Making the Grade

By Michael A. Olivas

Faculty members should not be surprised that there is no judicial case in which a student sued successfully to change a grade properly awarded in a course. Any number of arbitrary or wrongly-awarded grades have been arbitrated, overturned internally, or ordered changed through an adjudication short of trial, but grading has proven to be a central protection afforded teachers, absent any evidence of wrongdoing on the part of the professor. (Grades being traded for sexual favors comes to mind here, and there are such cases on the books.)

Professors have been dismissed over grading practices, at least in part, as was evident in Parate v. Isibor, and the refusal to alter grading practices is not always a constitutionally protected activity. When a professor was demoted in rank over a grading dispute in which a faculty committee determined that the professor had acted out of spite towards the student, the court held that his behavior constituted sanctionable conduct.

In a case tried in a Massachusetts court, David Keen brought an equity claim in 1984, claiming that Western New England College of Law had violated his rights as a student by denying him the chance to retake an exam which he had failed, by refusing to assign him the grade he made in another course, and by assigning a letter grade rather than a numerical grade in a third course. The judge dismissed the claim, and in 1986 the appeals court affirmed the decision.

A variety of other legal theories has been unsuccessfully utilized by students to try and overturn grades they thought were unfairly awarded. For example, students have tried to make the following theories stick: a state civil rights statute, federal Privacy Act statute, procedural and substantive due process, Section 1983 (a federal civil right statute), and Title IX (a federal gender equity statute). None of these theories has prevailed, but their variety indicates the widespread use of the courts to grieve grades. In my own institution, a state district judge ordered a professor to turn over standardized exam sheets, in order to review them for alleged racial bias. Fortunately, the case died when the student failed to prosecute further.

Occasionally governments will get into the act, intervening either to require a certain grade for benefit eligibility (such as President Clinton's original Hope Scholarship proposal) or to force colleges to award grades contingent upon military service, as when New Jersey passed a Desert Storm-era statute requiring state colleges to allow students to take their grade "based upon the work which the student had completed up to the time when the student was called to active service." Of course, federal legislation concerning students with disabilities requires appropriate accommodations such as exam modifications and variation in test administration, including test timing and format.

These cases make for interesting reading, and many offer valuable lessons about what not to do. Institutions should make certain that there is a safety valve for students who feel that a fundamental unfairness occurred: by this I mean a major mistake on the part of the instructor, not just that the exam was harder than students thought it would be. Many problems arise when professors do not clearly express their expectations, do not accurately convey the totality of material to be covered, or do not mark the papers sufficiently well to enable students to gauge how they missed the proper answers. (I have had only two students "go over my head" in my nearly-twenty years of teaching undergraduates, graduate students, and law students. Both times, the thoroughness of my comments on the exams or papers convinced the reviewer that my evaluations had been fair. Interestingly, both happened when I was a visiting professor away from my home institution. I did not resent being "second-guessed" either time, despite the students' hostility.) Departments or colleges should have formal means by which students can bring substantive complaints over grading.

Finally, many grade disputes arise due to faculty carelessness--in designing an exam, in making it proportionate to the attention paid in class, in the psychometrics of the grading, and in not making deviations from the correct answer(s) clear in the marking of responses. I have seen foolish or careless exam questions, including ones that have contained ethnic or gender stereotypes (using José or Maria or Rufus for criminal law perpetrator examples), and I know colleagues who refuse to meet with students about exams. Stale exams are also a source of problems, not the least of which is test security. These practices deny students a fair and thorough process. As with so many other areas of academic life, we should police ourselves before the New Jersey legislature does so.

Michael A. Olivas teaches law at the University of Houston and serves as AAUP's General Counsel. His views do not necessarily reflect those of the Association. Further discussion of grade appeals appears in the September/October 1997 issue of AAUP's journal Academe, in the report of Committee A on Academic Freedom and Tenure.

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