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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Horner-Neufeld v. University of Alaska Fairbanks, School of Fisheries and Ocean Sciences. (1/20/2017) sp-7147

Horner-Neufeld v. University of Alaska Fairbanks, School of Fisheries and Ocean Sciences. (1/20/2017) sp-7147

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

GAYLE  HORNER-NEUFELD,                                          )  

                                                                )     Supreme  Court  No.  S-15782  

                              Appellant,                        )  


                                                                )     Superior Court No. 4FA-10-01740 CI  

          v.                                                    )  


                                                                      O P I N I O N  


UNIVERSITY OF ALASKA                                            )  


FAIRBANKS, SCHOOL OF FISHERIES )                                                                          

                                                                     No. 7147 - January 20, 2017  


AND OCEAN SCIENCES,                                             )  


                              Appellee.                         )



                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                    Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.  


                    Appearances:            James  Hackett,  Fairbanks,  for  Appellant.  


                    Susan  Orlansky,  Reeves  Amodio  LLC,  Anchorage,  for  



                    Before:         Stowers,  Chief  Justice,  Maassen,  Bolger,  and  


                    Carney, Justices. [Winfree, Justice, not participating.]  


                    BOLGER, Justice.  



                    A student was dismissed from a Ph.D. program at the University of Alaska  


Fairbanks after several years of poor performance and negative feedback.  She claims  


that her  advisors discriminated and retaliated  against her,  that  she was  dismissed in  

----------------------- Page 2-----------------------


violation of due process, and that the University breached duties owed to her under an  


implied contract.  We affirm the superior court's decision to uphold the University's  


action because the student was dismissed based on her poor research performance and  


the dismissal was conducted under adequate procedures and within accepted academic  





          A.        The Program  


                    Studentsin thePh.D. programin theSchoolof Fisheries and Ocean Science  


(SFOS) at the University must advance to Ph.D. candidacy to become eligible for the  


degree.  To advance to candidacy, students are required to complete course work, pass  


a comprehensive examination, and obtain approval for a thesis project.  To receive a  


Ph.D., students must complete a thesis that will contribute to the body of knowledge in  


their area and pass an oral defense.  


                    Each graduate student is guided through the program by an advisor and an  


advisory committee. Students are initially assigned to an advisor based on their research  


interests, and the student is responsible for selecting and obtaining approval for at least  


three additional committee members. The advisor is a faculty member who must consent  


to the assignment; he or she also chairs the advisory committee, so the advisor-student  


relationship is a critical factor in the student's  success.   The committee develops a  


graduate study plan with the student, provides research expertise, approves the student's  


thesis proposal, and conducts the written examination and oral defense. The committee  


may refuse to recommend a student for candidacy.  


                    Students are expected to meet with their advisory committee at least once  


a year and must submit an annual committee report. The report contains the committee's  


comments about the student's course work and research progress and includes an overall  


progress  rating  of  Satisfactory,  Conditional,  or  Unsatisfactory.                                   If  the  rating  is  

                                                               -2-                                                        7147

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Conditionalor Unsatisfactory,thereport provides thecommittee's recommended actions  


for improvement and the consequences if improvement does not occur. If a student does  


not file a Satisfactory report each spring, the student may be placed on probation.  


                    The SFOS graduate program is intended to be "an intense, coordinated  


effort, undertaken in a relatively short time." By the end of the first year, students should  


have an advisor and an advisory committee.  At 18 months, the student's thesis project  


should be "fairly well outlined."  Students should take the comprehensive examination  


and advance to candidacy at the end of the second year.  A student should be able to  


complete the degree in five years; regardless, students must complete the degree within  


ten years.  


          B.        Horner-Neufeld's Attendance At SFOS  


                    Gayle Horner-Neufeld was a Ph.D. student in marine biology between  


January 2003 and January 2009.  During those six years, Horner-Neufeld demonstrated  


great success in her course work but struggled with the program's research component  


and ultimately did not obtain a degree.  


                    Horner-Neufeld was initially assigned to two co-advisors: Dr. Katrin Iken  


and Dr. Brenda Konar.  During her first year, she met with some bad luck; she suffered  


a  head  injury,  and  she  abandoned  her  first  potential  thesis  project  after  the  field  


component was destroyed by strong waves.  She struggled to complete another thesis  


proposal after rejecting advice from Dr. Iken to switch to a more manageable master's  


project.  After receiving a Conditional rating in her annual committee report for 2003- 


2004, Horner-Neufeld changed projects several more times, and after she submitted yet  


another incomplete thesis proposal in July 2004, both advisors resigned.  


                    This development was problematicfor Horner-Neufeld, who was nowover  


18  months  into  her  program  but  lacked  an  advisory  committee,  a  complete  thesis  


proposal, and an advisor.  Due to her specific research focus, few faculty members were  

                                                               -3-                                                         7147

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qualifiedtoadviseher. Horner-Neufeldcontactedfacultymembers throughout the2004- 


2005 academic year.   But she also focused on bringing grievances to administrators  


about her initial advisors, complaining that they had dropped her without warning.  In  


February 2005, she met with two SFOS administrators, Drs. Denis Wiesenburg and  


Michael Castellini, to discuss her concerns. On February 7, 2005, Dr. Wiesenburg, who  


was then dean of SFOS, sent Horner-Neufeld a letter summarizing their conversation,  


telling her that they would investigate her complaint against Drs. Iken and Konar, but  


that she would be dismissed from the program if she did not find an advisor by May 15:  


                     [Y]ou will not be eligible to continue as a graduate student in  


                    our  Marine  Biology  program  unless  you  find  a  qualified  


                    advisor  to  supervise  your  work  .  .  .  ,  as  the  relationship  


                    between  the  advisor  and  student  is  the  major  factor  that  


                    determines a student's success in any graduate program. . . .  


                    I encourage you to focus your efforts on moving forward and  


                    finding an advisor so you may continue working toward your  


                    Ph.D. in our program.  


To assist Horner-Neufeld in meeting this deadline, SFOS funded a trip to Juneau so that  


she could meet potential advisors, and the head of the SFOS marine biology program  


offered faculty incentives. Horner-Neufeld ultimately began working with Dr. Michael  


Stekoll, whom she met in Juneau on the SFOS-funded trip, and Dr. Peter McRoy.  That  


year, she received an overall rating of Satisfactory, and her annual report for 2004-2005  


emphasized that "it [was] critical for [Horner-Neufeld] to now focus on her research."  


                    Over the next two and a half years, Horner-Neufeld submitted funding  


proposals and worked on developing her thesis project, but she encountered difficulties  


with both.  Horner-Neufeld received only a single $500 grant in 2005-2006 and only  


submitted one grant proposal in 2006-2007.  Her committee attributed this in part to  


Horner-Neufeld's failure to meet internal deadlines; she countered that her advisors did  


not provide timely feedback and requested too many revisions.   She also submitted  

                                                                -4-                                                         7147

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several drafts of her thesis proposal to her advisors and committee, but none were                                                                                                             


deemed complete.                             The required annual report for 2005-2006 was never filed,                                                                                              

                                                                                                                                                                                          and the  


following year, Horner-Neufeld did not have an annual committee meeting in the spring.  


She ultimately met with her committee in December 2007, and her annual report for  


2006-2007 was filed in March 2008, almost one year late. In her report, Horner-Neufeld  


was given her second Conditional rating and instructed to "prepare a detailed thesis  


proposal that can be used to guide and implement a research program that will lead to a  


successful dissertation" in order to return to Satisfactory status.  The deadline for this  


proposal was March 27, 2008.  Horner-Neufeld submitted a draft before this deadline,  


which her advisors did not find satisfactory, and she soon found herself, more than five  


years after entering the program, once again without an advisor.  


                               Horner-Neufeld arranged to perform research tasks over the summer of  


2008 for Dr. Arnold Blanchard, a recent Ph.D. graduate who had joined the faculty since  


her first advisor search in 2004-2005. He would be her supervisor and, if the relationship  

                                                                        2   Horner-Neufeld began developing a new thesis project  



went well, become her advisor. 

based  on  a  data  set  she  received  from  him,  and  she  sent  an  outline  in  May  to  


                1              Graduate students were reminded fromtime to time that it was the student's                                                                             

responsibility to ensure timely filing of annual committee reports.                                                                                       However, according   

to Horner-Neufeld, Dr. McRoy had told her that he would type up the report but failed                                                                                                         

to do so even after she reminded him.                                                     The program updated its policy in January 2008                                                       

to state that timely report submission was the advisor's responsibility and students could                                                                                                    

file a rebuttal.                   

                2              Horner-Neufeld now claims that Dr. Blanchard was her advisor, not her  


supervisor, citing an email she wrote in December 2008: "[Dr. Blanchard] had recruited  


me to be his graduate student . . . . [H]e was my advisor, by his choice."  At least three  


witnesses stated that Dr. Blanchard had made it clear to her that he was not her advisor.  


In an earlier affidavit, Horner-Neufeld did not actually characterize him as her advisor,  


though she referred to Drs. Konar, Iken, McRoy, and Stekoll as co-advisors.  She also  


said only that they "discussed" advisorship.  


                                                                                                  -5-                                                                                          7147

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Drs. Blanchard and Castellini.  But in August, this relationship too broke down after  


Horner-Neufeld requested that Dr. Blanchard reschedule a group meeting two days in  


a row shortly before a research trip.  Dr. Blanchard then removed her from the research  


trip, and Horner-Neufeld left the state to visit family.  When she returned in September  


2008, the University arranged a mediation session between Dr. Blanchard and Horner- 


Neufeld but could not repair the relationship. In November, Dr. Wiesenburg told her that  


she would be de-listed from SFOS on January 22, 2009.  


                    BythetimeHorner-Neufeld wasultimately de-listed, no Satisfactory report  


had been filed in over three years, her last report of Conditional had stood for two  


semesters, and she had been without an advisor or committee for nine months. She never  


submitted a satisfactory thesis project proposal to her advisors or took a comprehensive  




          C.        Proceedings  


                    1.        Discrimination complaint and appeals  


                    In April 2009, Horner-Neufeld filed a complaint with the University Office  


of Equal Opportunity (OEO).   She alleged discrimination, retaliation, and a hostile  


learning  environment.                She  requested  two  remedies:                  (1)  "accountability"  and  (2)  


compensation for the time and money she had invested in the program. When prompted  


for the bases of her discrimination claims, she selected age and gender.  


                    Earlina  Bowden,  the  OEO  director,  conducted  an  investigation  and  


produced a report, concluding that Horner-Neufeld had not been discriminated against  


or suffered a hostile learning environment.  Horner-Neufeld pursued additional review  


within the University system, but Bowden's conclusions were upheld.  


                    Horner-Neufeld appealed the University's decision to the superior court.  


Thesuperior court determined that Horner-Neufeldhad mistakenly(but understandably)  


pursued her claims through OEO rather than the academic appeals process.   It also  

                                                               -6-                                                        7147

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appeared that Horner-Neufeld had not been formally dismissed. The court remanded the  


case to the University and ordered Horner-Neufeld to pursue her claims through the  


academic appeals process.  The court also denied without prejudice Horner-Neufeld's  


motion for a trial de novo under Alaska Appellate Rule 609(b).  


                    2.        Formal dismissal and appeal  


                    One  month  later,  Dr.  Castellini,  who  was  now  dean  of  SFOS,  sent  a  


memorandum to the dean of the Graduate School formally recommending Horner- 


Neufeld's dismissal.  He summarized Horner-Neufeld's difficulties and concluded that  


Horner-Neufeld lacked an advisory committee as a result of her own poor performance,  


despite assistance and support from SFOS. He stated that without a committee, Horner- 


Neufeld could not file the annual Satisfactory report that was required to remain in good  




                    The dean accepted Dr. Castellini's recommendation and sent a formal  


notice of dismissal to Horner-Neufeld on May 20, 2013.  He stated two independent  


bases for his decision to dismiss:  (1) Horner-Neufeld was rated Conditional in spring  


2008 and thus was not in good standing and (2) Horner-Neufeld lacked a graduate  


committee due to her poor performance.  


                    Horner-Neufeld did not believe the academic appeals policy applied to her  


situation, but she pursued review through the University system "under protest."  The  


provostconvenedacommitteetoreviewHorner-Neufeld's dismissaland offered Horner- 


Neufeld the opportunity to submit supporting documents.  The appeals committee met  


in June 2013 and dismissed the appeal, finding that Horner-Neufeld had not provided  


sufficient evidence of arbitrary and capricious decisions by her advisors, SFOS, or the  


University. The committee observed that Horner-Neufeld "chose not to include several  


key pieces of evidence that could have . . . support[ed] [her] statements."  In particular,  


she provided no evidence of her research progress despite her core argument that she was  

                                                               -7-                                                        7147

----------------------- Page 8-----------------------

 dismissed as retaliation for complaints against faculty rather than for her inadequate                                                                                                            

progress.   The committee found "no evidence indicating that [she] had made progress                                                                                                                      

 toward completion of [her] comprehensive exams or [her] research."                                                                                                                 

                                   Horner-Neufeld   returned   to   the   superior   court.     She   argued   that   the  

 University had violated her due process rights and that she had an implied contract with                                                                                                                            

 the   University,   which   it   had   breached.     The   superior   court   rejected   all   of   Horner- 

Neufeld's arguments and she now appeals.                                                                         

 III.             STANDARD OF REVIEW                              

                                   In administrative appeals, we directly review the agency's factual findings                                                                                             


 for substantial evidence.                                                                                                                                                                                              

                                                                     We review the superior court's denial of a trial de novo for  



 abuse of discretion. 


                                   We review a school's compliance with its policies to determine if the  



 decision was arbitrary, unreasonable, or an abuse of discretion.                                                                                                            Whether university  


policies comply with due process is a question of law to which we apply our independent  



judgment.                        We grant substantial discretion to university faculty and administrators in  



 academic matters. 

                  3                Richards  v.   Univ.  of  Alaska ,  370  P.3d  603,  609  (Alaska  2016).  

                  4                Gottstein  v.  State,  Dep't  of  Nat.  Res.,  223  P.3d  609,  628  (Alaska  2010).  

                  5                Nickerson   v.   Univ.   of  Alaska  Anchorage ,   975   P.2d 46, 50   n.1   (Alaska  


                  6                Id.  

                  7                Bruner  v.  Petersen,  944  P.2d  43,  48  (Alaska   1997).  

                                                                                                             -8-                                                                                                             7147  

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                       Because it is a question of law not requiring agency expertise, we apply our                                              

independent judgment when determining whether a contract exists between a university                                                 

and a student.          8  

IV.         DISCUSSION  

                       In this appeal, Horner-Neufeld brings multiple challenges based on two  


University actions:  (1) the University's finding that she suffered no discrimination and  


(2)  the  University's  decision  to  dismiss  her  from  the  Ph.D.  program.                                                     Regarding  


discrimination, she challenges OEO's findings and investigative process and subsequent  


procedural decisions by the University and the superior court. Regarding dismissal, she  


argues that the University violated her procedural and substantive due process rights and  


breached an implied contract with her.  We reject these arguments.  


            A.         Discrimination  

                       Horner-Neufeld  filed  the  original  complaint  with  OEO  based  on  her  


understanding of "UAF's broad definition of discrimination" rather than "normally  


understood protected categories."  Although she chose age and gender when prompted,  


Horner-Neufeld does not actually argue discrimination on these bases, and we do not  


address them here.  


                       UndertheUniversity's policy, discrimination is defined as"beingadversely  


treated . . . in a manner that . . . makes distinctions on . . . some basis other than an  


individual's qualifications, abilities and performance."9                                            Horner-Neufeld argues two  


bases for discrimination.  First, she argues she was mistreated specifically in retaliation  


for making protected complaints. Second, she argues that because her grades were good  


and she was never placed on academic probation or given notice of performance issues,  


            8          Id.  at  47  n.5.  

            9          Regents'  Policy  P04.02.020(B).   

                                                                        -9-                                                                       7147  

----------------------- Page 10-----------------------

her advisors' and supervisor's adverse treatment of her must have been generally on                                                                                                                                                                                            

"some                      basis                 other    than    [her]                                           qualifications,                                     abilities                      and               performance,"                                        i.e.,  

discrimination under the University's definition.                                                                                                              

                                           Horner-Neufeld also raises procedural issues with the OEO investigation                                                                                                                           

itself and her subsequent appeals. Her core argument appears to be that because nobody                                                                                                                                                                         

gave her notice of performance issues, the faculty and administrators' actions towards   

her could not have been based on performance.                                                                                                              

                                           Horner-Neufeld thus challenges the OEO investigation as "incomplete"                                                                                                                             

based primarily on Bowden's failure to include information that suggested procedural                                                                       

deficiencies in her treatment. She argues that the interviewees must have lied to Bowden                                                                                                                                                                     

because there was "no documentation of [poor performance] claims" and that they made                                                                                                                                                                                  

false or pretextual statements about her performance in retaliation for her bringing the   

complaint.   She also challenges the superior court's denial of a trial de novo.                                                                                                                                                                          

                                            1.                   OEO's findings were supported by substantial evidence.                                                                                                           

                                           We review OEO's factual findings for substantial evidence, which is "such                                                                                                                                                 

relevant   evidence   as   a   reasonable   mind   might  accept   as   adequate   to   support   a  

                                         10         "We need only determine whether such evidence exists, and do not  


choose between competing inferences."11  


                                           As part ofher investigation, Bowden interviewed at leastsix staffmembers,  


administrators,  and  faculty,  including  two  of  Horner-Neufeld's  former  advisors  


(Drs. Iken andMcRoy) andHorner-Neufeld's 2008supervisor (Dr. Blanchard). Shealso  


reviewed Horner-Neufeld's complaint, the annual committee reports, and "numerous  


pages of emails" supplied by Horner-Neufeld and others.  


                      10                   Richards  v.   Univ.  of  Alaska ,  370  P.3d  603,  609  (Alaska  2016).  

                      11                   Id.  

                                                                                                                                     -10-                                                                                                                                            7147  

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                    Bowden found that Horner-Neufeld had not been discriminated against or  


suffered a hostile learning environment.   Rather, all of the allegedly discriminatory  


actions stemmed from Horner-Neufeld's own performance.   Bowden observed that  


Horner-Neufeld's advisors had raised concerns about her research abilities as early as  


2004 in her first committeereport. Bowden acknowledgedthat Horner-Neufeld's grades  


were good but stated that her advisors were concerned about her research, not her grades.  


Bowden saw no evidence of discrimination or a hostile learning environment but found  


"ample evidence that [Horner-Neufeld's] research performance was poor." Bowden did  


not explicitly address retaliation, but the absence of retaliation is similarly supported by  


Bowden's conclusion that the actions taken against Horner-Neufeld were based on her  


research performance rather than improper motives.  


                    Horner-Neufeld offers only competing inferences.  She points to positive  


comments that were omitted from Bowden's report.  She raises procedural deficiencies  


as evidence that she had no performance issues.  She places emphasis on her grades and  


minimizes the significance of her Conditional reports, arguing that neither report stated  


that her performance was "poor."  But she does not address the main problem with her  


OEO complaint - that she produced no direct evidence of discrimination and instead  


asked  Bowden  to  infer,  despite  ample  evidence  to  the  contrary,  that  she  had  been  


discriminated against.  


                    Bowden's findings are supported by substantial evidence.   The record  


suggests that Horner-Neufeld's advisors withdrew for reasons related to her research  


performance.  Her first pair of advisors, Drs. Konar and Iken, withdrew after Horner- 


Neufeld submitted an incomplete thesis proposal in July 2004 despite instructions in a  


Conditional report to complete a full proposal draft by February.   They had already  


reviewed and provided comments on several previous incomplete drafts, and Dr. Iken  


had suggested to Horner-Neufeld that she switch to a master's project that would be  

                                                              -11-                                                         7147

----------------------- Page 12-----------------------

moremanageable. Horner-Neufeld's                                                                                               relationshipwithDrs.McRoyandStekoll                                                                                                        followed  

a similar pattern:                                          Horner-Neufeld submitted incomplete thesis proposals; her advisors                                                                                                                                              

gave her feedback and then a deadline attached to a Conditional report; and when she                                                                                                                                                                                                         

 submitted yet another incomplete draft in March 2008, Dr. McRoy resigned as her                                                                                                                                                                                                             

advisor.  According to that same Conditional report, Horner-Neufeld consistently sent  

draft grant proposals without allowing enough time for feedback and revision.                                                                                                                                                                                                         As a   

result, she only received one research grant in 2005-2006 and only submitted one grant                                                                                                                                                                                                 

proposal in 2006-2007.                                                             Without a well-developed thesis proposal, it was difficult for                                                                                                                                             

Horner-Neufeld   to   obtain   research   funding,   but   her   failure   to   obtain  such   funding  

likewise imperiled the success of her thesis project.                                                                                                                             

                                              Nobody disputes Horner-Neufeld's solid performance in the course work                                                                                                                                                                    

component of her degree program, but there was ample evidence to show that she                                                                                                                                                                                                              

 struggled with her research.                                                                        No matter her achievements in the classroom, Horner-                                                                                                                   

Neufeld, after six years, four advisors, and multiple drafts with feedback, had never                                                                                                                                                                                                

 submitted a complete proposal for the core requirement of her Ph.D. program - a thesis                                                                                                                                                                                           

                                                                                                                                                                                                                                12           The  University's  

that   would   contribute   to   the   body   of   knowledge   in   her   field.                                                                                                                                                                            

conclusion that her negative experiences were a result of her poor performance was  


 supported by substantial evidence.13  


                       12                     Horner-Neufeld does not argue that her advisors should have accepted any                                                                                                                                                                       

of her draft thesis proposals as complete; in May 2008, over five years into her ten-year                                                                                                                                                                                    

program, she had just developed an outline for yet another new thesis project.                                                                                                                                                                                               

                       13                     Horner-Neufeld raised two additional allegations in her OEO complaint,  


which  we  address  only  briefly.                                                                                        First,  Horner-Neufeld  claims  that  Dr.  Blanchard  


retaliated against her by terminating the supervisor-student relationship because she told  


him she would "take this further" when he dropped her from the research trip.  Bowden  


found that Dr. Blanchard was justified in terminating the relationship because Horner- 


Neufeld left the state. Second, Horner-Neufeld claims that Dr. Wiesenburg "threatened  



                                                                                                                                              -12-                                                                                                                                      7147

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                       2.          OEO's investigation was thorough and legitimate.                          

                       Under University               regulations,Bowdenwasrequired to consider "therecord                                   


as a whole, . . . the totality of the circumstances, and . . . regulatory guidelines."                                                         The  


record shows that she did so.   She interviewed every person implicated in Horner- 


Neufeld's complaintand reviewed all documentssubmitted,andsheexpressly referenced  


the Regents' Policy definition of discrimination. Bowden collected several perspectives  


on the events Horner-Neufeld described, engaged in a detailed analysis of the witnesses'  


statements, and specifically described where and why she declined to credit Horner- 


Neufeld's  allegations.                     Although  Horner-Neufeld  contends  that  Bowden  did  not  

                                                                                                                             15  and Horner- 


interview her, the University's regulations require no such interview, 

Neufeld  does  not  explain  what  additional  evidence  such  an  interview  would  have  


uncovered that was not sufficiently addressed by her complaint. Bowden's investigation  


appears thorough and compliant, and Bowden found no indication that Horner-Neufeld  


had been treated differently based on any factor other than her academic performance.  


                       Horner-Neufeld provides no support for her contention that Bowden's  


interviewees retaliated against her in their statements during the OEO investigation. She  


apparently falls back on her core argument that because she was provided with no notice  


of performance issues, any statements suggesting poor performance must be false.  But  


            13         (...continued)  


[her] with dismissal fromthe program" when she raised her concerns about her treatment  


by Drs. Konar and Iken.  Bowden found that, rather than discriminating or retaliating  


against her, Dr. Wiesenburg tried to help her; although he did inform her that she needed  


to find an advisor or else she would be dismissed, he used discretionary funds to help her  


find that advisor.  Substantial evidence supports Bowden's findings.  

            14         University Regulation R04.02.020(E)(3).  


            15         University Regulation R04.02.020.  


                                                                        -13-                                                                  7147

----------------------- Page 14-----------------------

 as we have already explained, there was substantial evidence, supported not only by                                                                                                                                                                                                                                                               

interviewees' statements but also by the administrative record, to show that Horner-                                                                                                                                                                                                                                         

Neufeld struggled with the research component of her Ph.D. program.                                                                                                                                                                                                                            There was also                                 

 substantial evidence to show that, rather than retaliate, the SFOS administration tried to                                                                                                                                                                                                                                                            

 support her.                                     Horner-Neufeld raised her initial complaints about Drs. Konar and Iken in                                                                                                                                                                                                                            

February   2005;   rather   than   retaliating   by   dismissing   her   immediately,   the   program  

provided funding and offered faculty incentives to help her with her advisor search;                                                                                                                                                                                          

provided additional research funding in 2007 after she was unsuccessful in winning any                                                                                                                                                                                                                                                          

grants; and monitored her situation and worked to address problems, such as arranging                                                                                                                                                                                                                                   

 for mediation with Dr. Blanchard.                                                                                                              Horner-Neufeld's attempts to impeach individual                                                                                                                     

interviewees by challenging specific facts unrelated to her research performance are                                                                                                                                                                                                                                                             

ultimately irrelevant in light of the ample evidence showing that she had difficulty                                                                                                                                                                                                                                   

developing a complete thesis proposal and winning research grants.                                                                                                                                                                                     

                                                      3.	                        The superior court did not abuse its discretion by denying a trial                                                                                                                                                                                      

                                                                                  de novo.                             

                                                      Under Alaska Appellate Rule 609(b), the superior court has the discretion                                                                                                                                                                                        

to grant a trial de novo in an appeal from an administrative agency.  This procedure is                                                                                                                                                                                                                                                                


"rarely warranted."                                                                                                                                                                                                                                                                                                                  

                                                                                        A trial de novo is appropriate, inter alia, "where the agency record  


is inadequate; where the agency's procedures are inadequate or do not otherwise afford  

                                                                                                                                                                                               17          Those circumstances are not present  


due process; or where the agency was biased." 


                                                      As  discussed  above,  the  OEO's  investigation  of  Horner-Neufeld's  


discrimination complaint - and the record thereof - was thorough. Although Horner- 


                            16                        S.  Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Bd.                                                                                                                                                                                                                   

of Adjustment                                            , 172 P.3d 774, 778 (Alaska 2007).                                                                                                              

                            17	                       Id.  

                                                                                                                                                                        -14-	                                                                                                                                                              7147

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Neufeld alleges that theinvestigation                                                                                            was inadequatebecauseBowdenfocused                                                                                                             primarily  

on the protected categories of gender and age, Bowden's report does not support this                                                                                                                                                                                                               

claim; her analysis extended beyond these categories in her conclusion that Horner-                                                                                                                                                                                                 

Neufeld's   poor   performance   was   the   sole   reason   for   her   negative   feedback   and  

experiences. And                                               as explained above, Horner-Neufeld didnotsupport                                                                                                                                    her allegation that  

the interviewees' statements about her poor performance were mere pretext made in                                                                                                                                                                                                                        

retaliation for her complaint; thus there is no evidence of agency bias. We conclude that                                                                                                                                                                                                           

the superior court did not abuse its discretion by denying a trial de novo on Horner-                                                                                                                                                              

Neufeld's discrimination complaint.                                                       

                        B.	                    Procedural Claims   

                                               Horner-Neufeld makes several procedural claims, which we address in two                                                                                                                                                                              

 stages.   First, we determine whether the University complied with its own procedures                                                                                                                                                                                    

when dismissing Horner-Neufeld.                                                                                             Second, we determine whether Horner-Neufeld's                                                                        

dismissal   complied   with   the   due   process   owed   to   her   under   the   Alaska   and   U.S.  


                                                1.	                    The University complied with its own procedures in dismissing  



                                               Horner-Neufeld  argues  that  under  the  University's  policies  governing  


academic discipline, she was not given proper notice for her dismissal.   We review  


whether the University's application of its dismissal policy was arbitrary, unreasonable,  


                        18                     See  U.S.  Const.  amend.  XIV;  Alaska  Const.  art.  I,    7.  

                                                                                                                                                  -15-                                                                                                                                                        7147  

----------------------- Page 16-----------------------


or an abuse of discretion                        and determine whether the University substantially complied                                     

with its published policies.                      20  

                         The University publishes three documents relevant to this matter:  (1) the  


academic  catalog;  (2)  the  SFOS  Graduate  Student  Manual;  and  (3)  the  Graduate  


Advising  Manual.                     Both  the  Graduate  Student  Manual  and  the  Graduate  Advising  


Manual defer to the catalog as the "ultimate authority" for policies, regulations, and  




                         The academic catalog  is published  annually  and  contains  policies and  


regulations,including graduationrequirements. Althoughagraduatestudent may choose  


which catalog to use for his or her degree requirements, the student is subject to "[a]ll  


non-academic policies and regulations listed in the current catalog."  According to the  


academic catalog, a student may be disqualified from graduate study by the dean of her  


school based on poor performance. The catalog also defines requirements for remaining  


in "good standing."  In the 2002-2003 catalog, good standing is defined solely based on  


grades - the student "must maintain a cumulative GPA of 3.0."   However, "good  


standing" was modified in later catalogs; as of 2004-2005, students were also required  


to have filed an annual Satisfactory committee report to remain in good standing and  


avoid being placed on probation.  This updated definition was still in effect as of the  


2008-2009 catalog.21  


             19          See Nickerson v. Univ. of Alaska Anchorage                                        , 975 P.2d 46, 50 n.1 (Alaska             


             20          Id. at 50.  


             21          The 2002-2003 catalog would have been in effect when Horner-Neufeld  


entered the program.  The 2008-2009 catalog would have been in effect when Horner- 


Neufeld was de-listed from SFOS.  In his 2013 memorandum formally recommending  



                                                                             -16-                                                                       7147

----------------------- Page 17-----------------------

                                                   The   Graduate   Student   Manual   is   a   handbook   produced   by   SFOS   and  

intended as a guide for SFOS students.                                                                                                                 It provides details for the advisor and advisory                                                                                                   

committeeselection process,                                                                                  statingthat thefaculty member and the committee members                                                                                                                                    

must agree to serve in those roles.                                                                                                           It provides                                        a   recommended timeline for Ph.D.                                                                                 

students completing their degrees within five years.                                                                                                                                                          Although the Graduate Student                                                                  

Manual   does   not   discuss   good   standing  or  dismissal   policies,   it   lists   as   a   degree  

requirement that Ph.D. students must submit a committee report annually.                                                                                                                                                                                                                     

                                                   On the opposite side of the relationship, the Graduate Advising Manual is                                                                                                                                                                                                         

a handbook produced by the Graduate School and intended as a guide for faculty.                                                                                                                                                                                                                                           The  

Graduate Advising Manual repeats the requirement that a Satisfactory committee report                                                                                                                                                                                                                               

must   be   filed   annually   and   explains   the   consequences   of   a   Conditional  report:   

"[S]tudents who fail to correct deficiencies indicated by Conditional or Unsatisfactory                                                                                                                                                                                            

reports can be dismissed on recommendation of their committee, Department Chair, and                                                                                                                                                                                                                                          

Dean." The                                    Graduate Advising Manual also describes a written warning requirement for  

dismissals due to inadequate progress:                                                                         

                                                   "Fair Warning" means adequate notice to the student that                                                                                                                                                             

                                                   dismissal is a probable or certain consequence of his or her                                                                                                                                                            

                                                   performance or actions. This notice can simply be catalog                                                                                                                                               

                                                   policies . . . . In the case of dismissal for inadequate progress,                                                                                                                                

                                                   the   student   must   receive   a   written   warning   of   pending  

                                                   dismissal at least one semester before the dismissal occurs                                                                                                                                                

                                                   and   be   given   a   reasonable   opportunity   to   demonstrate  

                                                   adequate progress. . . .                                                     

                                                   The   committee   must   document   the   lack   of   progress   with  

                                                   "conditional"    or    "unsatisfactory"    Reports    of    Graduate  

                                                   Advisory Committee . . . over a period of at least a year. An                                                                                                                                                            

                          21                       (...continued)  


dismissal,  Dr.  Castellini  cited  the  2008-2009  definition;  Horner-Neufeld  did  not  


challenge this in her academic appeal.  

                                                                                                                                                              -17-                                                                                                                                                       7147

----------------------- Page 18-----------------------


                    explicit dismissal warning must be issued, in writing, at least  


                    one semester before the dismissal can occur.  


                    The parties dispute the applicability of the Graduate Advising Manual.  


Horner-Neufeld argues that the University was required to comply with the dismissal  


procedures in the Graduate Advising Manual and did not provide a written dismissal  


warning at least one semester before she was dismissed in 2009. She claims that because  


University regulations direct students to become informed about rules and procedures,  


she could reasonably rely on the Graduate Advising Manual as a source of procedural  


rights.       The  University  replies  that  "Horner-Neufeld's  attempts  to  attach  greater  


significance to the [Graduate Advising Manual] are mistaken."  


                    We  conclude  that  the  Graduate  Advising  Manual  did  not  create  any  


procedural rights.  The Graduate Advising Manual is expressly directed at faculty, not  


students; it defers to the academic catalog as the "ultimate authority" for academic  


policies.  However, even if the Graduate Advising Manual were binding, we conclude  


that the University substantially complied with its policies.  


                    Horner-Neufeld  was  dismissed  due  to  unsatisfactory  performance  and  


because she lacked a committee.  She had adequate notice of her responsibilities as a  


student with respect to both of these conditions and their consequences.  The catalog  


stated that she could be "disqualified from graduate study" if her performance was  


deemed unsatisfactory.  The catalog required her to file a Satisfactory committee report  


every year to remain in good standing, and she needed to have an advisor and committee  


in order to obtain this report.  She knew from the Graduate Student Manual that faculty  


members needed to consent to serve as her advisor and committee members.  She knew  


from Dr. Wiesenburg's letter in February 2005 that she would be dismissed if she had  


no advisor.  She was told after Dr. McRoy withdrew that she needed to establish an  

                                                              -18-                                                         7147

----------------------- Page 19-----------------------

advisory committee for fall 2008 and that developing a successful working relationship                                                                                                                                                                                                                    

with Dr. Blanchard was her last chance to accomplish her goals.                                                                                                                                                                                                    

                                                     Horner-Neufeld   also  had   adequate   notice   that   she   was   in   danger   of  

dismissal due to lack of progress.                                                                                                       The Graduate Student Manual said that her project                                                                                                                                   

 should be "fairly well outlined" within one and a half years.                                                                                                                                                                                She knew from the catalog                                                      

that   she   was   required   to   complete   all  of   her   Ph.D.   requirements   within   ten   years,  

including her course work, comprehensive examination, thesis, and oral defense.                                                                                                                                                                                                                                                         But  

five years into the program, she still had not developed a satisfactory thesis proposal.                                                                                                                                                                                                                       

                                                      The   Graduate   Advising   Manual   itself   says   that   a   failure   to   correct  

deficiencies in a Conditional report can lead to dismissal based on committee and dean                                                                                                                                                                                                                                                

recommendation.   Horner-Neufeld received written notice of Conditional status twice,                                                                                                                                                                                                                                            

 specifically due to her lack of a complete thesis proposal; she received the second                                                                                                                                                                                                                                        

Conditional report shortly after her committee meeting in December 2007, which gave                                                                                                                                                                                                                                                   

her two semesters of notice before she was de-listed in January 2009. She did not fix the                                                                                                                                                                                                                                                    

condition in that report because she did not prepare a detailed thesis proposal by the                                                                                                                                                                                                                                                      

March 2008 deadline.                                                                      She does not dispute that she failed to meet this requirement.                                                                                                                                     

                                                     Accordingly, we conclude that the University abided by its policies here.                                                                                                                                                                                                       

                                                     2.	                        Horner-Neufeld's    dismissal    complied    with    academic    due  


                                                      To  satisfy  due  process  under  the  Alaska  and  U.S.  Constitutions,  an  


academic dismissal requires only                                                                                                           notice and                                     a careful decision:                                                                 "[D]ue   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                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                          22          Notice must precede  

(2)  the ultimate decision to dismiss is careful and deliberate."                                                                                                                                                                                                                                                        



                                                     Nickerson,  975  P.2d  at  53  (citing Bd.  of  Curators  of  Univ.  of  Mo.  v.  


                                                                                                                                                                     -19-	                                                                                                                                                                             7147  

----------------------- Page 20-----------------------

dismissal "by a reasonable time so that a student has a reasonable opportunity to cure his                                                                               

                                                             23                                                  24  

or her deficient performance."                                                                  

                                                                  No hearing is required. 

                           Both requirements are satisfied here. As explained above, Horner-Neufeld  


received notice about her responsibilities as a student, including that she needed to have  


an  advisor  and  a  committee  and  that  she  could  be  dismissed  for  unsatisfactory  


performance.  The program made clear to her that it was dissatisfied and gave her a  


reasonable opportunity to cure both conditions.  


                           With respect to the advisor, the program gave Horner-Neufeld notice in  


February 2005 that not having an advisor would lead to her dismissal. The program also  


gave her a reasonable opportunity to cure the issue and helped her with the advisor  


search by funding her trip to Juneau to meet Dr. Stekoll.  When Dr. McRoy withdrew in  


spring 2007, she was again told that she needed to have an advisor.  With respect to her  


unsatisfactory performance, she knew that she was responsible for filing an annual  


Satisfactory report and that a Conditional report could lead to dismissal.  Her advisors  


and committee made clear to her through two Conditional reports in writing that she  


needed to submit a complete thesis proposal.  She had notice of dissatisfaction with her  


progress after the committee meeting in December 2007 and the requirement to submit  


              22           (...continued)  


Horowitz, 435 U.S. 78, 85 (1977)).  

              23           Id.  



                           Id.  Horner-Neufeld argues that she was owed a hearing under the theory  


that she had a property interest in her continued enrollment.  We have not previously  

held that such a property interest exists, and we are not persuaded to hold so here.                                                                                  See  

Richards v. Univ. of Alaska                           , 370 P.3d 603, 613 (Alaska 2016). Our cases follow the lead                                                     


of the U.S. Supreme Court in holding that no hearing is required.  See Horowitz, 435  

U.S.  at 90 ("[W]e decline to . . . formalize the academic dismissal process by requiring                                                                   


a hearing.").  

                                                                                   -20-                                                                             7147

----------------------- Page 21-----------------------


a  proposal  by  March  2008;  she  did  not  meet  this  requirement.                                  She  was  given  a  


reasonable opportunity to cure her Conditional status; the deadline was even extended  


from January to March after she raised concerns.  Thus, the University met the notice  



                    The University also met the requirement that the decision to de-list Horner- 


Neufeld in January 2009 was careful and deliberate. Horner-Neufeld had struggled with  


research since at least her first Conditional report in January 2004.  In six years, she  


never produced a satisfactory thesis proposal despite requests, with deadlines, from her  


advisors,  and  despite  the  Graduate  Student  Manual's  guidance  that  a  proposal  be  


developed within 18 months.  Research funding was critical for her success, but she had  


trouble winning and even submitting grant proposals.   She also struggled to find an  


advisor; her first search took eight months, and because of her chosen research area,  


there were few faculty members who were qualified to supervise her. Dr. Blanchard, her  


2008 supervisor, was her last opportunity to succeed in having an advisor, and when that  


relationship broke down, the program was unable to repair it through mediation.  The  


program observed Horner-Neufeld's progress for six years; it is difficult to characterize  


the decision as anything other than careful or deliberate.  


                    We therefore conclude that the University satisfied the requirements of  


procedural due process.  


          C.        Substantive Due Process  


                    Horner-Neufeld next claims that her substantive due process rights were  


violated.        We  have  held  that  a  university's  dismissal  decision  denies  the  student  


substantive due process if that decision is "such a substantial departure from accepted  


academic norms as to demonstrate that the person or committee responsible did not  

                                                              -21-                                                         7147

----------------------- Page 22-----------------------


actually   exercise   professional   judgment."                                        We   allow   faculty   and   administrators  

substantial discretion inacademicdecisionsandrecognizethat                                                        courts"should showgreat               

respect for the faculty's professional judgment."                                         26  


                         As explained above, Horner-Neufeld was dismissed due to unsatisfactory  


performance and because she lacked a committee.  Bowden's OEO investigation found  


ample evidence of poor performance; we grant substantial discretion to the faculty  


members' evaluations of the completeness of Horner-Neufeld's draft thesis proposals,  


the quality of her grant funding submissions, and her overall progress in the annual  


committee reports.  In her academic appeal to the University, Horner-Neufeld did not  


challenge OEO's conclusion by providing evidence of research progress, and even her  


current arguments rely on her grades without addressing her research.  Horner-Neufeld  


also does not dispute that she lacked an advisor and a committee, nor does she provide  


any evidence to suggest that the University departed from academic norms.  


                         Given that after six of the maximum ten years to complete a Ph.D., Horner- 


Neufeld had exhausted relationships with four co-advisors and a potential fifth advisor,  


had never submitted a complete thesis proposal, had struggled to win grants, and had not  


yet taken her comprehensive exam, her dismissal was not a substantial departure from  


accepted academic norms.  


            D.           Implied Contract  


                         Finally,  Horner-Neufeld argues that the University's alleged failure to  


comply with its own regulations constituted a breach of obligations under an implied  


contract.  Horner-Neufeld also argues that we should impose an implied covenant of  

            25           Hermosillo v. Univ. of Alaska Anchorage                                    , No. S-10563, 2004 WL 362384                  

at *4 (Alaska 2004) (quoting                            Regents of Univ. of Mich. v. Ewing                                 , 474 U.S. 214, 225     

(1985));  see also Bruner v. Petersen                               , 944 P.2d 43, 48 (Alaska 1997).                 

            26           Ewing, 474 U.S. at 225.  


                                                                             -22-                                                                      7147

----------------------- Page 23-----------------------

good faith and fair dealing as an additional term in this implied contract. The University                                                                                                                                                                                                                                                                              

argues there was no contract.                                                                                                                

                                                               We need not decide whether an implied contract existed.                                                                                                                                                                                                                                 As discussed   


earlier, the University complied with its policies in dismissing Horner-Neufeld such that  

it would not have been in breach even if a contract existed.                                                                                                                                                                                                                             And even if the University                                                     

were required to act in good faith toward Horner-Neufeld, this covenant was surely                                                                                                                                                                                                                                                                                                         

 satisfied by the University's efforts to help Horner-Neufeld find and maintain an advisor                                                                                                                                                                                                                                                                                              


by providing financial support, monitoring the relationships, and attempting mediation,  

and by the evidence supporting our earlier conclusion that Horner-Neufeld's dismissal                                                                                                                                                                                                                                                                                         


did not substantially deviate from academic norms.  

V.                              CONCLUSION  

                                                               For these reasons, we AFFIRM the superior court's decision.                                                                                                                                                                                             

                                                                                                                                                                                                    -23-                                                                                                                                                                                            7147

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