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Court of Appeal, First District, Division 2, California.

Richard B. PAULSEN, Jr., Plaintiff and Respondent, v. GOLDEN GATE UNIVERSITY, Judith McKelvey, et al., Defendants and Appellants.

Civ. 41337.

Decided: June 06, 1979

Paul S. Jordan, Michael P. Carbone, Jordan, Walsh, Lawrence, Dawson & Carbone, San Francisco, for defendants and appellants. Charles Cline Moore, San Francisco, for plaintiff and respondent.

Appellants Golden Gate University and Judith McKelvey, Dean of the School of Law, appeal from a declaratory judgment that respondent Richard Paulsen is entitled to a Doctor of Jurisprudence degree.

Golden Gate University is a private educational institution. In the fall semester of 1971, respondent enrolled at the University's School of Law as a full time student and continued in this status for three years. He also “studied law” there for a fourth year under circumstances which are described below.

The requirements for the granting of a Doctor of Jurisprudence degree were set forth in the annual bulletins issued by the University. These requirements were as follows: 1) Three years in residence as a student in the Day Division of the Law School carrying not less than 24 units each year, or four years in residence as a student in the Evening Division of the Law School; 2) Completion of 84 units of study in accordance with the prescribed curriculum; and 3) A cumulative grade point average of 2.0 or better in all grades.

Students in the School of Law were also subject to additional academic requirements: An average of 2.0 was required for each year's work and for all work completed in order to maintain satisfactory status. A student whose average for any year or whose cumulative average for all years was below 2.0 (or below a 1.75 at the end of the first year) could continue for the following academic year on probation only with the consent of the Committee on Academic Standards. Any student who wished to seek such consent had to file with the Office of the Dean a petition to be permitted to continue on probation.

Therefore, it was required of all students that they maintain, as of the end of each academic year, a cumulative grade point average of 2.0 on all graded courses. Students falling below this average after the first year were automatically disqualified from the school and were required to petition the Committee on Academic Standards for permission to continue as probationary students.

In respondent's first year of study he failed Civil Procedure and got an unsatisfactory grade in Contracts. His cumulative grade point average was 1.64. He petitioned the Academic Standards Committee for permission to continue in school. His petition was granted subject to the conditions that he retake the course in Civil Procedure and that he limit his course load to 26 units. (Exh. 6)

At the end of respondent's second year, his cumulative grade point average was 2.0, and he was removed from probation.

At the end of his third year, respondent's grade point average again fell below 2.0, to 1.92. In addition, he had not completed the requisite 84 units for graduation. He spoke with Dean McKelvey about his status and was told that he had “flunked out.” Subsequently, respondent petitioned the Committee on Academic Standards to be allowed to continue the fourth year. The petition was denied. Respondent testified that he spoke with Dean McKelvey about the reasons for the Committee's ruling. She said one reason was that they did not want him to graduate, take the bar exam, and fail, thereby bringing down the average of the school.1 She also said that since respondent was unable to continue his legal education at any other law school, she would submit this information to the Committee.

Subsequently, respondent was informed that he would be permitted to stay for the fourth year; that he could take no more than eight units per semester; but regardless of his grade point average, even if he got straight A's, he would not be given a degree from the law school. This was the first time in the history of the Law School that a “no degree” condition had ever been imposed on a law student.

Respondent told Dean McKelvey that the conditions were totally unacceptable, that he intended to comply with the Academic Standards Committee mandate to not take more than eight units, but that if and when he made up his deficiencies, had at least 84 units and a 2.0 average, he would demand his degree.

In the fall of 1974, respondent enrolled for his fourth year of law school. On his registration form he indicated that he was a degree student. He paid his tuition for that year at the same rate as degree candidates.

Respondent enrolled in and completed eight units in the fall semester of his fourth year. He also enrolled for eight units in the spring semester, but later withdrew from a two-unit course in Admiralty and “elected to receive no credit” in a two-unit Bankruptcy course by failing to complete it.

The school then discovered that in order to take the bar examination, respondent would need 18 units, rather than 16 units, in his fourth year. The school extended respondent the opportunity to meet this requirement by taking additional units during the summer session which would be credited to his fourth year. Respondent enrolled in a four-unit Taxation course in the summer session, but withdrew from that course after two classes.

Thus, respondent completed a total of only 12 units in his fourth year; eight units in the fall and four units in the spring. Had respondent completed the Bankruptcy and Taxation courses he would have been certified to take the bar examination that summer. Having failed to do so, he could not be certified. However, at the end of that time, he had 88 units and a cumulative grade point average of exactly 2.0.

On September 11, 1975, respondent filed with the school a petition to grant him a law degree which was denied.

At trial, respondent produced in evidence four transcripts of students whose grade point averages were lower than 2.0 after three years of full time attendance and who petitioned to continue in school. All were permitted to continue, and in no case was the condition imposed that they would not be permitted to obtain a degree. Of the four students, the two that raised their grade point averages to 2.0 or better, and who achieved at least 84 units, were granted the degree of Doctor of Jurisprudence. In addition, four other students were told on or about July 29, 1975, that they could continue in school but they must have a 2.0 in order to receive a degree. All of these students were advanced students. (Exh. 28)

Given this evidence, the trial court found that a contract was entered into by and between the parties in consideration of tuition payments made by respondent and accepted by appellants; that appellants agreed to award respondent a degree upon the completion of the requirements set forth in appellants' Law School Bulletin; that respondent completed all the contractual requirements for a degree; and that there was no factual reason or basis for a denial of a degree to respondent by appellants.

Appellants' principal contention on appeal is that courts cannot overturn the decisions of school authorities regarding the academic standing of students.

The “rule of judicial non-intervention in scholastic affairs” has been stated in a variety of ways by different courts. “It has been said that courts do not interfere with the management of a school's internal affairs unless ‘there has been a manifest abuse of discretion or where (the school officials') action has been arbitrary or unlawful,’ State ex rel. Sherman v. Hyman, 180 Tenn. 99, 171 S.W.2d 822, cert. den. 319 U.S. 748, 63 S.Ct. 1158, 87 L.Ed. 1703 (1942), or unless the school authorities have acted ‘arbitrarily or capriciously’, Frank v. Marquette University, 209 Wis. 372, 245 N.W. 125 (1932), or unless they have abused their discretion, Coffelt v. Nicholson, 224 Ark. 176, 272 S.W.2d 309 (1954), or acted in ‘bad faith’, Barnard v. Inhabitants of Shelburne, (216 Mass. 19, 102 N.E. 1095) supra, and see 222 Mass. 76, 109 N.E. 818 (same case).” (Connelly v. University of Vermont and State Agr. Col. (Vt.1965) 244 F.Supp. 156, 159-160) Thus, recent California decisional law has held that there may be judicial intervention when arbitrary and capricious conduct on the part of the university officials has been alleged. (Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 220, 136 Cal.Rptr. 527; Wong v. Regents of University of California (1971) 15 Cal.App.3d 823, 829, 93 Cal.Rptr. 502)

Consequently, where a student has been dismissed for a failure to attain a proper standard of scholarship, two questions may be involved: the first is, was the student in fact delinquent in his studies or unfit for the practice of the profession for which he is studying? The second is, were school authorities motivated by malice or bad faith, or did they act arbitrarily or capriciously? The first question is not a matter for judicial review. However, acts which are motivated by bad faith, arbitrariness or capriciousness may be actionable. (Connelly v. University of Vermont and State Agr. Col., supra, at p. 159.)

In the case at bench, respondent claims that appellants' decision to deny respondent a degree was motivated by the university's concern with his inability to pass the state bar examination. We do not need to determine the truth of this controverted assertion.

In Connelly, a student alleged that a teacher had decided early in the course that he would not give a passing grade regardless of the student's work in the course. The court held that “The allegation that the plaintiff was failed by an instructor who had made up his mind to fail him before he completed the course is equivalent, . . . to an allegation of bad faith, arbitrariness, and capriciousness on the part of the said instructor . . . .” (Id. at 161)

In the present action, the Dean advised respondent that regardless of his grade point average, even if he got straight A's, he would not be given a degree from the law school.

Appellants contend that the “no degree” condition was reasonable, since the Academic Standards Committee had the authority at the end of respondent's third year to preclude him from any further study at the university. Therefore, it had the implicit authority to condition his further study by requiring him to give up his right to a degree and grant him a certificate of attendance instead.

While we agree that it was within the university's absolute discretion to deny respondent's petition for readmission and to preclude him from any further study at the university, we find that the school's actions were arbitrary and capricious with respect to the manner in which respondent was treated during his fourth year of study.

Contrary to appellants' assertion, evidence that a student was treated radically different from others in a like situation tends to prove he was dismissed arbitrarily and capriciously. (Greenhill v. Bailey (N.D.Iowa, 1974) 378 F.Supp. 632, 636, reversed on other grounds (8th Cir. 1975) 519 F.2d 5). Here, appellants permitted four other students with similar academic records to respondent's to remain in the law school for a fourth academic year to make up their deficiencies without imposing a “no degree” condition on any of them. Moreover, the two students who raised their academic records up to a 2.0 grade point average with at least 84 units were awarded degrees of Doctor of Jurisprudence. In addition, the Academic Standards Committee told four other advanced students that they could continue into the next year, even though their cumulative grade point average was below 2.0, but they would need a 2.0 in order to graduate. Finally, the Dean of the law school testified that as far as she was aware, this was the only case in the history of the school where a “no degree” condition was placed on a student.2

The university has only two types of students: Degree Candidates and Non-Degree Candidates. Its catalogues provide that the only non-degree candidates that can be admitted to the law school are either attorneys or graduates of accredited law schools. Therefore, at the end of respondent's third year in law school, it appears that respondent would either have to be disqualified or permitted to advance as a degree student. If a uniform rule existed that all students who did not have 84 units and a 2.0 cumulative grade point average at the end of three years would be denied degrees, appellants could justifiably deny respondent a degree. However, appellants apparently maintained an unwritten policy that these students could continue into the fourth year, attempt to build up their grade point average and/or unit deficiencies, and then graduate. To allow respondent to continue his studies, have him pay tuition at the same rate as a degree candidate, and then deny him a degree after he achieved the requisite 2.0 cumulative grade point average with more than 84 units appears arbitrary and capricious.

Appellants next argue that the judgment must be reversed, since the trial court failed to make a finding of fact on a material issue; i. e., the reason for respondent's disqualification and the refusal to award him a degree.* The argument is without merit.

It is well settled law that where proper findings have been made upon specific issues of a case it is unnecessary to negate issues contradictory thereto. Therefore, a finding on a particular issue is an implied negation of all contradictory propositions. (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 566, 78 Cal.Rptr. 25) The court below found that there was no factual reason or basis for the denial of a degree of Doctor of Jurisprudence to respondent by appellants. Implicit in this finding of fact is the rejection of appellants' reasons for denial of the degree. Indeed, the very definition of “arbitrary” is that some act is done without reason.

In conclusion, we do not here question the wise judicial policy of non-intervention in academic affairs. However, we agree with the lower court's conclusion that the imposition of the condition that respondent would not be granted a degree even if he got straight “A's” in his fourth year, and even if he satisfied the degree requirements, was arbitrary, a manifest abuse of discretion, and an unreasonable discrimination between students. Accordingly, the refusal of appellants to award respondent a degree of Doctor of Jurisprudence was an arbitrary and capricious act.

The judgment is affirmed.

I concur in the opinion. However, I would like to add a comment on the obligations of law schools as I perceive them. Accredited law schools in particular should fix definite standards of admissions and abide by them. They should not accept fees from, nor permit the registration of, students who they feel are not equipped to receive a law degree. They should be willing to assume the responsibility for and grant degrees to students whom they qualify for the State Bar examination. Such a policy would preclude any possible charge of discrimination or capricious conduct in permitting an unqualified student to continue to register. It would also prevent the taking of fees from those whose past record clearly indicates an unsuitability for the law and it would redound to the benefit of the public which the law student is educated to serve.

I dissent.

Appellants correctly state that there is but one basic question presented in this appeal, namely, whether there is any substantial evidence that appellants were arbitrary or abused their discretion in refusing to award a law degree to respondent. A careful reading of the testimony and an analysis of the exhibits introduced in evidence lead me to conclude that the answer to that question must be an emphatic “no.”

It is conceded by respondent and by the majority that in matters of academic affairs the basic rule is one of judicial nonintervention. The only exception is when it is alleged that the decision of the educational authorities has been arbitrary, capricious or rendered in bad faith (Connelly v. University of Vermont and State Agr. Col. (Vt.1965) 244 F.Supp. 156; Mahavongsanan v. Hall (5th Cir., 1976) 529 F.2d 448; Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 136 Cal.Rptr. 527). In the case at bench, the trial judge in his Notice of Intended Decision stated, “There is no evidence in this case that the directors of the University or the faculty have been capricious or acted in bad faith, but the court is of the opinion that the defendant has been arbitrary or, at least, abused its discretion.”

The only explanation in the trial court's decision appears to be that contained in Conclusion of Law, No. 7, which reads: “The imposition of the condition that plaintiff would not be granted a degree even if he got straight ‘A's' in his fourth year, and even if he satisfied the degree requirements in his fourth year, was arbitrary, a manifest abuse of discretion, and an unreasonable discrimination between students.”

It thus appears that we are not dealing with the question of capriciousness or bad faith, but solely one in which the trial court has concluded that the conduct of appellants, in refusing to bestow a Doctor of Jurisprudence degree upon respondent, acted arbitrarily.

Arbitrary is defined as that which is fixed or arrived at through an exercise of will, or by caprice, Without consideration or adjustment with reference to principles, circumstances, or significance, or given to making decisions (Webster's New Internat. Dict. (2d ed. 1935), at p. 138). Synonyms for the term, according to Webster, are “absolute,” “autocratic,” “highhanded.” By no stretch of a reasonable person's imagination can it be said that appellants' conduct met such a definition.

The record shows without dispute that the respondent was in academic difficulty from the moment of his first examinations in law school. He was permitted to continue as a probationary student. At the end of his third year, respondent was again academically disqualified, and his petition for readmission was initially denied. He asked for reconsideration after several conferences with school officials. This resulted in a reconsideration by the Committee on Academic Standards, which permitted him to attend the school during the fourth year, but upon specific conditions, one of which was that he could not be a candidate for a degree.

The record once again is absolutely clear, and respondent admits, that at the conclusion of his third year he was advised by Dean McKelvey that he had “ ‘flunked out.’ ” Respondent was then concerned with being able to take the California State Bar examination under rules of the State Bar permitting Nondegree applicants to qualify upon completion of a required number of law school units. He admits that he was advised by appellants to try to enroll at non-accredited schools for this purpose, and he did so without success. He reported his frustration to appellants who relented on their decision not to readmit him under any conditions. This came about as a result of various conferences between respondent and school officials. In his trial testimony, respondent admitted that Dean McKelvey had advised him that the Only reason for his readmission was that appellants felt sorry for him, and that if he completed a certain number of additional studies during the fourth year, respondents would certify him for examination by the bar.

Plaintiff's Exhibit 11, a letter dated September 13, 1974, from Associate Dean Minkus to respondent summarizes these negotiations and is worth repeating: “This will serve as your written confirmation of your telephone conversation with Dean McKelvey in which she informed you that the Committee on Academic Standards had concluded that you may continue your law studies at Golden Gate University Law School.

“As you are aware, you are to take no more than 8 units per semester and you are to stay for two semesters because You will not be given a Golden Gate Law School degree no matter what your grade-point average is at the end of this time. However, you will be certified by us as having studied the law for 4 years. On that basis you will be permitted to take the California Bar.

“If you have any questions, please come in.” (Emphasis added.)

Respondent testified that he did not agree with the condition expressed in Exhibit 11, and that in the presence of Dean McKelvey he voiced his disagreement and wrote across the face of Exhibit 11 that he objected to the terms and conditions. Dean McKelvey denied that respondent had made any such statement to her, and in fact testified that her first recollection of Mr. Paulsen insisting on a degree occurred in the middle of the spring or second semester of the fourth year.

While it is true that a conflict in the evidence exists as to this point, it is apparent to me, at least, that the resolution of that conflict in favor of the respondent still leaves the record in an insubstantial state to support a charge of arbitrary abuse of discretion. It is important to note that respondent himself introduced Exhibit 11, on which he purportedly wrote a disclaimer, and his testimony is unequivocal that he retained that document. The document introduced in evidence, however, contains no such interlineation or writing. While this court cannot pass on the credibility of the witnesses, we are charged with the responsibility of examining the entire record when a contention is made that there is no substantial evidence to support the decision of the trial court.

The trial court also seems to have placed some significance on the fact that three or four other marginal students were admitted into the fourth year as degree qualifying students. However, the record contains ample testimony by the school officials supporting their evaluation of those students and the reasons for granting of degrees in those cases. This kind of decision is anything but arbitrary. Rather, it clearly falls within the general rule mentioned earlier, calling for judicial nonintervention.

The case thus boils down to a situation where the university if the trial court judgment is upheld will be penalized for making a good faith, well-intentioned, carefully considered decision to assist a student to qualify to take the bar examination without obtaining a Doctor of Jurisprudence degree.

Once the principle of judicial nonintervention is ignored, as the majority opinion does, it becomes a simple matter to second guess the school authorities. Thus, the effect of the majority decision is to say that appellants should follow an inflexible and unsympathetic policy, absolutely refusing to permit respondent to continue at the university after his third year. If, in fact, that had been done, respondent admittedly would be without remedy. It can be argued that the university should have followed that course in the discharge of its obligation to the public, because from hindsight it now appears that the respondent is woefully unqualified to practice law.1 However, the reason for the rule of judicial nonintervention is a recognition of the broad discretion which should properly rest with the academic institutions. I cannot see any arbitrary conduct on the part of the university whatsoever. Sympathetic, compassionate, and understanding, yes; arbitrary, no.

Finally, it must be pointed out that the majority's rationale that since respondent paid tuition the university should be required to give him his degree, is wholly without substance. There is no evidence whatever nor any finding of the trial court that respondent paid tuition for a degree. On the contrary, the record shows that tuition is charged for degree and nondegree students at the same level.

I would reverse the judgment.


1.  In appellants' objections to the trial court's proposed findings of fact and conclusions of law they objected to the court's finding of this fact. Judith McKelvey declared that to the best of her knowledge law schools have no rating with the Committee of Bar Examiners other than the statistics which are compiled and published in the State Bar Journal. These statistics which show the pass-fail results include all students who have received their legal education at the various law schools Regardless of whether they graduated. However, during extensive testimony, McKelvey never denied having made this statement to respondent.

2.  Appellants later introduced into evidence a transcript for a student who, after three and one-half years of study had a cumulative grade point average of 1.92 with 86 units. He was notified that he would receive no degree but that he might come back and take enough units to be certified for the bar examination. However, appellants did not tell this student he would not get a degree until five months after they told this to respondent. This student has never qualified for a degree.

FOOTNOTE.  The Notice of Intended Decision and the proposed findings of fact both gave as the reason why appellants had denied respondent a degree the fear that he would fail the bar examination and as a graduate of the school would reflect poorly on its “rating” with the Committee of Bar Examiners. The trial court apparently deleted this finding after appellants' counsel argued there was a lack of admissible evidence for such a finding.

1.  But the law schools do not dictate the qualifications for admission to the bar. Consequently, they should not be penalized for carrying on their business within the framework established by the State Bar, which, in turn, functions under the umbrella of the Supreme Court.

MILLER, Associate Justice.