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.