Student Denied Permission to Progress in Program

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Quoting Disagreeable

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When you attended school, they said sign these forms. These forms tell you our rules. You agree to follow our rules. Give us X dollars and we will start teaching you(OFFER). You said sounds cool to me. I will sign the admission form and other misc forms to start there(ACCEPTANCE). (MEETING OF MINDS) Here is my tuition money for classes as we agreed to(CONSIDERATION). So, we have a meeting of the minds, offer, acceptance and consideration, in writing. That is a contract.

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I agree that it does meet the criteria for a contract. However, an education lawyer I previously spoke explained that because the ruling was issued by a school entity, it is considered an agreement not a contract. It has something to do with laws pertaining to the education system.

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Quoting Dogmatique

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If you truly believe that you have a suit, you're of course welcome to consult with an attorney at your earliest convenience.

But if several very knowledgeable posters all share the same opinion, you must consider why that is so.

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Believe me when I say I am considering EVERYTHING everyone says; hence why I continue replying to everyone's comments. I AM LEARNING TONS! My intent is to present all of the information I have collected and all of my arguments. I am looking for multiple points of view.

And the point of view of everyone here, as far as I can tell, is that you are wasting your time.

Yet you still persist.

I think once you consult with the lawyer you will have a better idea of where you stand. That said - lawyers do make their living by charging a fee and you certainly do not want to put out unnecessary $$$$. Get the free consult opinion of a few lawyers.

As mentioned - going to trial can get expensive. The six figure sum is not off the mark + the university will probably have representation for their staff.

Again, I think it's absurd that the professor can make their own test as it creates an unfair situation (bias) for a final test. And testing on subjects, or materials not reviewed or covered is total BS. However, I've seen this kind of stuff occur in medical schools before - private institutions.

Please keep us apprised.

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Quoting BenT

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I think once you consult with the lawyer you will have a better idea of where you stand. That said - lawyers do make their living by charging a fee and you certainly do not want to put out unnecessary $$$$. Get the free consult opinion of a few lawyers.

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It would likely be difficult to get a "free consult opinion of a few lawyers" because very few lawyers take this type of case, and the facts presented are not compelling.

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Quoting BenT

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As mentioned - going to trial can get expensive. The six figure sum is not off the mark + the university will probably have representation for their staff.

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If the OP is intent on litigating, fees are something to be discussed with the lawyer who agrees to take the case - but it's hard to litigate any case without getting into five figures in costs and fees, even if the case is resolved during the early months of litigation.

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Quoting BenT

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Again, I think it's absurd that the professor can make their own test as it creates an unfair situation (bias) for a final test.

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It's the norm for professors to write the tests that they administer to their classes.

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Quoting BenT

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And testing on subjects, or materials not reviewed or covered is total BS.

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That would be a possible avenue for recourse, as the class syllabus is a contract enforceable within the institution, but as that approach failed my inference is that this material was (a) described on the syllabus and/or (b) in the assigned reading as described on or consistent with the syllabus.

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Quoting BenT

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However, I've seen this kind of stuff occur in medical schools before - private institutions.

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Crazy, wacky stuff, unfair grades, unfair tests and the like occur at all schools, public and private, and at all levels of education.

The Colorado case of Davis v. Regis College, Inc., 830 P. 2d 1098 (1991) reflects the uphill battle this type of claim faces in court (and the distinction between public and private institutions, in that you can't bring a Sec. 1983 case against a private actor.)

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Quoting Here for advice

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1. The ruling the Dean of the School of Pharmacy issued meet the six criteria for a contract.

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I do not think the ruling was a contract for many reasons. It does not seem to be an offer. There does not seem to be unqualified acceptance. There does not seem to be consideration. The contract might be in the terms of being a student. The "agreement" mentioned by the attorney. Failure to uphold the school rules might be a breach of that contract.

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2. When my professor wrote the retake exam, he did so knowing I wouldn't perform well on this exam. Negligence is, "A failure to use reasonable care that results in harm to another party. Under negligence law, there are two different forms of negligence. In one form, a person does something that a reasonable person would not do. In the other form a person fails to take action that a reasonable person would take to prevent harm. Both forms of negligence can result in a negligence lawsuit filed against the party responsible for the damage."

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Negligence is duty, breach, causation and damages. I would avoid trying to claim "professional" negligence because that would require you to prove they fell below the standards of the industry. You have a professor and the dean of the school and the dean of academics who believe there is not a problem. You would need an extremely good expert to overcome their opinion. Some of your damages do not seem to be "caused" by any purported breach of duty. Proximate causation would be strained to say retaking a test leads to chiropractic treatment.

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I looked into suing this professor for a breach of contract. I consulted a lawyer who informed me that this type of contract wouldn't hold up in the court of law. Additionally, the lawyer stated that because it was issued by a school entity, it would be considered an agreement rather than a contract.

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I do not understand his point.

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On the other hand, I believe professional negligence still applies. Professional negligence is a violation of the law in civil court. This professor wrote a retake exam which included information that we did not cover in the class. When writing this retake exam, the professor knew I wasn't capable of apply this information; we never covered the chapter the information came from.

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What you believe is irrelevant. What the standards of the industry are. If you seek a breach of contract case the one supplied by Mr. Knowitall is excellent. The key things you would have to prove are:

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Hence, courts in other jurisdictions have occasionally deviated from the noninterference position, but only when the evidence establishes that the academic decision of a private university was arbitrary, capricious, and made in bad faith.

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The grade was not arbitrary or capricious even though it may have been in bad faith. You have a long row to hoe.

The bottom line is join the long list of students, who, over the years, wanted to sue an instructor because they received a crappy grade.

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Quoting Mr. Knowitall

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It would likely be difficult to get a "free consult opinion of a few lawyers" because very few lawyers take this type of case, and the facts presented are not compelling.

If the OP is intent on litigating, fees are something to be discussed with the lawyer who agrees to take the case - but it's hard to litigate any case without getting into five figures in costs and fees, even if the case is resolved during the early months of litigation.

It's the norm for professors to write the tests that they administer to their classes.

That would be a possible avenue for recourse, as the class syllabus is a contract enforceable within the institution, but as that approach failed my inference is that this material was (a) described on the syllabus and/or (b) in the assigned reading as described on or consistent with the syllabus.

Crazy, wacky stuff, unfair grades, unfair tests and the like occur at all schools, public and private, and at all levels of education.

The Colorado case of Davis v. Regis College, Inc., 830 P. 2d 1098 (1991) reflects the uphill battle this type of claim faces in court (and the distinction between public and private institutions, in that you can't bring a Sec. 1983 case against a private actor.)

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I'll add one bit to your comments - aligned / standardized ed. standards. The course professor can write jack assessments and call it whatever they want and make their students jump through all the cruel hoops they desire. I've seen it many a time, and especially in the med. training field. Doesn't make it right and closed institutions can operate like Boy's Club where they jack students. Gender / sexual bias / discrimination abound.

I do think it's a long road for the OP and sometimes best to assess whether to fight, or cut your losses given the protracted and expensive nature of litigation. And perhaps there's a lawyer out there willing to offer a free one-hour consult.

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Quoting Mr. Knowitall

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The Colorado case of Davis v. Regis College, Inc., 830 P. 2d 1098 (1991) reflects the uphill battle this type of claim faces in court (and the distinction between public and private institutions, in that you can't bring a Sec. 1983 case against a private actor.)

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Thank you for posting the link to this case - it was an interesting read! I've been looking for cases against private institutions, but haven't been able to locate any.

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Quoting Mr. Knowitall

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but as that approach failed my inference is that this material was (a) described on the syllabus and/or (b) in the assigned reading as described on or consistent with the syllabus.

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The AD was supposed to determine whether I had access to, "appropriate reference materials in order to prepare for the examination". I would like to know what her definition of "appropriate" is. Revisiting the letter she wrote issuing her ruling, I am reminded of just how vague she was in her ruling.

She then states, "Your faculty responded to my requests regarding your access to reference materials with specific identification of the references available to you".

...I would like to know what reference material the professor identified as being available to me. I would agree I had access to reference material; the information was in the course textbook... never mind the fact we didn't cover the chapter he took the material from. I would like to know if the AD compared the reference material I provided her from the chapter we skipped with the question on the exam. Based upon her statement in her ruling, I'm assuming she relied upon the words of the professor who already has a history of being dishonest. I have written documentation of two instances in which he out-and-out lied.

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Quoting Mr. Knowitall

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That would be a possible avenue for recourse, as the class syllabus is a contract enforceable within the institution, but as that approach failed my inference is that this material was (a) described on the syllabus and/or (b) in the assigned reading as described on or consistent with the syllabus.

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I also consult three classmate (all separately) regarding the incomparable section of the retake final exam. None of these classmates were coerced. When consulting each classmate, I wrote down what I remembered from the exam and emailed them a series of survey-like questions. The first classmate, who received a 100% on her final exam, reviewed the material and stated that she would not have been able to complete the questions asked in this particular section of the retake exam. She provided me with a statement which included a list of the concepts tested on the retake that were not covered in the course or on the original final exam. The second and third classmates I consulted provided me with similar statements including a list of concepts I was tested over that we did not cover and that were not asked on the original final exam. The same concepts were listed by all 3 individuals.

Unlike the Davis vs Regis College trial, my school did back me initially by allowing me the opportunity to retake a comparable version of the final exam. If the school didn't believe I deserved this, they could have simply just denied my appeal all together. Students in my program are denied appeals more often than not.

Lastly, even if the information were some somehow vaguely included in the course syllabus, the material on the retake exam wasn't comparable. Does the incomparability not count for anything?

After I received the AD final ruling, I consulted two professors in this department who teach similar undergraduate courses. I knew I couldn't change the decision, but thought it would be interesting to hear what they had to say. The first professor stated that the material on the retake included components that were not asked on the final in May. These components provided an added level of complexity. The second professor didn’t feel she was in a position to determine if the material was comparable but said that questions on the retake final required a lot more calculations than did the material asked on the final in May. She further stated that because time was already an issue on the final in May, the additional calculations on the retake final would definitely take more time to complete.