In two cases to strip two former Texas university students of their doctorate degrees, allegedly for academic misconduct in both, Texas Supreme Court justices Tuesday skirted the state’s argument that one should not be decided because it was not ripe because the University of Texas at Austin had not yet revoked the Ph.D. it threatened to revoke. In the other Texas State University-San Marcos revoked the Ph.D. by its internal administrative procedure.
But lawyers for both graduates pressed the court to consider the very power they argue is missing: The lack of express authority to revoke the degrees in the first place. Both graduates contend the universities’ administrative decisions lack fundamental protections of the property and liberty interests each former student has in their granted degrees.
“That issue is jurisdictional,” Deputy Solicitor General Bill Davis told the court, “and a decision favoring the universities would dispose of the cases.”
In one case the University of Texas at first revoked a student’s Ph.D. in chemistry six years after her graduation, then rescinded the revocation after she sued on a claim she had been denied due process. In the other Texas State revoked a biology Ph.D. That student later sued, too, on similar grounds.
Davis contended the power to revoke is established by rules promulgated by both the University of Texas, in one case, and by Texas State in the other. The power to revoke is the flip side of the authority expressly given to universities to grant degrees: the power for universities to erect a building but not to demolish it, the express authority to admit students but not expel them, to deposit money in a bank but not withdraw it, to appoint a chancellor or president, but not dismiss them for misconduct.
“We have the same situation here,” Davis said. “The awarding and revoking are two sides of the same coin.”
But Justice Jimmy Blacklock interjected. “I go back to my question what is a degree. Is my degree what I display on my wall, do I hold it at sufferance to the University of Texas or is it mine? We don’t have clear analogy to these other examples.”
Davis replied: If the university decided you cheated on your exams, then it could say that degree was never earned in the first place.
“Then we still get back to the due process,” Justice Debra Lehrmann questioned. “Surely there has to be some due process.”
The university has its own process, Davis argued. “And if the student goes through that process, at the end of it the degree is revoked, then if the student goes through that process and says what they call due process isn’t due process, that student can go to court and get that court to say that process was not sufficient,” he said.
Former Texas appellate justice Scott Field, representing the Texas State student, whose Ph.D. in biology was revoked because the university alleged she fabricated lab results, started his response to the state’s argument by claiming two fallacies in it. Degrees for both, as graduates, cannot be taken away without judicial due process and this is not a case that can be “cabined as academic dishonesty.”
Texas State’s rules have multiple grounds for misconduct. But the degree was revoked after an internal investigation during which the university consulted outside experts. When the committee decided on degree revocation, that decision went the university president for approval. The standard for review, Field said, was that no “manifest injustice” resulted.
“I don’t know what that means,” Field told the court. Then the revocation decision went to the Texas State regents but, he said, “You never see a court of law. The key is whether a university can revoke a degree in and by itself in its own disciplinary proceedings.”
What gives the university the authority to sue revoke a degree? Justice Jeff Boyd asked.
“Universities file suits all the time,” Field replied. They still have common-law rights, he said.
Justice Brett Busby asked whether the Education Code’s provision for university regents’ powers – to exercise the “traditional and time-honored role for such boards as their role has evolved in the United States” – includes degree-revocation.
Only five decisions on degree revocations have been reported by U.S. courts, Field answered. “It’s not time-honored. It’s now,” he said.
Houston attorney Anita Kawaja, arguing for the University of Texas chemistry graduate, emphasized to the court that her client’s relationship with the University of Texas is contractual, based on student rules in effect when she enrolled in 2003. And Kawaja added: “I think [her] liberty interest is lost in this discussion.
“The moment a student graduates is the moment when their rights have vested,” Kawaja argued. “Their ability to sanction a student changes. They don’t have jurisdiction over a student in perpetuity.”
Busby: What about university rules that allow degree revocation?
“The creation of that rule is in itself an ultra vires act because the university cannot create a rule that is in conflict with its express powers,” she said.
The only statute that mentions degrees is that the University of Texas can award degrees. “If they want to imply a power to revoke a degree it must be reasonably related to an express power,” Kawaja said. “It has to be necessary to effect the express power.”
Busby pressed further: The state argues, he said, that does not apply to universities.
“It does, your honor,” she argued. “We’re talking about the basic rules of statutory construction. It applies across the board when we imply anything.”
But Lehrmann interjected: If the court follows her argument, doesn’t that make Texas an outlier on the degree-revocation issue?
“I don’t think so, your honor,” Kawaja said. “There aren’t any other cases like this one.”
You can’t get a job as a scientist any more without a Ph.D., she said, and “doing what my client does.”
Unlike attorneys, who get licensed, a scientist’s Ph.D. is their license, Kawaja said.
“Bottom line: They’re not authorized to do what they’re trying to do.”