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February 2013 - Flunking Contracts Twice

by Richard W. Millar, Jr.

Law school is tough. There is no denying that. Even at this remove, I have a relatively good memory of the three years I was encapsulated in law school. I look back with neither a particular fondness—I am not sure how anybody could be truly fond of law school—nor enmity, for it was an opportunity for which I was then, and still am, abidingly grateful.
I did well in law school. I mention that not to brag, but because it was such a sharp contrast to what I did in every other school until then. 
In fact, I do not recall getting any unexpectedly low grades in any of my scholastic endeavors. (The cynics among you may fasten on my use of the word “unexpectedly” with some acuity, but I digress.) In any event, it never even remotely occurred to me to lay the blame at the school’s doorstep and sue, particularly in federal court.
That is, of course, until now. As always, a case in point.
One Jonathan Chan, and one Karla Ford, attended, for a relatively short time, the Texas Southern University Thurgood Marshall School of Law. Like most schools, this law school had a policy of dismissing those who failed to maintain a cumulative grade point average of 2.0. The rule was predicated on the hard-to-argue-with concept that only students with the ability to graduate and sit for the bar should be allowed to continue in school, which had the dual effect of protecting “poorly performing students from accumulating debt to ‘finance studies that will likely end in failure.’”
Well, as you can guess, Mr. Chan and Ms. Ford had at least one thing in common: a failure to maintain a 2.0 grade average. The second semester of contracts was the most troublesome for both, who each challenged the grade they got on the Contracts II final exam. That examination had eight questions. The questions were multiple choice but, and here’s the interesting catch, the students had to write short answers explaining their decisions to select or reject each multiple option. (I never had such an exam. If I had, it would have played havoc with my usual method of answering multiple choice questions where I had not the foggiest idea: pick “c” and hope for the best. But, again, I digress.)  As with most tests, the highest possible grade was 100 points. Mr. Chan and Ms. Ford only answered one of the eight questions correctly and no, I don’t know if it was the same one. Mr. Chan scored a blazing 13 and Ms. Ford a blistering 2. They both received grades of D-. (I have to say that I don’t know how on God’s green earth a grade of 2 out of 100 rates a D- instead of an F, but I promise this will be my last digression.) 
This law school, perhaps like many others these days, had something that was unheard of in my day. It had a procedure to request grade changes from something called the Academic Standards Committee. By contrast, I can remember that my college accounting class was giving me fits of frustration, so I went to my professor and he said to “go back and master it and you’ll be fine.”  They didn’t call it that in those days but that was as close to anything that might be deemed an appeal as you could get.
In any event, Mr. Chan and Ms. Ford appealed both their dismissals and their Contract II grades. The Academic Standards Committee issued letters denying their petitions because of insufficient evidence. Merely being shown the door is, apparently, too abrupt these days.
Well, as you know from the beginning, Mr. Chan and Ms. Ford did what all red-blooded, American law students who failed contracts would do: they sued the school along with their contracts teacher in the United States District Court in Texas.
For breach of contract.
To be fair, like other plaintiffs, they threw in other causes of action, but I couldn’t resist the delicious irony that someone who flunked contracts would sue for breach of contract. And, how many of you out there would like to have your law school grades reviewed by a federal judge?  Please raise your hands. I thought so. Me neither.
Suffice it to say that the District Court observed that “federal courts strongly disfavor claims that require judges to second-guess judgments about the academic quality of a student’s work.” That was the high point of the opinion. The court granted the defendants’ motion to dismiss and for summary judgment dismissing the federal claims with prejudice and state law claims were dismissed without prejudice.
By hying to Federal Court, the former law students, perhaps unknowingly, ratified the wisdom of their grades.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at

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