendation and placed conditions upon any future
request by Szejner for readmission, including a request that
Szejner "demonstrate by objective evidence that [he] successfully
maintained an ongoing psychological counseling program along the
lines recommended by [his psychiatrist]."
A hearing was held on June 26, 1991, to consider
Szejner's second readmission request. The hearing committee
recommended that UAA readmit him on a probationary status to
complete his graduate program on the condition that he continue his
psychotherapy. President Komisar adopted this recommendation.
Szejner received his degree in August 1994.
After receiving his degree, Szejner applied to the
Teacher Certification Program in English at UAA. The graduate
admissions committee of the school of education denied his
application. Alexander McNeill, the dean of the school, cited two
reasons for this decision:
1.0 President Komisar's letter to you of
July 16, 1991 clearly states that "You are readmitted to the Master
of Arts in English program for the sole purpose of completing your
graduate degree program under the non-thesis (directed readings)
option on page 193 of the 1991-92 UAA catalog." The President's
letter essentially prohibits your admission to other programs at
UAA.
2.0 The committee has carefully weighed
your student record at UAA. On the basis of that record, it is the
committee's professional judgment that you have not demonstrated
the socially responsible behaviors that are necessary for admission
into a teacher certification program.
McNeill stated that the decision was "an academic decision and, as
such, is subject to the academic appeals process."
Szejner appealed the decision to Dr. Doug Hammer,
associate vice chancellor for research and graduate programs.
Hammer met with Szejner and others, reviewed Szejner's academic
record, and upheld McNeill's decision. He also noted in his letter
to Szejner that in his own professional judgment Szejner "would not
be well served by being admitted into a program"because of his
doubts as to whether Szejner could complete the program and receive
the recommendation required for certification. [Fn. 1] However,
President Komisar allowed Szejner to enroll in classes at UAA for
which he qualified "on the same basis as any other student in good
standing."
In November 1994, soon after Hammer affirmed the decision
to deny Szejner's application to the Teacher Certification Program,
Szejner became involved in an incident with Dr. Roy Rowe. Szejner
was enrolled in an education class taught by Rowe. After class on
November 1 Szejner asked Rowe to write him a letter recommending
that he be admitted into the Teacher Certification Program. Rowe
told Szejner that he would not write the recommendation. On
November 3 Szejner resigned from UAA.
On November 4 Szejner called Rowe several times, leaving
messages on an answering machine at Rowe's office and with Rowe's
daughter at his home. Szejner finally reached Rowe and had a
conversation with him at 5:30 in the afternoon. He again reached
Rowe at his home at 8:30 in the evening. According to Rowe,
Szejner accused Rowe of trying to slander him and allegedly said:
"Do you have a family? If you slander my character, I will slander
your character. I know where you live!" Szejner claims that he
actually said to Rowe, "[Y]ou know where to find me."
Szejner also sent Rowe a letter dated November 4, 1994.
The letter states:
This is in reference to our today's
conversation.
You said that, quote, "you have to smear
me because Mrs. Ada and your boss Dean MacNeill did."
I tell you, you can smear your mother,
your father, your daughter, your son, "because your boss did!"
But if you smear my family or myself,
quote, "because someone else did,"you will be accountable to me,
not to your boss!
Why? Because I am a Polish-born American
citizen -- noble and free -- not a conscienceless, morally-
fossilized reptilian peon as you are!
Rowe notified the director of public safety for UAA and the
Anchorage Police Department of both the calls and letter. Rowe
stated that he considered both the calls and the letter to be
threats indicating "a pattern of escalating harassment by Mr.
Szejner directed toward me and my daughter."
Linda Lazell, the dean of students, informed Szejner on
November 8 that she had received allegations that he had violated
the Student Code of Conduct. She requested that Szejner contact
her office within three days for a meeting to determine whether
disciplinary action was required. After Szejner met with Lazell,
Lazell made findings and conclusions regarding the incident with
Rowe. She found that Szejner's "telephone calls . . . to Dr.
Rowe's home and [his] subsequent letter to him . . . which
contained a threat, created a threatening environment for Dr.
Rowe." She concluded that Szejner had therefore violated the
provision in the Student Code of Conduct prohibiting
"endangerment." She placed him on disciplinary probation for one
year to begin if and when he re-enrolled as a student at UAA.
Szejner appealed to Vice Chancellor for Student Services Kingry,
and Kingry denied the appeal on November 29, 1994.
Szejner appealed the decision not to admit him to the
Teacher Certification Program and the violation of the Student Code
of Conduct to the superior court. After denying Szejner's motion
that he recuse himself, Judge Mark C. Rowland affirmed UAA's
decisions and granted UAA partial attorney's fees totaling
$8,927.25. Szejner appeals.
III. DISCUSSION
A. UAA Did Not Err by Denying Szejner Admission to the
Teacher Certification Program. [Fn. 2]
In challenging UAA's decision not to admit him to the
Teacher Certification Program, Szejner first argues that UAA
improperly based that decision on his expulsion from the university
in 1989. However, subjective factors such as motivation, maturity,
and demonstrated humanitarian qualities are valid considerations in
academic admissions decisions. See, e.g., Lucas v. Hahn, 648 A.2d
839, 842 (Vt. 1994), cert. denied, 513 U.S. 1149 (1995) (holding
that, in the context of a program to license teachers, concerns
over a student's ethical standards and ability to cooperate with
superiors "are valid academic matters, because they rank as
important measures of an individual's ability to perform as a
teacher"); McDonald v. Hogness, 598 P.2d 707, 717 (Wash. 1979).
UAA did not err in considering Szejner's expulsion when it
evaluated and rejected his application. [Fn. 3]
Szejner correctly argues that the admissions committee
misread President Komisar's letter readmitting him to the English
program. Komisar's letter stated that Szejner was "readmitted to
the Master of Arts in English program for the sole purpose of
completing [his] graduate degree program under the non-thesis
(directed readings) option." The admissions committee interpreted
this to mean that Komisar's letter prohibited his admission to
other programs at UAA. However, after Szejner appealed the
admissions committee's decision, Komisar clarified his 1991
readmission letter, stating that Szejner was eligible to enroll in
classes at UAA for which he qualified "on the same basis as any
other student in good standing." Thus, Szejner is correct that the
admissions committee incorrectly relied on Komisar's 1991
readmission letter in denying his application. However, this error
was harmless because the graduate committee and Hammer, who heard
Szejner's appeal, properly based their decision on Szejner's
student record in making their decision. [Fn. 4]
B. UAA Did Not Err in Finding that Szejner Violated the
Student Code of Conduct. [Fn. 5]
Szejner argues that UAA erred in finding that his phone
calls and letter to Rowe violated the prohibition in the Student
Code of Conduct against "endangerment." The Student Code of
Conduct defines "endangerment"as "[c]onduct including, but not
limited to, physical abuse, sexual assault, terroristic threats,
hazing and/or coercion which endangers or unreasonably threatens
the health and/or safety of any person or group of persons, or
which cause actual harm to a person or persons." The dean of
students, Linda Lazell, specifically found that Szejner called Rowe
twice, that he was angry and agitated during the second
conversation, that he sent a letter to Rowe stating that "you will
be accountable to me, not your boss,"that the calls and letter
"contained a threat,"and that Rowe felt threatened by his actions.
Szejner's chief argument is that Lazell improperly found
that he had threatened Rowe. [Fn. 6] He contends that he had no
intent to threaten Rowe physically and that his statements were
simply "political hyperbole"or "metaphorical language, irony and
sarcasm." Szejner acknowledges, however, that he was "deeply
upset"by Rowe's failure to recommend him. He also states that in
his letter he "vent[ed] his rightful frustration"at Rowe and "made
it as crystal clear"as he could that "false accusations must have
accountability,"although he qualifies this last point by claiming
that he "of course"meant only "legal and moral"accountability.
A threat is defined as a "communicated intent to inflict
physical or other harm on any person or property"and as "menace;
especially, any menace of such a nature and extent as to unsettle
the mind of the person on whom it operates." Black's Law
Dictionary 1480 (6th ed. 1990). Szejner is correct that there may
be legitimate disagreement over the interpretation of the letter
and the phone conversations. Lazell considered and could have
chosen to accept Szejner's account and interpretation rather than
Rowe's. However, we conclude that Lazell's finding that the letter
and telephone calls "contained a threat"and thus constituted
"endangerment"under the Student Code of Conduct was supported by
both substantial evidence in the record and a reasonable
interpretation of the Student Code of Conduct.
The undisputed text of the letter, Rowe's statements
about the incident, and Szejner's admitted intent to "vent[] his
rightful frustration"and impress upon Rowe his "accountability"
for refusing to write Szejner a recommendation, provide ample
evidence to support Lazell's finding that Szejner threatened Rowe.
Furthermore, Lazell had a reasonable basis for concluding that such
a threat violated the Student Code of Conduct's "endangerment"
provision as "[c]onduct, including but not limited to . . .
terroristic threats, . . . which . . . unreasonably threaten[] the
health and/or safety of any person or groups of persons." Thus, we
hold that UAA did not err in determining that Szejner violated the
Student Code of Conduct. [Fn. 7]
C. UAA Did Not Violate Szejner's Right to Due Process.
Szejner argues that UAA violated his right to due process
when it denied him admission to the Teacher Certification Program.
For due process to be implicated, there must be a liberty or
property interest sufficient to warrant constitutional protection.
Gates v. City of Tenakee Springs, 822 P.2d 455, 461-62 (Alaska
1991). A person does not have a property interest in admission to
graduate school. Phelps v. Washburn Univ. of Topeka, 632 F. Supp.
455, 459 (D. Kan. 1986). Moreover, the denial of admission to
graduate school, "without an underlying charge of dishonesty or
publication of reasons for such denial, does not rise to a liberty
interest." Id. Therefore, Szejner was not due any constitutional
process when UAA denied his application.
Szejner also asserts that UAA did not provide him due
process when it concluded that he violated the Student Code of
Conduct and sanctioned him with one year of disciplinary probation.
Again, Szejner does not identify any property or liberty interest
sufficient to implicate due process concerns. While a school must
provide minimal process before suspending or dismissing a student
for disciplinary reasons, Board of Curators of the Univ. of Mo. v.
Horowitz, 435 U.S. 78, 84-89 (1978), there is no requirement to
provide process when the sanction does not interrupt the student's
education. Yench v. Stockmar, 483 F.2d 820, 824 (10th Cir. 1973)
(indicating that probation without expulsion does not implicate
constitutional due process).
D. The Superior Court Did Not Err in Denying Szejner's
Motion for Recusal or in Awarding Attorney's Fees.
Szejner argues that Judge Rowland should have recused
himself because the attorney representing UAA before the superior
court sat on the Alaska Judicial Council in 1992 and voted to
recommend the retention of Judge Rowland. This argument is
meritless. Judge Rowland did not abuse his discretion in
determining that the attorney's position and actions as a member of
the Judicial Council did not prevent or appear to prevent a fair
and impartial decision in this matter. See AS 22.20.020(9).
Szejner also argues that the superior court erred in
awarding attorney's fees. However, because he fails to offer any
reason why the award in this case was an abuse of the superior
court's discretion, we reject his argument.
IV. CONCLUSION
For the above reasons, we hold that UAA did not act
improperly in denying Szejner admission to the Teacher
Certification Program or in finding that he had violated the
Student Code of Conduct. We therefore AFFIRM the decision of the
superior court.
FOOTNOTES
Footnote 1:
As part of the "Certification Endorsement Requirements,"the
dean of the School of Education and the appropriate department
chair must provide a positive recommendation to the commissioner of
the Alaska Department of Education on behalf of the candidate.
Footnote 2:
Because UAA's denial of admission to Szejner was based on the
application of its own regulations, our scope of review is limited
to determining if its decision was arbitrary, unreasonable or an
abuse of discretion. Rose v. Commercial Fisheries Entry Comm'n,
647 P.2d 154, 161 (Alaska 1982). This is similar to the standard
of review applied in other jurisdictions. E.g., McDonald v.
Hogness, 598 P.2d 707, 717 (Wash. 1979) (reviewing decision to deny
admission to an academic program for "arbitrary and capricious
action").
Footnote 3:
Szejner also contends that the expulsion was unwarranted and
based on "secret"and "spoliated"evidence. Szejner, however,
never appealed the expulsion decision, and we will not now review
it.
Footnote 4:
In his statement of the issues, Szejner asserts that UAA's
denial of his application violated the American Disabilities Act.
Szejner does not develop this argument in his brief and it is
therefore waived. Weidner v. State, Dep't of Transp. & Pub.
Facilities, 860 P.2d 1205, 1213 n.9 (Alaska 1993). Szejner also
relies on article I, section 1 of the Alaska Constitution to argue
that UAA violated his "inherent constitutional rights." This
argument was not raised during the administrative process nor set
forth in Szejner's points on appeal, and is therefore waived.
Tolstrop v. Miller, 726 P.2d 1304, 1307 n.7 (Alaska 1986).
Footnote 5:
We review UAA's finding that Szejner violated the Student Code
of Conduct under the reasonable basis standard because the finding
involves an agency's interpretation of its own regulation, and we
review UAA's application of the regulation to the facts to
determine if its decision was arbitrary, unreasonable or an abuse
of discretion. Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d
154, 161 (Alaska 1982).
Footnote 6:
Szejner also suggests that Lazell's decision was motivated not
by his conduct toward Rowe but as retaliation for his religion,
nationality, "political incorrectness", and vocal dissent. Szejner
cites to no evidence, and we find none in the record, to support
this claim.
Footnote 7:
Szejner also argues that a sanction of one year of probation
is disproportionate to the violation. We disagree. Probation is
a mild disciplinary sanction consisting merely of a "written
reprimand"and the possibility that "more severe disciplinary
sanctions"will be imposed for additional violations of "any
institutional regulation." Furthermore, because Szejner withdrew
from the university before being sanctioned, he only faces the
sanction if he re-enrolls.
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