Clinical Credit? Texas Southern University Law Students Sue Over Poor Grades

Texas Southern University Jonathan Chan and Karla Ford have created their own form of clinical education. They are suing the law school in the Southern District of Texas for the D grades given to them by adjunct professor Shelley Smith teaching a first-year contracts class. They allege that the grades were “arbitrary and capricious” and meant to “curve them out” of the class.

The basis for the lawsuit is breach of contract, but the faculty is likely to argue that the questionable basis for lawsuit reaffirms the grade given by the adjunct professor. They add equally bizarre claims of defamation, and intentional and negligent infliction of emotional distress as well as negligence by the law school.

Chan, 26, and Ford, 27, say that the adjunct, who is a partner at a Chicago law firm, refused to explain the grades.

They are represented by attorney Jason Bach and they are seeking reinstatement to TSU’s Thurgood Marshall School of Law as well as compensatory and punitive damages.

I am afraid that I would not give them much higher points for torts based on these claims. If the defamation claim is based on the grades themselves, it  is a curious claim since it is the lawsuit that publicized the grades. Moreover, most students experience emotional distress with poor grades but it hardly satisfies the standard under the common law. Notably, in Shinn ex rel. Shinn v. College Station Indep. Sch. Dist., 96 F.3d 783 (5th Cir. 1996), the court addressed a negligent infliction claims based on the alleged poor performance and abusive language of a high school teacher. The court held “a constitutional violation does not occur every time someone feels that they have been wronged or treated unfairly. There is no constitutional right to be free from emotional distress.”

Likewise, in Allison v. Howard Univ.,209 F. Supp. 2d 55 (D.D.C. 2002), Howard University law student Albert Allison sued the law school that expelled him after subjecting him to an improper grading process by wrongfully ratifying the expulsion. The court rejected all of the contractual and tort claims.

The odds against such a lawsuit are enormous. Schools actually have an incentive not to expel students. Moreover, absent a complete lack of review in the awarding of a grade, courts are unlikely to second-guess such grades. This is why I threw my exams down the stairs three times to be sure that I have the distribution correct.

The claim of being “curved out” could be made against any curved system. Generally such curved work to the advantage of students as schools try to avoid putting their students at a disadvantage in the market against schools with higher curves. However some schools are certainly known for the approach of “admit 60 graduate 6” — adding the marketability of students with a hard knocks reputation. That is fairly rare however.

Source:  Chroncileas first seen on ABA Journal

20 thoughts on “Clinical Credit? Texas Southern University Law Students Sue Over Poor Grades”

  1. It’s one thing if a student legetimately earned a D grade. However, there is something is very wrong when the school does not allow the student to see the graded exam. Even if it is true that these two students deservedly got the bad grades, what is the law school hiding by not letting them see their exam?

  2. I support them. Grading on a bell curve is not only unfair, it is a grading system based on a falsehood. Theoretically, you could score a ’90’ on an exam, but receive a C, if the average grade in the class was 90. It is even more suspicious when a professor refuses to show the graded test to the student. Many of these law schools have, for some time, continually failed out students after taking their money for the first semester, or first year. People should quit giving money to these schools! They simply operate for a profit and don’t care whether the students learn, graduate or get jobs. the professors are notoriously callous. Unemployment for lawyers is an epidemic now, due to all these new law schools cropping up all over the U.S.A. And the lawyers who are employed, don’t have the lifestyles they pretend to. In fact, many of them earn about the same, or less than, as the average plumber and owe 100,200 or 300K in student loan debt.

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  4. The curve gives one paws. What if a school recruited the top 30 genuis students from colleges and universities around the country and put them into one class at Thurgood Marshall. Then they all sat through Contracts I and listened to some schmuck recite a textbook to them every day. These people all ace the multiple choice test which is given by the ABA to admit lawyers into the Bar. Should they not all receive A grades? Suppose then the teacher gives an essay test and grades the students and imposes hisher own “curve”? Not fair. I am a dog and have not taken a bar exam but it is not the same as a stool sample. I suppose it depends on what you sit on, stool, chair, cushion on the ground–which will alter a perspective.

  5. Because of certain statistical quirks, grading on the Bell Curve (aka Normal Curve) is inherently unfair. One phenomenon is called ‘drift toward the mean’ and another is the Flynn Effect. I am sure Dr. Slarti may have some opinions as well, given that he is a mathematician.

    The school my daughter has been attending has a policy of grading on set cutoff points. For example, 70 is the cutting point between a C and D. This is actually a much better system. For one thing, if the grades do not show a normal curve over time, either the professor is doing something wrong, or the school has an unusual number of people of equal talent.

    When I was in about the seventh grade, I had a teacher who would throw out an entire test if anyone made a perfect 100. She said that if anyone made a perfect score then it meant the test was not measuring the full ability of the students. In statistical speak, she was saying that if anyone hit the ceiling of the test, then it did not test them to 100% effort.

  6. My daughter’s friend at Harvard Law had Elizabeth Warren for contracts, and as a bonus Harvard does not use the curve. My daughter hates the curve at UT but she us doing very well in spite of it.

  7. I do remember a couple of law professors that might fit this label, but Geometry comes to mind even quicker. What is the statute of limitations on teachers being capricious??

  8. Arbitrary anc capricious brings up the subject of multiple choice. I would go the the Texas Bar Exams over the past ten years and extract multiple choice questions. Alter them a bit but employ multiple choice. There is less subjective grading. Also, anonymous grading. Teach does not know who number 7 is.

  9. grades were “arbitrary and capricious”, and ?
    Seems to me unless exams and class performance can be graded solely on impartial, objective data there will always be capriciousness and arbitrariness. I don’t like you and therefore there is a good chance I will be less able to objectively evaluate you.

  10. Without more facts I’m not foreclosing the possibility of purposeful actions by the professor. However, curves play a very important role in the educational process. Exams constructed by individual professors might be overly hard and/or the professor might not have taught the class well. When I was in grad school, the impenetrable course of “Social Work Statistics” had a final where the highest grade was 45. Had there not been a bell curve put in use, all 25 of us would have failed. I got an A- with a 36.

  11. I wonder what Thurgood would think of this. If he were around he just might be the lawyer for Chan. Most lawyers and most folks in the public who think of Thurgood Marshall think of him as a judge for many years. He was a fantastic lawyer and argued many cases in the U.S. Supreme Court prior to being Solicitor General, while he was Solicitor General. Lyndon Johnson appointed him to Solicitor General and then to the Supreme Court. This school in Texas honors him. A team of students should get some inquiring minds and look into this Professor. If he can not grade someone on such topics as Offer and Acceptance then he should be given an offer. Justice is blind and in the case of law schools they can be more blind than justice allows. This case should be the Moot Court topic across America. There are a lot of issues here: failure to state a claim, standing, malicious prosecution, breach of contract, tortious conversion of a grade, discrimination on the basis of name.

  12. mespo,

    ditto….and the days of Blue Books….it is kinda of funny….when you see a grade change within the exam answers itself….You know damn well there is a curve….

  13. Gene H:

    “What’s the deal with Contracts professors? ”


    Look after “Offer,” Acceptance,” Consideration,” and “Performance,” what else is there to talk about? The UCC! 😀

  14. What’s the deal with Contracts professors? Almost everyone I know who went to law school seems to have a story about their Contracts professor.

  15. I think these two have a high hill to climb, but I’ve met my share of “arbitrary graders.” I once had a Federal Civil Procedure professor who got the holding in Pennoyer v. Neff wrong and expected us to regurgitate it back wrong on the essay exam. He was gone the next semester. So I can see the possibility of unfairness here. I just wonder why this wasn’t handled under the law school’s grievance procedure, whether informal or formal. We never had any problem discussing grades with profs or the dean, if necessary.

    My law school had a strict Bell Curve approach, the fact of which, was plastered on every transcript. I’m not sure it helped.

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