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Nickerson v. University of Alaska Anchorage (3/26/99), 975 P 2d 46
<![CDATA[
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
WAYNE E. NICKERSON, )
) Supreme Court No. S-8269
Appellant, )
) Superior Court No.
v. ) 3AN-96-04819 CI
)
UNIVERSITY OF ALASKA ) O P I N I O N
ANCHORAGE, )
)
Appellee. ) [No. 5101 - March 26, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: Wayne E. Nickerson, pro se,
Seward. Mark E. Ashburn, Ashburn & Mason, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
PER CURIAM
I. INTRODUCTION
Wayne Nickerson, a former graduate student at the Univer-
sity of Alaska Anchorage, appeals the University's decisions to
remove him from an advanced teaching practicum and to dismiss him
from the special education endorsement program. The primary
questions in this case concern whether the University complied with
its own handbook and course catalog and whether the University's
dismissal of Nickerson satisfied due process. We conclude that the
University complied with its own internal procedures, but remand
for further findings as to whether the University comported with
due process by giving Nickerson proper notice prior to his
dismissal.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In July 1994 Wayne Nickerson applied for admission to the
University of Alaska Anchorage's Teacher Certification Program in
Special Education. Nickerson was conditionally admitted to the
graduate level certification program in December 1994.
In October 1995 Nickerson applied for placement in an
advanced practicum for the 1996 spring semester. The practicum is
a ten-week supervised, collaborative exchange between the
University and a local school district. Practicum students are
supervised by both a host teacher in the local school district and
a University supervisor. Students receive daily feedback from the
host teacher and weekly visits from the University supervisor. The
practicum is the culminating experience for students seeking an
endorsement in special education. Admission into this final phase
of professional preparation is a faculty decision which is separate
from entry into the graduate program. Final decisions on the
practicum site and host teacher are made by the school district and
University faculty, not by the practicum student.
In February 1996 University faculty obtained a practicum
placement for Nickerson at Colony High School in Palmer. Dr. Cable
Starlings was Nickerson's University supervisor. Carol Boquard was
Nickerson's host teacher at Colony High School.
During Nickerson's practicum, Professor Starlings spoke
with Nickerson on an on-going basis and met with him and his host
teacher on February 28 and again on March 13. During the March 13
meeting, Boquard reported that Nickerson "was having difficulty
with [working] relationships and his role in the classroom,"and
"was not working effectively with his host teachers." Nickerson
told Starlings that he found his role difficult and that he had
disagreed with his host teacher on a student discipline issue.
Despite Nickerson's assurances that he had corrected his behavior,
Nickerson was given suggestions for improving his relationship with
his host teachers. First, Nickerson was encouraged to listen more
willingly and not to defend his position so aggressively when
confronted with criticism from host teachers. Second, Nickerson
was told to solicit support from his host teachers to improve his
ability to relate effectively to them.
On Friday, March 15, Professor Starlings received an e-
mail from Colony Principal Bill Harlow. Harlow indicated that he
had spoken with Boquard that morning regarding the practicum. He
indicated that Boquard had described a frustrating, unworkable
situation stemming from Nickerson's failure to follow directions
from her and from other teachers. Harlow informed Starlings that
the "picture is a little more grim"than Starlings was led to
believe during the March 13 conference, and suggested a meeting to
try to "salvage something." Harlow stated that the "bottom line is
that we won't let kids, teachers, or the system be compromised."
Professor Starlings promptly informed Dr. Alexander
McNeill, Dean of the School of Education, of Harlow's message.
Starlings noted that the message "clearly identifies a continuing
problem with Mr. Nickerson's ability to effectively relate to
supervisors." Starlings further informed McNeill that he would
suspend Nickerson from his practicum as of Monday. Over the week-
end, Starlings told Nickerson not to go to Colony on Monday or
until such time as Starlings could meet with Colony personnel and
investigate the matter.
Professor Starlings met with Principal Harlow and Carol
Boquard at Colony High School on the morning of Monday, March 18.
During the meeting, Starlings determined that Boquard lacked trust
in Nickerson, that Nickerson did not listen to or follow her
suggestions, and that Nickerson resisted constructive criticism.
Given the level of frustration expressed by Boquard, Starlings
concluded that it was necessary to remove Nickerson from his
practicum at Colony High School.
On the afternoon of March 18, Starlings and Dean McNeill
met with Nickerson to notify him of his removal from the practicum.
Starlings relayed the substance of his meeting with Harlow and
Boquard. Starlings stated that the decision was based upon
Nickerson's unwillingness to identify and correct his difficulties
in dealing with faculty. While Starlings acknowledged that
Nickerson may have a different interpretation of events, Starlings
indicated that the situation brought to his attention was "not
conducive to the learning of children and the work of teachers."
On Wednesday, March 20, Professor Starlings sent
Nickerson written notice of his removal from the practicum.
Starlings informed Nickerson of his right to appeal his removal,
citing the relevant page of the course catalog. Starlings also
notified Nickerson that he would bring the matter to the attention
of the special education faculty, and request a decision on
Nickerson's continued enrollment in the special education program.
On the same day, March 20, Dean McNeill met with the
chairperson of the department of teacher education and five faculty
members of the special education program to evaluate Nickerson's
status in the special education endorsement program. The committee
reviewed Nickerson's record in the special education program at the
University and Nickerson's experience during his practicum at
Colony High School. The committee unanimously voted to dismiss
Nickerson from the special education endorsement program.
On Friday, March 22, Dean McNeill informed Nickerson of
the faculty decision to dismiss him from the special education
program. McNeill explained that the decision was based upon
Nickerson's "repeated failure to respond to feedback regarding
[his] general lack of professional behaviors,"Nickerson's
"repeated hostile and abrasive interaction with faculty in special
education,"and Nickerson's "verbal abuse and intimidation of other
professionals." Dean McNeill stated that such conduct fell short
of the standards for retention in the special education program as
set forth in the special education student manual. Dean McNeill
informed Nickerson of his right to appeal the decision to the Vice
Chancellor of Academic Affairs, and included a highlighted passage
of the course catalog describing Nickerson's right to appeal.
B. Procedural Background
On March 20, 1996, Nickerson sent a letter to Vice
Chancellor Roberta Morgan requesting that he be reinstated to his
special education practicum. After receiving Dean McNeill's letter
dismissing him from the special education program, Nickerson sent
Vice Chancellor Morgan a second letter on March 26, alleging that
the special education department failed to follow its advanced
practicum handbook and denied him due process. Nickerson requested
that the University investigate and correct the situation.
On March 27 Vice Chancellor Morgan met with Nickerson to
allow him to explain the basis for his appeal.
On April 2 Nickerson sent another letter to Vice Chancel-
lor Morgan restating his allegations that the procedures in the
advanced practicum handbook had not been followed, and that he had
been denied due process when Dean McNeill held a special faculty
meeting to discuss his dismissal from the special education program
without allowing him to be present. Nickerson requested reinstate-
ment to the special education endorsement program.
On April 3 Vice Chancellor Morgan rendered her decision
denying Nickerson's appeal. Dr. Morgan informed Nickerson that the
proper avenue of appeal for his complaint about removal from his
practicum was to the dean of the education department, and that the
dean's decision on such a matter was final. Dr. Morgan denied
Nickerson's appeal of his dismissal from the special education
endorsement program, concluding that no evidence existed to
indicate that Dean McNeill's actions were arbitrary and capricious,
clearly erroneous, or based on unlawful discrimination.
Dr. Morgan informed Nickerson that her decision was the
final decision of the University on his appeal. She informed
Nickerson that he could appeal her decision to superior court.
Nickerson appealed Dr. Morgan's final decision to the
superior court. That court rendered a final order on this
administrative appeal on July 28, 1997. The superior court held
that the University had followed sufficiently the advanced
practicum handbook in removing Nickerson from his practicum, that
Nickerson was not denied due process, and that Nickerson was not a
public interest litigant for attorney's fees purposes. The
superior court declared the University to be the prevailing party,
and awarded the University partial attorney's fees in the amount of
$1,301.47.
Nickerson filed a timely notice of appeal.
III. DISCUSSION
A. Was Nickerson Afforded the Appropriate Procedure? [Fn. 1]
Nickerson essentially presents three procedural points.
First, Nickerson argues that the University failed to follow the
advanced practicum handbook in removing him from his practicum.
Second, Nickerson argues that the University did not follow the
course catalog in his academic appeal. Third, Nickerson argues
that he was denied due process under the Alaska and United States
Constitutions.
1. Did the University follow the provisions of the
advanced practicum handbook in removing Nickerson from his
practicum?
Nickerson first contends that the University did not
comply with the provisions of the advanced practicum handbook in
removing him from his practicum. We disagree.
Two provisions of the advanced practicum handbook are
relevant. The first, entitled "When Problems Arise,"identifies
eight steps that the University supervisor should take in resolving
conflicts in the practicum. These steps include scheduling a
conference between the University supervisor, the host teacher, and
the practicum teacher; identifying reasons for the conference and
allowing each person to express his or her concerns; outlining a
plan for resolving the conflict; and monitoring progress toward
resolving the conflict. Professor Starlings's efforts to resolve
the conflict between Nickerson and his host teachers substantially
complied with these guidelines.
Professor Starlings met with Nickerson and his host
teacher, Carol Boquard, on February 28 and on March 13. At the
March 13 conference, Boquard reported that Nickerson was "not
working effectively with his host teachers." Nickerson informed
Starlings that "he had a conflict with one female host teacher over
a discipline issue with a student,"but that he had corrected his
behavior and that the relationship would improve. Nickerson was
given two suggestions for ameliorating the problem: (1) he should
be more willing to listen to his host teachers and not defend his
position so aggressively when confronted with constructive
criticism, and (2) he should solicit support from his host teachers
to help improve his ability to relate to them effectively.
The second handbook provision at issue, entitled "Denial
of or Removal from Advanced Practicum,"outlines various
unacceptable activities that may necessitate removal from the
practicum and the appropriate procedures in such an event. It
provides that students may be removed from the practicum for, among
other things, "insubordination." If the University supervisor or
host teacher learns that the practicum teacher has allegedly
engaged in unacceptable activities, he or she is required to notify
the department chairperson. After notification, the chairperson is
required to suspend the practicum, inform all parties of the
suspension, and schedule a conference with the University
supervisor and practicum teacher to investigate the allegation. If
the investigation produces adequate evidence that the practicum
teacher engaged in unacceptable activities, the practicum teacher
is to be immediately withdrawn from the practicum. Once again,
Professor Starlings substantially complied with requisite
procedures in removing Nickerson from the practicum.
On March 15, only two days after his last conference
aimed at resolving problems between Nickerson and his host teacher,
Professor Starlings received an e-mail from Colony High School
Principal Bill Harlow. Harlow notified Starlings that the "picture
is a little more grim"than Boquard had portrayed, and indicated
that Nickerson was creating a frustrating, unworkable situation for
his host teachers because he did not follow their directions.
Harlow stated that the "bottom line is that we won't let kids,
teachers, or the system be compromised."
After being notified of Nickerson's alleged pattern of
disruptive insubordination, Starlings properly suspended
Nickerson's practicum and investigated the charges. Starlings
contacted Nickerson over the weekend and told Nickerson not to go
to Colony on Monday or until such time as Starlings had met with
Colony faculty. On March 18, Starlings met with Harlow and Boquard
at Colony High School. Boquard relayed to Starlings that she felt
Nickerson was resistant to constructive criticism, that he neither
listened to nor followed her suggestions, and that she did not
trust Nickerson. Starlings found adequate evidence of insubordi-
nation, and concluded that Nickerson's relationship with Boquard
had deteriorated beyond the point of repair. Starlings and Dean
McNeill subsequently informed Nickerson of the decision to remove
him from the practicum.
Starlings's actions in attempting to resolve the conflict
between Nickerson and Boquard, and in removing Nickerson from the
practicum, substantially complied with the advanced practicum
handbook. Starlings's conduct was reasonable, and was not an abuse
of discretion.
2. Did the University comply with the course catalog
in Nickerson's academic appeal?
Nickerson next argues that the University did not follow
the appeals process in the course catalog after removing Nickerson
from both his practicum and the special education program. This
argument lacks merit.
The course catalog provides that each student has the
right to appeal academic actions. The student must submit a
written request for appeal to the dean of the appropriate school
within fifteen working days after notification of the action under
review. If the action does not involve removal from a major
program or loss of baccalaureate degree-seeking status, the student
has no further right to appeal within the University, and the
dean's decision is the final decision of the University. If the
academic action does entail dismissal from a major program or loss
of baccalaureate degree-seeking status, the student may appeal the
dean's decision to the Vice Chancellor for Academic Affairs within
three days. In such cases, the vice chancellor's decision is the
final decision of the University, and the student has no further
right to appeal within the University. The University complied
with these procedures in the instant case.
In notifying Nickerson of the decision to remove him from
the practicum, Professor Starlings informed Nickerson that he had
the right to appeal, and cited the relevant page of the course
catalog outlining those rights. Nickerson, however, did not appeal
his removal from his practicum to the dean of the education
department, the appropriate and final forum for that academic
appeal. In informing Nickerson of the faculty decision to dismiss
Nickerson from the special education endorsement program, Dean
McNeill instructed Nickerson that he had the right to appeal the
dismissal to the Vice Chancellor of Academic Affairs, and enclosed
a highlighted copy of the appeals process from the course catalog.
Nickerson ultimately sent two letters to Vice Chancellor
Roberta Morgan requesting to be reinstated to the practicum, and
one letter requesting his reinstatement to the special education
endorsement program. In a March 27 meeting with Nickerson, Vice
Chancellor Morgan informed Nickerson that his removal from the
practicum and his removal from the special education endorsement
program were two separate issues, and that she was only empowered
to hear the appeal of his dismissal from the special education
program. Thus, Nickerson properly appealed his dismissal from the
program to Vice Chancellor Morgan. However, although informed by
both Professor Starlings and Vice Chancellor Morgan that Dean
McNeill was the proper channel for appealing his removal from the
practicum, Nickerson never made such an appeal. [Fn. 2]
The University reasonably complied with the course
catalog in Nickerson's academic appeal, and its actions do not
constitute an abuse of discretion.
3. Was Nickerson denied procedural due process?
With respect to Nickerson's third procedural point, it is
a closer question whether Nickerson was denied procedural due
process under the Fourteenth Amendment of the United States
Constitution and article I, section 7 of the Alaska Constitution.
As a threshold matter, due process rights are only
implicated by a deprivation of liberty or property interests. [Fn.
3] Neither this court nor the United States Supreme Court has
specifically held that dismissal from a graduate program
constitutes deprivation of a liberty or property interest. [Fn. 4]
Although we have not specifically identified the interest
implicated, we have noted that "a school must provide minimal
process before suspending or dismissing a student for disciplinary
reasons, [but is not required] to provide process when the sanction
does not interrupt the student's education."[Fn. 5] While we do
not address the broader issue of whether a student has a property
interest in continued enrollment in a graduate program, dismissal
from a graduate program for allegedly "hostile,""abrasive,"
"intimidating,"and "unprofessional"behavior sufficiently
stigmatizes a person's professional reputation in a chosen career
field to constitute an infringement of a liberty interest.
It is a close question whether Nickerson received due
process under the Alaska Constitution and the Fourteenth Amendment.
In Horowitz, the Court distinguished academic dismissals,
terminations for deficient scholastic performance, from
disciplinary dismissals, terminations for violations of valid rules
of conduct. [Fn. 6] Disciplinary dismissals require oral or
written notice of the charges and, although not a formal hearing,
an "informal give-and-take"between the student and administrative
body which gives the student "the opportunity to characterize his
conduct and put it in what he deems the proper context."[Fn. 7]
Academic dismissals require less procedural protection. [Fn. 8]
While the Court never articulated the minimum process required for
academic dismissals, the Court indicated that due process is
satisfied if (1) the school fully informs the student of its
dissatisfaction with his performance and the danger that this
deficiency poses to continued enrollment, and (2) the ultimate
decision to dismiss is careful and deliberate. [Fn. 9] No hearing
in any form is required for academic dismissals, however. [Fn. 10]
To determine what protections therefore apply, we must
first determine whether this case presents an academic or
disciplinary dismissal. Although the University regarded the
dismissal from the special education program as an academic action,
the dismissal was in fact premised largely upon improper conduct,
i.e., Nickerson's insubordination and inability to interact
effectively with his host teachers and faculty. We observe that
the United States Supreme Court itself has characterized
suspensions based upon "disruptive and disobedient conduct"as
disciplinary proceedings. [Fn. 11] While acknowledging that there
is no clearly identifiable line between academic and disciplinary
proceedings, we nevertheless recognize that school teachers must
possess the ability to interact effectively with their students and
colleagues, and, while less than tangible, such a skill may form an
academic requirement necessary for satisfactory completion of a
teaching program. Mindful that "the determination whether to
dismiss a student for academic reasons requires an expert
evaluation of cumulative information and is not readily adapted to
the procedural tools of judicial or administrative decisionmaking,"
[Fn. 12] we accept the University's academic dismissal
characterization on this close question.
The next question is whether Nickerson was afforded due
process. "Dismissal of a student for academic reasons comports
with the requirements of procedural due process if the student had
prior notice of faculty dissatisfaction with his or her performance
and of the possibility of dismissal, and if the decision to dismiss
the student was careful and deliberate."[Fn. 13] Our main concern
in this case is whether Nickerson received adequate notice, and we
focus on the timing and content of any notice provided Nickerson.
We read Horowitz as requiring more than mere perfunctory
notice rendered with or after the decision to dismiss. Instead, to
be meaningful, a student must be given notice prior to the decision
to dismiss that the faculty is dissatisfied with his performance
and that continued deficiency will result in dismissal. If the
University's interests are truly academic rather than disciplinary
in nature, its emphasis should be on correcting behavior through
faculty suggestion, coercion, and forewarning rather than punishing
behavior after the fact. In close cases such as this one where
much turns on the academic-disciplinary characterization, a
university imposing sanctions for improper conduct cannot avoid the
marginally greater protections for disciplinary proceedings,
including an informal hearing, by labeling the dismissal academic
rather than disciplinary. Although we decline to state a rigid
time period by which notice of dissatisfaction and possible
dismissal must predate the actual decision to dismiss, we hold that
notice must precede the academic dismissal by a reasonable time so
that a student has a reasonable opportunity to cure his or her
deficient performance.
Given the record before us, we are unable to discern
whether Nickerson received adequate notice in this case. At a
March 13 meeting with Boquard and Starlings, Nickerson learned that
the faculty was dissatisfied with his performance, and he was given
some suggestions for remedying the deficiency. The record is
unclear, however, as to whether Nickerson was given notice that his
continued behavior might result in his dismissal from the special
education program. Given the events transpiring within the one-
week period from March 15, the day when Professor Starlings
received the e-mail from Principal Harlow, to March 22, the day
when Dean McNeill notified Nickerson of the faculty decision to
dismiss him from the special education program, it is questionable
whether the University gave Nickerson proper notice.
On March 15 Principal Harlow informed Professor Starlings
that "the picture is a little more grim"than Starlings was led to
believe during the March 13 conference. The e-mail implies that
Boquard did not fully relay the extent of her dissatisfaction to
Nickerson and Starlings on March 13. If Starlings was not fully
informed as to the extent of the perceived problem, it seems likely
that Nickerson was not sufficiently informed that his practicum was
in jeopardy, and most significantly, that his continued enrollment
in the program was at risk. In the record currently before us, the
first notice regarding potential dismissal from the special
education program was the March 20 letter from Professor Starlings
confirming Nickerson's removal from the practicum. In that letter,
Starlings, apparently for the first time, informed Nickerson that
he was going to confer with the special education faculty on the
matter, and request a decision on the status of Nickerson's
continued enrollment in the special education program. On that
same day, March 20, Dean McNeill met with faculty members of the
special education program to evaluate Nickerson's status. The
committee unanimously voted to remove Nickerson from the program.
Thus, on the current record, it appears that Nickerson
was given notice on March 13 that the faculty was dissatisfied with
his behavior and performance in the practicum. But it is unclear
whether Nickerson was informed that continued misbehavior might
result in his dismissal from the program. Instead, the record
suggests that Nickerson was first notified that his continued
enrollment in the program was in jeopardy the same day that faculty
decided to dismiss him from the program. If this is correct,
Nickerson was not afforded adequate notice prior to his academic
dismissal. Given the state of the record, however, we remand for
a determination as to whether Nickerson received adequate notice of
the possibility of dismissal from the program.
IV. CONCLUSION
For the foregoing reasons, the judgment of the superior
court is REVERSED and the case is REMANDED for further findings
consistent with this opinion. Given this decision, the award of
attorney's fees is VACATED.
FOOTNOTES
Footnote 1:
This court independently reviews "the merits of an
administrative determination. No deference is given to the
superior court's decision when that court acts as an intermediate
court of appeal." Bruner v. Petersen, 944 P.2d 43, 47 n.5 (Alaska
1997) (citation omitted). The issues as to whether the University
complied with the advanced practicum handbook and the course
catalog involve the University's application of its own
regulations. Accordingly, this court's review is limited to
determining if the decision was "arbitrary, unreasonable, or an
abuse of discretion." Szejner v. University of Alaska, 944 P.2d
481, 484 n.2 (Alaska 1997). The issue as to whether the University
procedures comported with due process involve a question of law not
requiring agency expertise. Accordingly, this court uses the
"substitution of judgment"test. Bruner, 944 P.2d at 47 n.5.
Footnote 2:
Due to his failure to appeal directly to Dean McNeill, the
University argues that Nickerson failed to exhaust his
administrative remedies with respect to his removal from the
practicum. Although he may not have fully exhausted his admini-
strative remedies, Nickerson's failure to appeal to Dean McNeill
may be excused. Dean McNeill participated to some degree in
deciding to remove Nickerson from the practicum and in notifying
Nickerson of the removal. An appeal to Dean McNeill may be
regarded as futile under the circumstances. See State v. Beard,
948 P.2d 1376, 1379-80 (Alaska 1997). The superior court concluded
that "any failure on the part of Nickerson to exhaust his
administrative remedies is excused." Such a determination lies
within the sound discretion of the trial court, Beard, 948 P.2d at
1380, and we find no abuse of discretion on the record before us.
Footnote 3:
See Board of Curators of Univ. of Missouri v. Horowitz, 435
U.S. 78, 82-84 (1978); Szejner v. University of Alaska, 944 P.2d
481, 486 (Alaska 1997).
Footnote 4:
See Horowitz, 435 U.S. at 84-85; Szejner, 944 P.2d at 486-87.
But see Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986).
Footnote 5:
Szejner, 944 P.2d at 486 (citation omitted).
Footnote 6:
See Horowitz, 435 U.S. at 86-91.
Footnote 7:
Id. at 85-86 (quoting Goss v. Lopez, 419 U.S. 565, 584
(1975)).
Footnote 8:
See id. at 86-87.
Footnote 9:
See id. at 85.
Footnote 10:
See id. at 87 n.3, 90.
Footnote 11:
Compare Goss v. Lopez, 419 U.S. 565, 569 (1975) with Horowitz,
435 U.S. at 85-86.
Footnote 12:
Horowitz, 435 U.S. at 90.
Footnote 13:
Schuler v. University of Minnesota, 788 F.2d 510, 514 (8th
Cir. 1986) (citing Horowitz, 435 U.S. at 85).
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