Category Archives: due process

Houston Court of Appeals Revives Law Student’s Claim Arising from Compromised Exam, Alleged Cover-Up

Najvar Law Firm press release from Jan. 2, 2019:

HOUSTON, TEX.—This week, a panel of Texas’s First Court of Appeals held unanimously that a lawsuit against Texas Southern University can proceed to trial.  The suit alleges due process violations arising from the compromise of a “uniform” first-year exam at Thurgood Marshall School of Law (TMSL), and subsequent cover-up by the law school administration.  The decision reverses the judgment of the Harris County district court.

The Plaintiff, Ivan Villarreal, was a first-year student at TMSL in 2014.  TMSL divides first-year law students into four sections, and has adopted a “First Year Uniform Exam Policy,” which TMSL’s student manual explains is supposed to “insure fairness to students because it prevents significant grading pattern differences by first year professors.  Hence, students…have the same opportunity to excel, do average work, or fail no matter which section…the law school assigns them.”  A student must finish with a GPA of 2.0 or higher after the first year to continue his law school education.

Villarreal finished with a 1.98 GPA and was dismissed in June 2015.  However, Villarreal’s lawsuit alleges that an unknown number—at least thirteen—questions from the supposedly-uniform December 2014 Criminal Law exam were compromised by a professor from another section, whose unauthorized, off-campus review sessions became widely known when students returned for the second semester in 2015.  Villarreal alleges that the TMSL administration refused to conduct even a cursory investigation to ascertain the scope of the compromise (how many questions were compromised, and which students had access), and then presented selective portions of an expert’s analysis to mislead the students into believing that the compromise had not materially affected grades.  The lawsuit argues that the exam compromise, the subsequent failure to investigate, and then the selective release of the expert’s report to mislead students, violated his substantive and procedural rights to the “due course of law” guaranteed by article I, section 19 of the Texas Constitution.

A unanimous three-judge panel of the First Court of Appeals held that Villarreal had sufficiently alleged both procedural and substantive violations of the liberty interest in a continuing graduate education as recognized by Texas courts.

The panel held that “Villarreal adequately alleged a procedural due-course-of-law claim based on his allegation of the university’s bad-faith mismanagement of an exam-grading controversy, which allegedly caused him to miss the GPA cut-off by two one-hundredths of a grade point and thereby jeopardized his reputation and intended career path.”  The Court then turned to address whether—aside from procedural deficiencies—Villarreal had alleged a viable claim that the TMSL administration’s decisions related to the claimed investigation and remedy of the exam compromise were substantively defensible.  On that question, the panel held that, even assuming the situation could properly be considered an academic dismissal, the defendants “did not conclusively demonstrate that the decision to implement [a] ‘class-wide’ remedy was an exercise of professional judgment entitled to judicial deference in the context of a constitutional challenge.”  Accordingly, the Defendants are not entitled to sovereign immunity, and the suit can proceed to further discovery and trial.

“I am pleased with the Court’s decision,” said Villarreal’s attorney, Jerad Najvar of Najvar Law Firm, PLLC, a Houston-based firm specializing in constitutional litigation.  Najvar argued the case to the panel on October 24, 2018; the University and the individual defendants are all represented by the Texas Attorney General’s Office.  Najvar continued:  “This decision rightly means that a state-funded institution cannot actively ignore a cheating scandal that affects students’ grades and career prospects and expect to be immune from any review of administrators’ arbitrary or even bad-faith decisions.”

Villarreal seeks to have the administration finally acknowledge and competently address the impact of the exam compromise on his score-which was curved against all other students, including the unknown number who had prior access to at least 13 questions—so that he may continue his education.

If no petition for rehearing, or petition for review by the Texas Supreme Court, is filed, the case will be remanded soon to the Harris County district court for further proceedings.

The case is Villarreal v. Texas Southern University, et al., No. 01-17-00867-CV, in the First Court of Appeals.  The opinion of the court is here, and Justice Massengale’s concurring opinion is here.

Jerad Najvar specializes in litigation and appeals in election and constitutional matters, and is founder of the Najvar Law Firm, PLLC in Houston. He has successfully litigated several constitutional cases, primarily First Amendment free speech and association claims.

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