1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0017p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A MIR A. A L -D ABAGH , Plaintiff-Appellee ,

v

.

C ASE W ESTERN R ESERVE U NIVERSITY , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3551

Appeal from the United St ates District Court for the Northern District of Ohio at Cleveland. No. 1:14-cv-01046—James S. Gwin, District Judge. Argued: January 22, 2015 Decided and Filed: January 28, 2015 Before: BATCHELDER, SUTTON, and COOK, Circuit Judges.

_________________ COUNSEL

ARGUED: John B. Nalbandian, TAFT STETTINI US & HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Peter A. Holdsworth, WE GMAN, HESSLER & VAND ERBURG, Cleveland, Ohio, for Appellee. ON BRIEF: John B. Nalbandian, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David H. Wallace, Jenni fer B. Orr, TAFT S TETTINIUS & HOLLISTER LLP, Cleveland, Ohio, for Appellant. Peter A. Holdsworth, Christopher A. Holecek, Patrick J. Quallich, WEGMAN, HESSLER & VANDERBURG , Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ SUTTON, Circuit Judge. Authority to de cide whether a medical student deserves a degree usually rests with the st udent’s school. In this unusua l case, that did not happen. A federal district court found that Amir Al-Dabagh had proven himself worthy of a diploma and 

### >No. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 2

ordered Case Western Reserve University School of Medicine to give him one—disregarding the university’s determination that he lacked the professionalism required to discharge his duties responsibly. Because that lack-of-professionali sm finding amounts to an academic judgment to which courts owe considerable deference, we must reverse.
Anyone who has ever been to a doctor’s office knows the value of a good bedside manner. That is why Case Western does more than just teach its students facts about the human body. Its curriculum identifies nine “core competenci es.” First on the lis t is professionalism. Medical knowledge does not make an appearance until the fifth slot.

The curriculum tells a st udent to exercise profes sionalism in four ways:

 Consistently demonstrate[] ethical, hone st, responsible and reliable behavior.

 Identif[y] challenges to profe ssionalism and develop[] a strategy to maintain professional behaviors when adherence to professional standa rds is threatened in the clinical and/or research settings.

 Engage[] in respectful dialogue with peers, f aculty, and patients, to enhance learning and resolve differences.

 Recognize[] personal limitations and bias es and find[] ways to overcome them. R. 15-1 at 93, PageID #534.
The university’s student handbook emphasizes professionalism in several other places. Here: Case Western values “st udent professionalism . . . as highly as mastery of the basic sciences and clinical skills.” Id. at 61, PageID #502. And here: A Case Western degree conveys not only “a level of competency as measured by performance on tests” but also “a commitment to professional responsibility.” Id. at 62, PageID #503. And here: “Medical school education entails the mastery of didactic, theoretical, and t echnical material, as well as the demonstration of appropriate professional and interpersona l behavior.” R. 2-8 at 2, PageID #161.
The task of figuring out whether a stude nt has mastered th ese professionalism requirements falls to the univers ity’s Committee on Students. A ssembled from the university’s faculty and administrators, th e Committee “conducts detailed revi ews” of a student’s exam scores, clinical performance, and “p rofessional attitudes and behavior.” Id. at 1–2, PageIDNo. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 3

#160–61. A student cannot receive a degree without the Comm ittee’s approval, good grades notwithstanding.
Amir Al-Dabagh enrolled at Case Western’ s medical school in 2009. He did well academically, as exhibited by recommendation letters praising his “academic excellence” in 2011 and 2013, R. 10-5 at 1, PageID #345; see R. 10-6 at 1, PageID #347. He even published several articles and won a special award for “Honors with Distinction in Rese arch.” R. 2-7 at 1, PageID #159.

Professionalism was another matter. His tr oubles began during his first semester. All first-year medical students must participate in di scussion sessions and arrive on time to each of them. Al-Dabagh came late to almost thirty pe rcent of the meetings, holding up the class as a result. According to his instructor, he asked not to be marked late each time. According to his own testimony, he asked only once, and only then because the admitted student he was hosting was also running late. But he does not deny the tardiness or its frequency. And in his instructor’s judgment, quite reas onably, “[a]sking [a faculty member ] to lie about attendance” is “a more serious breach of professionalism[] than tardiness itself.” R. 12-3 at 3, PageID #375.
The problems did not stop there. In 2013, tw o female students accused Al-Dabagh of behaving inappropriately at a formal dance called the Hippo Ball—short (we presume) for Hippocrates. One said he propositioned her for se x, “grab[bed her] hand and trie[d] to pull [her] towards the dance floor,” and told her that, “[I]f you don’t dance with me, I’m gonna embarrass you until you do.” R. 12-1 at 2, PageID #368. The other said she was walking across the room when she “felt someone grab [her] butt.” Id. at 4, PageID #370. When she turned around, she saw Al-Dabagh—at which point he and her boyfriend nearly came to blows. Later that night, according to a police incident report, Al-Dabagh ju mped out of a moving taxi after attempting to stiff its driver out of a twenty-dollar fare. Al-Dabagh recalls the night differently. He never harassed anyone, never tried to we lch on the driver, and fell out of the cab when “someone assaulted” him. R. 2-2 at 2, PageID #128. Whatever happened, the night’s events sparked his first run-in with the Committee, which fo rced him to undergo “an intervention on professionalism” and threatened him with “dismissal” if “further issues” arose. R. 15-10 at 2, PageID #598.No. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 4

Further issues arose. Later that year, Al-Dabagh received a stinging evalua tion about his performance in an internal medicine internship . Nurses and hospital staffers “consistently complained about his demeanor”; a patient’s fam ily once “kicked him out of the room”; and he sometimes gave patient-status presentations wit hout first preparing. R. 12-5 at 2, PageID #379. Al-Dabagh by contrast asserts that the negativ e comments stemmed from his “critical . . . attitude” toward one of his supe rvisors—an account confirmed by anot her evaluator. R. 2-2 at 3, PageID #129; R. 2-11 at 1–2, PageID #165–66. Bu t he does not dispute that the Committee “serious[ly] consider[ed]” dismissing him in resp onse. R. 15-3 at 5, PageID #545. It opted for less severe but still drastic meas ures, requiring him to repeat the internship and enrolling him in “gender specific training.” R. 2-12 at 1, PageID #167. It also a dded an addendum to his letter of recommendation for residency programs, the existe nce of which a faculty supporter described as “very permanent[ly] . . . damaging” and “too he avy a punishment.” R. 2-11 at 1, PageID #165. The Committee had not written such an addendum in at least twenty-five years. When AlDabagh appealed, the Committee reaffirmed its decision, citing “a pattern of unprofessionalism with regard to communication and persona l conduct.” R. 12-8 at 2, PageID #385.
Matters came to a head in April 2014, when the university received word that North Carolina had convicted Al-Dabagh for driving while intoxicated. Al-Daba gh insists that he was not in fact drunk. He swerved to miss a deer, he says, and hit a utility pole instead. The university by this point had already invited Al-D abagh to graduate. No matter: The Committee convened an emergency session, unanimously refused to certify him for graduation, and dismissed him from the university. After he appealed, the Committee agreed to lighten its punishment, offering to let him withdraw from th e university in writing— freeing him to apply to other programs without ha ving to explain a damaging official dismissal.
Al-Dabagh did not accept the Co mmittee’s offer. Instead, he sued the university in federal district court, alleging that it breached its state-law dutie s of good faith and fair dealing when it declined to award him a degree. The court agreed, ordering th e university “to issue a diploma to [Al-Dabagh] as having satisfied the re quirements to become a doctor of medicine and to list [him] as having graduated in whatever wa ys are customary for the school.” R. 19 at 1.No. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 5

The university appeals. Reviewi ng the district court’s factfindi ng for clear error and its legal conclusions anew, we reverse.
To start, we must smooth out a procedural wrinkle. After losing in the district court, Case Western did not move for a stay. Instead, it complied w ith the injunction and gave AlDabagh a degree. Thanks to its decision, Al-Dabagh is now a practicing resident. Doesn’t that moot the case? No, because the univers ity will revoke that degree if it wins. See Motion to Expedite Appeal, Al-Dabagh v. Case W. Reserve Univ. , No. 14-3551. And an appeal remains alive if the effects or benefits of compliance can be undone. Ch arles Alan Wright et al., 13B Federal Practice and Procedure § 3533.2.2 (3d ed. 2014); c f. Carachuri-Rosendo v. Holder , 560 U.S. 563, 573 n.8 (2010). We therefor e have jurisdiction to move on.
Ohio treats the relationship between a unive rsity and its students as “contractual in
nature.” Behrend v. State , 379 N.E.2d 617, 620 (Ohio Ct. App. 1977). Case Western’s student handbook supplies the contract’s terms, as the part ies agree, and makes clear that the only thing standing between Al-Dabagh and a diploma is th e Committee on Students’s fi nding that he lacks professionalism. Unhappily for Al-Dabagh, that is an academic judgment. And we can no more substitute our personal views for the Committee’s when it comes to an academic judgment than the Committee can substitute its views for ours when it comes to a judicial decision. Ohio law allows a court to overturn such judgments only if they are “arbitrary and capricious,” regardless of “whether the court would have d ecided . . . matter[s] differently.” Bleicher v. Univ. of Cincinnati Coll. of Med. , 604 N.E.2d 783, 788 (Ohio Ct. App. 1992). Federal Due Process law comes to the same end. A court must “show great respect for the faculty’s professional judgment” and may not “override” that judgment “unl ess it is such a substantial departure from accepted academic norms as to demonstrate that the . . . committee responsible did not actually exercise professional judgment.” Regents of Univ. of Mich. v. Ewing , 474 U.S. 214, 225 (1985).
Al-Dabagh’s dismissal on professionalism gr ounds amounts to a deference-receiving academic judgment for several reasons. The student handbook—the governing contract—says professionalism is part of Case Western’s academic curriculum at least four times. Judges are “ill equipped” to second-guess the Un iversity’s curricular choices. Doherty v. S. Coll. of Optometry , 862 F.2d 570, 576 (6th Cir. 1988). The Ohio Supreme Court indeed has deferred to aNo. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 6

similar form of academic judgment by this same in stitution in the past. In a case with greater equities than this one, the Court approved the me dical school’s refusal to admit a gifted blind applicant because its goal was not to train “specialized” doctors—she wished to be a psychiatrist—but generalist ones capable of “func tion[ing] in a broad variety of clinical situations.” Ohio Civil Rights Comm’n v. Case W. Reserve Univ. , 666 N.E.2d 1376, 1387 (Ohio 1996).
Nor do we have any reason to doubt the propriety of this curricular choice. Professionalism has been a part of the doctor’s ro le since at least ancient Greece. The original Hippocratic Oath required adherents to “refrain . . . from acts of an amorous nature” in “[w]hatsoever house [they] may enter,” “whateve r may be the rank of those whom it may be [their] duty to cure.” 3 The London Medical Repository 258 (James Copland ed., 1825). It is entirely reasonable to assess the presence of pr ofessionalism early. Fo r once a medical student graduates, we must wait for a violation be fore we may punish the absence of it. See Pons v. Ohio State Med. Bd. , 614 N.E.2d 748 (Ohio 1993) (affirming a medical board’s decision to suspend a doctor after he had sex with an emotionally vulnerable patient). Cases defining “academic decisions” in the Due Process context confirm the point. The United States Supreme Court has even deemed “academic” a school’s d ecision to dismiss a student who “lacked a critical concern for personal hygiene.” Horowitz v. Bd. of Curators of Univ. of Mo. , 435 U.S. 78, 81 (1978).
We repeatedly have emphasized that “acad emic evaluations” may permissibly extend beyond “raw grades [and] other objective criteria.” Ku v. Tennessee , 322 F.3d 431, 436 (6th Cir. 2003); see Yoder v. Univ. of Louisville , 526 F. App’x 537, 549–50 (6th Cir. 2013). Other circuits have come to the same conclusion. Dismissing a medical student for lack of professionalism is “academic,” says one. Halpern v. Wake Forest Univ. Health Scis. , 669 F.3d 454, 463 (4th Cir. 2012). Refusing to approve a Ph.D. thesis because its acknowledgement section was unprofessional is “academic,” says another. Brown v. Li , 308 F.3d 939, 943, 952 (9th Cir. 2002). Dismissing a student for “non-cognitive” problems like “sleeping in” is “academic,” says still another. Richmond v. Fowlkes , 228 F.3d 854, 856, 858 (8th Ci r. 2000). And so on. See Harris v. Blake , 798 F.2d 419, 423 (10th Cir. 1986) (dismissing a student for failing to attend practicalNo. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 7

class sessions is “academic”); Perez v. Tex. A & M Univ. at Corpus Christi , No. 14-40081, 2014 WL 5510955, *4 (5th Cir. Nov. 3, 2014) (dismissi ng a student for tardin ess is “academic”).

Whether we take our cue from Case Wester n’s curriculum, the student handbook contract between the student and universit y, the Supreme Court, the Ohio cases, our own cases, or cases from other circuits, the conclusion is the same: The Committee’s professionalism determination is an academic judgment. That conclusion all but resolves this case. We may overturn the Committee only if it “substantial[ly] depart[ed] from accepted academic norms” when it refused to approve Al-Dabagh for graduation. Ewing , 474 U.S. at 225. And gi ven Al-Dabagh’s track record—one member of the Committee does not recall encountering anot her student with AlDabagh’s “repeated professionalism issues” in his quarter century of experience, R. 15-5 at 3, PageID #560—we cannot see how it did.
To the contrary, Al-Dabagh insists: The Committee’s decision was a “punitive disciplinary measure” that had nothing to do with academics. Appellee’s Br. at 27. In support, he points to the handbook’s statement that the Committee “acts on behalf of the Faculty of Medicine in non-academic disciplinary matters involving medical students.” R. 15-1 at 60, PageID #501. Doesn’t this show that its ac tion was non-academic in nature? No, for two reasons. First, his argument overlooks the reality that the university’s disciplinary procedures are parallel to, not exclusive of , the Committee’s role in approvi ng students for graduation. That same handbook section makes clear that “[u]nprofessiona l activities may also be subject to a formal university disciplinary action.” Id. at 59, PageID #500. And the Committee’s refusal to approve Al-Dabagh for graduation took place out side the disciplinary process. Second, his argument fails to wrestle with the prominent place of professionalism in the university’s academic curriculum—which itself is an academic decision courts may not lightly disturb.
Even if professionalism is an academic criterion, Al-Dabagh persists that the university defined it too broadly. As he sees it, the only professional lapses that matter are the ones linked to academic performance. That is not how we see it or for that matter how the medical school sees it. That many professionalism-related case s involve classroom inci dents does not establish that only classroom incidents are relevant to the professionalism inquiry, and Al-Dabagh has identified no case holding that the concept must be defined so narrowly. An analogy illustratesNo. 14-3551 Al-Dabagh v. Case W. Reserve Univ. Page 8

the point. Our own standards indicate that pr ofessionalism does not end at the courtroom door. E.g. , Supreme Court Rules for the Government of th e Bar of Ohio, Rule I, § 11(D)(3)(b), (k) (instructing Ohio’s bar admissions committee to consider an applicant’s drug and alcohol problems and his “[n]eglect of financial resp onsibilities” when assessing his character and fitness). Why should hospitals operate any diffe rently? As for the danger that an expansive view of professionalism might fo rgive, or provide a cloak for, arbitrary or discriminatory behavior, we see no such problem here. Nothing in the record suggests that the university had impermissible motives or acted in bad faith in this instance. And nothing in our deferential standard prevents us from invalidating genuine ly objectionable actions when they occur.
Al-Dabagh next claims that the univers ity’s residency-recommendation letters demonstrate that his missteps were not a big deal . Had he really been as unprofessional as the university now makes him out to be, he asks, why did it praise his professiona lism when he applied to residency programs? At one level, we share Al-Dabagh’s puzzlement. Why did the university omit any mention of his professionalism -related struggles from its recommendation? Its explanation—that it tries “t o support its students as much as possible,” R. 18 at 18–19, PageID #656–57—is unconvincing. Even so, the university sent the recommendation before AlDabagh failed his internship. It was that failure that first led the Committee to contemplate AlDabagh’s dismissal. And it was that failure that prompted the university to provide an addendum to its recommendation that referenced Al-Dabagh’s problems.
Al-Dabagh, last of all, claims that the Committee faulted him for things that didn’t happen (for instance, the sexual harassment inci dents at the Hippo Ball) and disregarded his explanations for the things that did (for inst ance, his poor internship performance and his driving-while-intoxicated convictio n). He invites us to decide for ourselves whether he behaved in a sufficiently professional way to merit a degree. That, as we have made clear, goes beyond our job description. It was neither arbitrary nor capricious for the Committee to credit other accounts above Al-Dabagh’s. And if a dismi ssal from medical school for poor hygiene and untimeliness falls within the realm of reason, Horowitz , 435 U.S. at 91 n.6, it should go without saying that Al-Dabagh’s dismissal falls within the realm of reason too.
For these reasons, we reverse.