on May 24, 1976, in Room 113 of the Collins Building, Tallahassee, Florida.
For Petitioner: Mr. Stanley C. Kiser
For Respondent Mr. Robert D. Bickel
Attorney for Mr. John D. Carlson
Florida Board Suite 400, Barnett Bank Building of Education: Tallahassee, Florida 32304
The sole issue for determination in this cause is whether the failing grade received by petitioner from Professor Kenneth Vinson in a constitutional law course was a result of arbitrariness, capriciousness or bad faith.
Upon consideration of the relevant oral and documentary evidence adduced at the hearing, the following facts are found:
while enrolled as a student in the Florida State University College of Law, petitioner received a failing grade in constitutional law for the winter quarter of 1975 from his professor, Kenneth Vinson.
After discussing his grade with Mr. Vinson, petitioner filed an appeal pursuant to the grade appeal policy of the College of Law. A board comprised of three students determined that there was probable cause for the grade appeal and recommended that the appeal be referred to a full committee for hearing.
After some delay apparently resulting from the loss of the report of the student board, a committee consisting of two students and three faculty members was appointed. Mr. Vinson did not attend the hearing, but submitted to the committee a memorandum, attaching thereto a completed examination paper with his written comments concerning the answers given. Petitioner appeared and offered testimony concerning his grade. The committee was also supplied with five or six other completed examinations with grades ranging from "A" to "F". These exams were copied in such a manner that neither the student involved nor the grade assigned were known to the committee. The five members of the committee rated these exams and substantially agreed with the grades assigned by Vinson to each paper. Each member of the committee placed petitioner's exam in the "F" category. In its final report, the committee expressed concern with Vinson's lack of sufficient assistance to them in the articulation of his standards and his lack of cooperation in the grade appeal process.
Nevertheless, it was the conclusion of the committee that petitioner's appeal should be denied for the reason that Vinson had recognizable standards of grading and that there was no gross deviation in the application of his standards to petitioner's examination paper. The committee's findings are more fully set forth in a ten page decision which was admitted into evidence at the hearing as Exhibit 3.
The examination in dispute is a 38-question, short answer exam, a type traditionally and frequently administered in law school courses. In this type of examination, the objectives of the professor are inherent in the examination questions asked. The weight to be assigned each question on such an examination is not always determined by the professor before grading the papers. A cut sheet or master list of desired answers is difficult to prepare for an essay- type examination in law school. As well as evaluating the student's ability to identify the issues involved in a legal problem, the law school professor also seeks to evaluate the student's knowledge of the substantive law relating to an issue. Thus, if a student deviates from the projected issue, he may lose credit for that but gain credit for a good discussion of the erroneously-selected issue. Often, the law professor is seeking a judgmental or subjective response to a question on an examination. In such situations, the preparation of a master answer to all questions would be futile.
Among educators, there appears to be no uniform methodology for grading examinations. Those educators often referred to as behaviorists advocate specific written standards and objectives both for evaluation purposes and to facilitate the student's learning. Others referred to as humanists object to a specific statement of objectives and standards, feeling that such would be too limited and constrictive. The difficulty with a non-written, personal approach to evaluation is the assessment of its validity and replicability as to time and another student. One method of testing the reliability of the grading procedure utilized is to have other persons assign a grade to the completed examination. If two or more persons were to assign the same grade as that originally assigned, this would provide replicability and would indicate that the original grade assigned was reasonable and the method of evaluation was reliable. As noted above, the specific statement of standards and objectives is not universally employed by educators, and its nonuse does not imply unethical behavior or that one's teaching methods are invalid.
Professor Vinson has been teaching law school courses for over seven years. It was his testimony that, although the mandatory blind or anonymous grading system was not in effect at the time he graded Petitioner's examination, he in fact did not know whose paper he was grading at the time he assigned a
grade to Petitioner's paper. All exam papers were graded by him anonymously. Vinson's method of grading was to review five or six exam papers, get a "feeling" for the type of responses received, assign tentative grades to them and then perhaps change those grades based on his conception of the total class curve. He does not find that a cut sheet or set of model answers is helpful in a short essay type examination. When evaluating a paper for grading purposes, Mr. Vinson stated that he compares students' answers with each other and forms an opinion of the student's understanding of the subject matter and class discussions. When grading papers, he also looks at the students' writing style, knowledge concerning the substance of the course, and understanding of legal processes. He further evaluates the student's ability to recognize issues, manipulate legal jargon and apply cases studied and discussed during the course. Vinson applied the same criteria or standard of evaluation to petitioner's examination as he applied to other examinations. The ultimate grade assigned each paper constituted Vinson's value judgment, based upon his experience as a law school professor, as to that student's knowledge concerning the substance of the course taught by him. While Vinson has no written standards or criteria for evaluating a student's performance on an examination, he feels that his standards are implicit in classroom discussions and that the questions asked on his examinations form the answers to be given. The failing grade assigned to petitioner's examination was a result of Vinson's opinion of petitioner's understanding of the subject matter of the course taught.
CONCLUSIONS OF LAW
A student challenging an academic grade assigned him has an extremely heavy burden of proof. Due to their unique qualification by training and experience, school authorities are permitted a wide discretion in determining whether a student has met a proper standard of scholarship. In order to overturn such a determination, it is incumbent upon the student to clearly illustrate that the grade awarded was motivated by bad faith or ill will, or that the grade awarded was arbitrary, capricious or unreasonable. Such a showing must be accomplished by positive evidence, and not merely by surmise, conjecture or speculation.
In this case it is petitioner's prime contention that Professor Vinson lacked any discernible objectives or standards, and therefore, as a matter of law, the discretion exercised by him was arbitrary, capricious and in bad faith.
Upon a careful review of the evidence adduced in this cause, it is the conclusion of the undersigned that petitioner has totally failed to adduce evidence that his failing grade in constitutional law was caused by improper motives or was the result of an arbitrary or capricious exercise of discretion.
While some educators painstakingly reduce their standards and criteria to written form (and even assuming that such would be the best method of evaluating students), this method is not universally practiced by academicians nor does its absence necessitate a finding of lack of standards or criteria. As admitted by petitioner's witnesses in the area of instructional design and evaluation, the effectiveness and validity of a teacher's testing and evaluation process can be measured by a variety of methods. One such method was employed in this case when the five members of the grade appeal committee reviewed various examinations and assigned them the same grade as that assigned by Mr. Vinson. This negates any charge regarding the arbitrariness or capriciousness of the grade assigned to petitioner.
Nor is there any evidence of bad faith or ill will on the part of Mr. Vinson in assigning the grade in question. Vinson did not know whose paper he was grading at the time he placed an "F" on petitioner's paper. The standard or criteria applied when evaluating petitioner's paper was the same as that applied to every other paper. The grade assigned each paper constituted a value judgment concerning each student's knowledge of the substance of the course taught, as well as their ability in writing skills, in identifying issues and in the use of legal jargon. It therefore cannot be said that Mr. Vinson employed no standards or criteria in evaluating the performance of his students.
The absence of a clear demonstration of bad faith, arbitrariness or capriciousness coupled with Mr. Vinson's discretion in determining the scholastic grades awarded to his students, necessitates a decision in respondent's favor.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's amended petition be dismissed.
Respectfully submitted and entered this 17th day of June, 1976, in Tallahassee, Florida.
