good morning your honor some may please the court my name is matthew player now a present for him shot broome was nearing the end of his medical education which he excelled at receiving honors and accolades that he has spent his almost entire life preparing for and spending thousands upon thousands of dollars pursuing was abruptly ended by the university but to be clear the university did not dismiss mr shaw because he flunked out because he couldn't do the loved him in fact it was not until his encounter with dr vicki oh so during a two week portion of his internal medicine rotation up to that point his academic standing was excellent in fact many of his a valuation indicated he would make an excellent physician rather the university invoked what at that time was its brand new professionalism policy to terminate this promising career in doing so the university failed to afford mr shaw any meaningful process he gave him no opportunity to defend himself and in many cases gave him no notice of the serious charges made against him he had negative evaluations and now to hear him an opportunity to explain what you mean he had no opportunity well in fact your honor he had  opportunity to explain before he was dismissed he did not give it to opportunity was not given opportunity to appear before the ethnicity well the hearing after he had been dismissed he was not given notice of all the charges against him the committee and the committee also had before it a letter sent in by dr emmett shaw to the to the committee in which dr shaw made serious allegations including academic dishonesty including that he was lazy that he copied from other students plagiarism mr brinn shaw was never given notice that this letter was sent he was never told of these allegations against him even at the time that he appeared at this hearing after he'd already been dismissed after he had asked for reconsideration and they gave him five minutes to explain himself he still didn't know about these allegations he didn't receive a copy of this letter until two weeks after he had been dismissed after this hearing which if you can call it a hearing he did not know the charges against him and had no opportunity to respond to them and these are serious allegations well i knew about the two evaluations well he knew about the two evaluations yes he knew that he had a scheduling issue with d wagner and that he he didn't know about that one until two weeks after it happened he never had an opportunity to challenge the the basis of that before he had it was given to him now even if it is considered an academic action by the university they say the university still has to tell him what is wrong with his behavior and give him opportunity to remedy it that's inherent in  given deference to act academic decisions that is that party for having the opportunity to remedy i'm sorry what authority do you have for your allegation that he had it that he was supposed to be provided with an opportunity to remedy a problem and to be notified of the consequences if you fail to improve now when dr wagner gave him this p s had no idea that what he was doing was going to end up getting him cited professionalism dr wagner did not tell him that and in fact the facts are very clear here that what happened was this was not even virgins idea to ask for permission to take his exam after starting his thirty year rotations his plan was to delay the start of his first rotation now this is something that is routinely done in fact that allegations are that the dean of students actually encourages students to take more time if they needed to study remember the third year is not classroom these are rotations their four week rotation it's all political and so delaying the start of the first one is not that big of a deal it's not like you're not starting the semester or something and this is routinely done this is what the firm plans a leader in this is going says when you're brave you're sort of attacking each of the violations he got yes but those violations in and of themselves did not as i see it implicate any property interest he had so it's really just his dismissal from the program so should we be looking and analyzing each violation for just analyzing whether there was sufficient due process for the dismissal from the program i think it has sending write ups to the committee and they finally decide you know what this is enough is enough we're going to get rid of them and then assuming they provide enough process i don't see why you're really attacking this policy this professionalism policy but it seems to me that if anything that just provides the students more notice by having this these multiple steps in additional notice to be campy i mean there's a school can get rid of folks even without a violation of a particular policy if they comply with with the notice requirement yes but here that they didn't room had no notice of some of the allegations against him the most serious allegations again and in fact as that water because of that letter yes i think that's probably the most glaring instance in this case of the of his due process he was not even informed of the allegations against him now with respect to whether once you consider each one of these along the way it's a causation thing you have he would never have a there's no allegation and no indication anywhere that he would have ended up before the motions committee in less he received these two p s in each one of these is a requirement that leads to his dismiss so absent either one of those he doesn't get dismissed so but once it gets once they have the two when it gets to the committee when they could look at his dismissal is violation from the year before right had three of these we once it got to that point they could look at anything relevant in deciding whether to dismiss it right yes absolutely in fact they were required to look at his entire academic career we don't think they really did so but the fact is that they didn't give him proper procedure all along he didn't know that he was going to receive a p s for doing what dr told him to do so whether or not he got a p asked for it and whether or not they can reach back and look at that from that committee he didn't receive the proper notice that that would be a violation that that would be a problem for him well if we were looking at a disciplinary proceeding you'd be one thing but this is purely academic you have those other ones s and so he didn't even receive what wouldn't even as that is considered to be an academic decision to issue that p s which we very much disagree with he still it wasn't given the limited process that is due for that type of a decision to be saying he needs noticed before of of what would amount to a violation i think the notice is in before we terminate you here's the reason you got these two ups i mean that's that's the notice right you don't have to be told oh you're asking me this that's going to lead to a write up if you keep asking me but i'll bet quite right what the what the supreme court said and horowitz what this is that even for academic dismissals academic decisions you have to be given notice that the university is unsatisfied with your performance and what the consequences will be if you fail to improve and he got to during his clinical year he got s he could be terminated he has to know what the problems are that will lead to his getting these p e s now with the first get yet no idea that doing what he did asking for which is routinely done the only reason he would have different direction is because of dr mahalo now it seems extraordinarily arbitrary to say one professor tells you to do something and you do it and the other professor grant you permission to do that and then turns around and issues a professionalism evaluation form against you that ultimately leads to your dismissal from medical school that is capricious that is arbitrary and that is one of the problems with these professionalism policies not that they exist not that schools have them but that they use them to dismiss students like the room you have on back to the i mean it seems you need to get this in the disciplinary world to get the  yes that would be academic but we say that's not the case here the allegations are that he had them he was turning them in doctor videos that refused to evaluate them and at the same if they were late saying he didn't turn them in is a internal medicine he he was assigned five three of them were during the two week rotation with dr vicki oh so she was setting him up for failure she was assigning him to do one overnight the one that she said had typos and had formatting that was askew that was one he had to do overnight can do three chances and it seems to me if she's out to get him she was that's inconsistent with the we knew this issue well i disagree your honor he she didn't show him any leniency assigning more than four times the average number of write ups during this period is hardly leniency refusing to evaluate any of his write ups is not leniency  tory paranoid story about their being out to get him just didn't hang together to read you've got a man who is third year they've got all i've invested in for two years no i don't think that's what the allegations are allegations are that she was setting him up for failure for whatever reason we don't know she gave him i used the term paranoia well i don't think it's paranoia your honor she gave him his any of his write ups and the fact of the matter is this is not a motion to dismiss the court has to take mr shaw's allegations as true he has alleged bad faith he has alleged that what she please the court my name is benjamin darren of whom i am here representing u t southwestern and dean fitz i want to start with pushing back on something that was just said about having to defer to the ball the court is obliged to defer to factual allegations but many of the allegations in fact probably the majority of the allegations in the the law of pleading are actually legal conclusions bad faith is a conclusion not a factual allegation similar to a title seven race discrimination case the plaintiffs can't just simply allege they discriminated against me because of race even though that in some sense feels like a factual allegation it's really a legal conclusion and so you have to allege facts not conclusions that would support the reasonable plausible inference that there was actually bad faith and if you look at the factual allegations in the life pleading as opposed to the legal conclusions the vast majority of the factual allegations have nothing to do with the decision making body that made the decision on dismissal the student promotions committee the s d c is the entity that made the decision about whether mr shaw would be dismissed and really the only factual allegations that relate to that entity are that dr bergen  gave mr shaw a relatively low evaluation at some point i believe during his pre clinical career and that dr shaw had performed that investigation and even with d the allegation isn't that he knew that the factual things that he reported in that letter were an accurate but rather simply that they weren't accurate and in fact if you look at the exhibit a which is filed under allegations one of them is that dr vicky also actually deceived dr shah and making some representations and so when it comes to the decision making body here there are nowhere near enough factual allegations for the court to reasonably infer that that body was in any way biased or acted in bad faith when it made its decision and going to judge cost this point we've totally agree that the right here assuming that there is one you s supreme court has never actually said there is a right but we're not asking the court to rule on that but assuming that there is a right it's in attendance and pursuit of the medical degree not in any particular decision that relates to academic performance and if you take the appellant's logic at face value and saying well everything that's in the factual causation that leads to dismissal has due process associated with it that would mean that every single exam every single everything in one's academic career has a separate due process attached to it and there's simply not a single case that i could find that would that reaches that holding but in deciding whether the ultimate dismissal was  consistent due process and whether it's academic or discipline then we probably would have to look at what the nature of the violations were to determine if it fits into the academic box of the discipline box right i agree with that your honor to the extent that the p e s are reflective of whether this process was academic or disciplinary there's certainly an issue but that goes to the nature of the the right that's associated here not with what the right attaches to if you appreciate the distinction would be a difference in the all due process if it was if it was termed a label academic i suppose to disciplinary so i'm not sure if i understand the question what would have to be done differently or would anything have to be done differently if it was if we didn't make the determination are that the labeling of academic versus disciplinary dismissal well your honor i think if they even if this were disciplinary due process would still be satisfied if if your honor looks at the wheel or versus miller case which is a case from this court in one thousand nine hundred nine the additional due process for disciplinary dismissals require nothing more than an informal give and take and it's clear that mr sharp received much more than an informal give and take as we just heard he not only had a chance to address the s p c directly but he also had a letter that he filed as part of his appellate process and then additionally although it's a little bit unclear from the life pleading process or the policy itself makes it clear that he could appeal to the dean but the wife pleading is ambiguous about whether he actually exercise that right but i do want to strongly that is a disciplinary dismissal isn't the letter from dr shaw that he didn't know about doesn't that who is the notice problem under the the greater protection you get for disciplinary dismissals i don't think so your honor i think that even under the disciplinary context you're not entitled to a a a point by point a list of every single thing that we could be considered but i agree that it certainly does require more notice and that's why it's it's important for the court to recognize that this process really was genuinely academic in nature the supreme court in the hor z case held that that an academic issue or an academic dismissal is one where the decision is reflecting on the fitness of the student the fitness for the degree that they're seeking and here if you look at the even taking the allegations that mr shaw makes is true the factual allegations it's the record shows that this was in fact a academic judgement  and again this really should the focus should be on the s v c's decision but even if you look at each p f it's the record shows that it was academic so he requested starting with the july two thousand and twelve p d f mr shier requested a extension on recall the timing in which he had to take this exam which is actually required to do clinical rotations unless you get special permission and the allegation here is that he made that request  at the last minute and so in horowitz the court actually held the timeliness as well as things like personal hygiene or academic in nature because they go to the responsibility of the doctor in just being responsible and i want to strongly emphasize that this is not you know an undergraduate course or an undergraduate degree we're talking about doctors who are going to be taking care care patients some day and universities admittedly have a broader scope of what is considered fitness to become a doctor than they would for some other degrees in one of the cases for example cited by mr sh of utah opinion the court actually distinguished between the medical school context of horowitz and the nuclear engineering context for that student and if you look at the opinion it's it's basically saying look if this had been a like a medical student that would be different because there's more an issue with a medical student because ultimately they're going to be taking care of patients and so there's more an issue but because it's a nuclear engineering student where those types of responsibilities are perhaps not as important and not as related to the fitness for the degree then we're going to say this is an academic here again it cannot be emphasized enough that we're talking about a medical school degree where there's a lot that plays into fitness and when we go back to the sort of policy underlying horwitz where we have to give the university room to make a subjective determination about a student's fitness for the degree that they are seeking part of that is because it is somewhat subjective and requires review of cumulative it's not really clear to me your honor i think maybe they're arguing that because he requested to take this exam late and they didn't like that behavior that he's being punished for it but again the issue here isn't that course this is an exam to certify your ability to do clinical rotations afterwards and so unless you get special permission you can't even start the third year until you take this exam and hard right i'm sorry board that's right that's right  just govern every other day they're scheduled for groups that's right and so it's critically important that if the student wants an extension on that time that he do so in a timely manner and a failure to do so does reflect the student's fitness to become a doctor because my goodness when you're practicing medicine and taking care of patients if you don't request the medicine on time or do other things that are equally important in a timely manner that affects your ability to take care of patients with regard to this question of  how much notice he received in advance if you look at the policy itself and you look at the policy on it's the the  d f it says on record this is on page five sixty nine of the record that scheduling and completing the u s emeli by the required dates is an essential responsibility and so while there may not be at least in the record a specific date that it's required mr shaw was on notice that scheduling not just completing but scheduling the exam in a timely manner is something that he's going to be held to and so that puts him on notice in advance that this is something that he needs to focus on appellant's brief argues that he didn't get enough reminders that the university should have given him a series of reminders i think it's on page six through seven and i would just push back on that and remind the court that this is a medical institution not a high school and in order to take an exam that's required to to do your clinical rotations university is not obliged to send continual reminders about that it's up to the student to be responsible and to demonstrate that responsibility through their conduct and so the focus here into turning whether it's academic or disciplinary isn't on what was the behavior theoretically you could have some behavior that leads to both a disciplinary and academic process for different reasons the focus needs to be on why is the university why isn't the first we care about this are they taking actions to punish the student for doing something wrong or are they taking actions because it reflects on the students fitness for the degree they're seeking and i think based on that criteria which is the horwitz criteria that this record shows that all of these things were academic in nature and most self evidently if you look at the  march twenty third teen p d f itself which is in the record on page seven thirty eight it shows that patient notes and being prepared the things that are that are i don't want to say clearly but fairly self evidently academic in nature were what was that issue there and in the horwitz case the court talked about clinical rotations as part of the academic criterion in davis versus man this court held that poor quality dental charts were academic and so under this precedent sloppy patient notes are an academic judgment now a parent's brief makes much about this allegation of bad  hundred five case but even in that case the court held that the faculty were entitled to a presumption of honesty and so then that goes back to well has he alleged facts that show that the decision maker acted in bad faith and the decision maker here with regard to the dismissal as the s t c as a whole and as i think i opened with he simply is not alleged facts that affect the judgment of the s p c as a whole that if true would show that he actually or that the committee acted in bad faith to overcome that presumption and so without a factual allegation that creates that reasonable inference the university certainly doesn't lose the presumption that this is that this is academic and the the deference that they're entitled to and many of the conclusions that he makes about why the specific things were untrue are two and conclusory to be entitled to deference one of the things in his eleven page exhibit a where he's going through and says they say this about me that's false because they say this about me it's false because and it goes on for like i said about eleven pages one of the things is i don't make excuses i just ask questions now in an eleven page document which is essentially excuses that that allegation is simply not entitled to deference other things such as organization or slopp ultimately subjective they're do neither really objectively true nor false and that goes right back to the horwitz deference that the universities entitle to where we're talking about you know whether patient notes are sufficient and really the courts are reluctant to weigh in because they don't really have the expertise no offense intended your honour's but the expertise to second guess medical professionals in terms of what is a sloppy patient know what is sufficient those types of judgments are really the essence of why some deference is owed to these experts who are looking over cumulative information in making their determination with regard to what kind of notice he actually got moving over to move into the procedural due process itself we have the policy itself which gives notice we've got the p s as we discussed that give notice you have not one but actually two meetings with dr shah where they discuss the deficiencies that give notice and i  push back on something that my opposing any of those discuss the plagiarism that was discussed in dr scholl's letter which is a serious allegation that might have well have influenced the board it's i don't think the record is clear but i want to push back a little bit of this plagiarism accusation because if you look at dr shah's letter he's not actually saying you know he committed plagiarism as a in the disciplinary context what he's really saying is that he took short cuts and i said i really encourage you to actually look at the record itself the accusation isn't that he was academically dishonest and that he plagiarized someone's work is that he copied and pasted from a textbook instead of coming up with original notes and so it really wasn't plagiarism in the disciplinary sense where this was misconduct for which you need to be punished it goes more to the student's fitness of did he really do the work did he put in the time to create the original content to reflect these patient situations as opposed to taking stuff to eat already done or that he'd already that the just sort of generic descriptions of the diseases or whatever else and so the word plagiarism is certainly one that has a lot of strong connotations associated with it but again if you look at the record itself it's clear that this isn't a plagiarism accusation the word plagiarism may have been sloppy but that's really the allegation that he took short cuts and that's clear from ridge that's right your honor and i believe that the note that the letter also notes that he did a credit those sources so he may not to put them in quotes but he did a credit them and so the allegation really isn't like he was taking someone's intellectual property and claiming it as is claiming it as his own the issue here goes to well did he do enough work did he do original work when he was creating his patient notes or did he look for opportunities to take shortcuts  and so it's not it's not a plagiarism accusation in any sort of disciplinary sense and i would also note that opposing counsel argued the due process requires an opportunity to improve after receiving the notice but that's really not part of the standard when the supreme court was discussing that it was part of the policy interest admittedly some of the policy interest in academic deference but it's not part of the standard and if you think about that let's say someone just fails classes just like an undergraduate student the sociology major whatever they just fail their classes are they entitled to then have any additional like retaking the classes by the it's the us constitution require that or is it required that they simply had notice of what was expected of them usually there's a syllabus that provides that function and then afterwards if they have questions about well what did i fail they can ask but the law doesn't require them to get a rubric of every single you know of the exam that they took but that's essentially what mr shaw is asking for and i thought it was interesting that he said he noted that he admitted that  everything in the academic career is potentially an issue when you're doing this came out of review so if the law or required a point by point list of every single thing that they considered in making their dismissal decision but everything that the student has ever done during their academic career is fair play and fair game for that decision then how could you how could you ever provide that notice and we're talking about an academic decision that's the minimum of due process required under the law if you had to give them every an itemized list of every single thing that might be considered or was considered then it would completely formalize what is supposed to be an informal process even the disciplinary context only requires an informal give and take not not a list of charge and charges an opportunity to cross examine witnesses but make no mistake that's what mr shaw is asking for here when the complaint one of the things he alleges were my hearing wasn't sufficient because i didn't get an opportunity to cross examine witnesses and finally with the substantive due process issue all the law requires is that the person making the decision not substantially depart from accepted academic norms as to demonstrate that the person or committe responsible did not actually exercise a professional judgment and here it's if you look at what the committee considered its those are things that are all perfectly within academic norms to consider and mr shaw argues not that they for with respect to the the first p f we're not asking what we're asking for is that he be notified the taking action on the recommendation of a nother professor to take this course of action as opposed to the another one which no one alleges would have been a problem is going to end up getting him dismissed from medical school that wasn't done now we're also not asking for anything more than with the  letter that he be given notice that these are the allegations being made against him and contrary to counsel's characterization these are not minor allegations oh well maybe he took them yes he said he took four cuts he also said that he copied from other students from from residents these are serious allegations that that stigmatize mr shaw and if there if he is not allowed to clear his name they stick with him forever he it simply isn't the case that shaw dr amateur off can accuse this student of plagiarism using that word using the word cutting and pasting from no notice these allegations no opportunity to address them zero now it's not the case that he's saying i should be told everything that could possibly happen i fail a class and that if i don't do the work i'm going to fail a class remaining six weeks of the internal medicine rotations she showed us that her attitude toward him was combative and that she announced in a public hallway that she was going to dismiss him even before the rotation was finished he alleges these are facts these are not opinions these are not conclusions these are facts he also alleges that the things that she claims to have done like meeting with him giving him feedback did not in fact occur this is a factual determination that cannot be made at this stage he says she's lying if she's lying that is  and these are factual determinations that cannot be made by the district court or this court on a motion to dismiss and make that possible this goes back to a judge wiener was asking you have to some reason why they'd have it out for him i think you you say in your brief that this professionalism policy you don't like has been on the books recover for years before he gets discipline he's the first person as far as you know ever punished under oath which is consistent with the fact that these doctors are busy people they're not trying to kick these students out of med school and unless they think there's a real problem with one of the students oh so we don't know the exact nature of her problem with dr renshaw but his allegations which must be taken as true show that he's a plausible claim that she was acting in bad  she was lying about him this isn't mere paranoia this is factual allegations that must be taken as true and if it's the case that she was doing things like claiming to have met with him and giving him feedback that he says that in fact never happened that's prime aphasia allegation of bad faith if he says she's lying and the court must take his factual