No. 13659 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

SANDRA S. JOHNSON, 

Plaintiff and Appellant, 

-vsROBERT E. SULLIVAN et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding 

Counsel of Record: 

For Appellant: 

William George Harris argued, Missoula, Montana 

For Respondents: 

George L. Mitchell argued, Missoula, Montana 

Submitted: June 22, 1977 

Decided : 

?.!riv 16 1977 

f - i Filed: ' 

-. 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

plaintiff Sandra S. Johnson appeals from a judgment of the 

~istrict Court, Missoula County, upholding her exclusion from the 

School of Law of the University of Montana for failure to meet 

academic standards. By her action plaintiff sought readmission to 

the law school, the removal from her academic record of a grade of 

F received in a Constitutional Law course, and to have her cumulative 

grade point average computed without regard to this failing grade. 

Defendants, hereinafter referred to as the University are: 

Robert E. Sullivan, Dean of the School of Law of the University of 

Montana; Richard C. Bowers, President of the University of Montana; 

and Lawrence K. Pettit, Commissioner of Higher Education of the State 

of Montana. 

Following trial of the cause without a jury, the District 

Court entered judgment denying the relief sought and rescinding a 

restraining order and injunction pendente lite under which plaintiff 

had been permitted to attend classes. 

Plaintiff entered the University of Montana School of Law in 

the fall of 1973, and successfully completed her first two semesters 

of study. She received a grade of F in the Constitutional Law 

course and grades of D in two other courses taken during her third 

semester, and consequently, was deficient by eleven grade points at 

the end of that semester. Plaintiff was excluded from the law 

school under the applicable exclusionary rule which provides that 

students with a deficiency of six or more grade points at the end 

of their third semester are not allowed to continue their law studies. 

Plaintiff's second petition for readmission subsequent to that exclusion was granted by the law school faculty, and she returned for 

the next academic year. At the end of that year, her academic 

performance was deficient by eight grade points. plaintiff was 
excluded again, in this instance for failure to meet the law school 

requirement that a student have a cumulative grade point average of 

2.0, which is a zero grade point deficiency, at the completion of 

the fourth semester. 

Plaintiff again petitioned for readmission. The petition was 

denied. She then brought this action and obtained a restraining 

order and injunction pendente lite permitting her to attend thirdyear classes. Following entry of judgment against her in the District 

Court, plaintiff appealed and obtained a stay of judgment and a restoration of the injunction pending determination of the merits on 

appeal. 

The central issue on appeal is whether the practices, policies, rules and procedures under which the fitness of a student to 

continue the study of law is appraised, as applied to plaintiff, 

violate Constitutional requirements of due process and equal protection and section 93-2002, R.C.M. 1947. 

Plaintiff's argument with respect to this issue is based on 

her contention that the method by which the University computed her 

cumulative grade point average is unfair and unreasonable. 

The University computes a student's cumulative grade point 

average by dividing the number of grade points earned by the number 

of credits undertaken. For the purpose of this determination, four 

grade points are assigned for each credit of A, three grade points 

for each credit of B, two grade points for each credit of C, one 

grade point for each credit of D, and zero grade points for each 

credit of F. 

Under the general University rule, the last grade received in 

a repeated course replaces the prior grade. If a student repeats a 

course for which he or she initially received a grade of F, the 

student's cumulative grade point average reflects only the last grade 

earned; the failing grade is not applied to the computation of the 

student's cumulative grade point average. 
In the School of Law, however, a student's cumulative grade 

point average is computed on the basis of all courses for which a 

student has registered and received a grade. If a grade of F is 

received in a law school course and the course is repeated, both the 

initial F and the last grade received are included in the computation 

of the student's cumulative grade point average. In effect, the law 

school averages both grades received in a repeated course, while other 

schools and departments of the University generally do not. 

Plaintiff received her failing grade in Constitutional Law, 

a course required for graduation from the School of Law. By law 

school regulation, she therefore was required to repeat the course. 

In the repeated course, as in all courses taken during the academic 

year following her readmission, plaintiff received a passing grade. 

Her cumulative grade point average, however, remained below the 2.0 

required of law students at the end of their fourth semester. This 

deficiency can be attributed to the continuing application of the 

failing grade to plaintiff's cumulative grade point average. 

Plaintiff first contends this method of computing a student's 

cumulative grade point average, as applied to her, violates due process requirements and denies a fair and equal application of the 

academic requirements for graduation. 

The test for determining whether due process requirements are 

met was set forth by this Court in Milk Control Board v. Rehberg, 

141 Mont. 149, 155, 376 P.2d 508 (1962). Quoting the United States 

Supreme Court in Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 

78 L.Ed. 940, 89 A.L.R. 1469 (1934), this Court stated: 

" * * * '[Tlhe guaranty of due process * * * demands 

only that the law shall not be unreasonable, arbitrary, 

or capricious, and that the means selected shall have 

a real and substantial relation to the object sought 

to be attained.' * * * " 

In the present case, the question is whether it is unreasonable, 

arbitrary, or capricious for the University to include both grades 
received for a repeated course in its computation of a law student's 

cumulative grade point average. Resolution of this question turns 

on the relation between that method of computation and the objectives 

the University has in determining a grade point average. 

The immediate objective of any method of computing a grade 

point average is to provide an accurate, easily understood measure 

of academic performance. As it relates to the law school's exclusionary rule, a student's grade point average is used as an indication 

of his or her presumed fitness to continue the study of law. If a 

student's grade point average falls below a set standard, University 

rules authorize the law school to exclude the student from further 

study . 

Because of this state's "diploma privilege", graduates of the 

School of Law may be admitted to practice on motion; they are not 

necessarily required to take and pass the state's bar examination. 

Graduation from the School of Law, therefore, virtually guarantees 

admission to practice. Ultimately, then, the object of measuring academic performance and allowing or precluding a law student's continued 

study on the basis of that performance is to assure that graduates 

of the School of Law are qualified to enter practice. 

The University argues that its method of computing law students' cumulative grade point averages is reasonably related to the 

objectives of determining first, academic competence, and ultimately, 

in light of the "diploma privilege", the probability of professional 

competance. At the trial of the present case, Robert E. Sullivan, 

Dean of the School of Law, testified the rule requiring the application of both grades received for a repeated course "goes to the 

determination of a capacity and capability of a person to become a 

lawyer." He also testified that the law school faculty, in promulgating this rule, considered that a repeater would have the benefit 

of having taken the course before, and would have a competitive ad- 
vantage over students taking the course for the first time. It was 

the law school faculty's judgment that capacity in a repeated course 

would be more accurately reflected by an averaging of the grades 

received than by disregarding the first grade. 

Plaintiff concedes that the School of Law is responsible for 

ensuring that its graduates are qualified and competent to serve the 

courts and people of this state. She contends the rule by which both 

grades received in a repeated course were applied in the computation 

of her cumulative grade point average bears no reasonable relation 

to the law school's goal of meeting this responsibility. 

Plaintiff asserts that she has established competence in 

Constitutional Law by receiving a grade of C for the course in her 

second attempt. She argues that only the passing grade should be 

treated as indicative of her competence in Constitutional Law. This 

argument is based for the most part on plaintiff's interpretation of 

the effect of the law school's acceptance of her second petition for 

readmission following her first exclusion. 

The law school rule on readmission at that time stated: 

"A student excluded on the basis of substandard 

academic performance shall not be readmitted, 

except in extraordinary cases when satisfactory 

showing is made to the faculty, by written petition, 

that the substandard performance was the result of 

unusual circumstances beyond the control of the 

student, that such circumstances no longer exist, 

and that the student has the capability and desire 

to perform satisfactory work." 

The "unusual circumstances" that existed during the semester 

in which plaintiff received the failing grade were complications due 

to pregnancy. These circumstances were detailed in plaintiff's 

successful petition for readmission. Plaintiff argues that by 

granting that petition, the law school faculty impliedly found the 

failing grade to be invalid. 

The University contends the granting of a petition for readmission does not have this effect. Facts adduced at trial indicate 
the law school faculty has no means by which they can determine whether 

circumstances alleged in such a petition actually existed or whether 

the student's substandard performance was related to those circumstances. Taking the petition at face value, and examining the academic record of the student, the law school faculty decides by majority vote simply whether the student merits another opportunity. 

Plaintiff would have this Court declare the first grade she 

received in Constitutional Law is invalid and the University, therefore, should be precluded, on due process grounds, from using that 

first grade in the measurement of her academic compete-nce. This we 

decline to do. 

In Connelly v. University of Vermont and State Agricultural 

College, 244 F.Supp. 156 (D. Vermont 1965), a third year medical 

student alleged he had been arbitrarily given a failing grade in a 

required course in an action seeking readmission following his dismissal for academic deficiency. The court held that the question of 

the arbitrariness of the university's action was a factual determination, and accordingly denied the university's motion to dismiss. In 

language relevant to the present case, at 160 of 244 F.Supp., that 

court discussed the boundaries of such a claim: 

"The effect of these decisions [concerning student 

dismissals for failure to attain a proper standard 

of scholarship] is to give the school authorities 

absolute discretion in determining whether a student 

has been delinquent in his studies, and to place the 

burden on the student of showing that his dismissal 

was motivated by arbitrariness, capriciousness, or 

bad faith. The reason for this rule is that in 

matters of scholarship, the school authorities are 

uniquely qualified by training and experience to 

judge the qualifications of a student, and efficiency 

of instruction depends in no small degree upon the 

school faculty's freedom from interference from other 

noneducational tribunals. It is only when the school 

authorities abuse this discretion that a court may 

interfere with their decision to dismiss a student." 

(Bracketed material added.) 

There is no dispute that plaintiff was apprised of the rule 

requiring the inclusion of the first grade received for a repeated 
course in the computation of her cumulative grade point average. The 

applicable general University catalog and law school bulletin explicitly provide that the first grade received in a repeated course remains on the student's record "for all purposes". There is also no 

dispute that the University applied this method in its computations 

of the cumulative grade point averages of all students in the School 

of Law. Plaintiff has shown neither arbitrary action on the part of 

the University with respect to its promulgation of the rule itself 

nor arbitrariness in the University's application of the rule in its 

measurement of her academic performance. 

This state's "diploma privilege" does not divest the University of its discretion to set standards for the measurement of academic competence. Absent a showing that these standards were arbitrarily or capriciously set or applied, this Court will not find 

them to be unrelated to the ultimate object of ensuring that graduates 

of the School of Law are qualified to enter practice. 

Plaintiff next contends the differing methods used by the 

University in computing cumulative grade point averages of law students and students in other disciplines reflect a classification 

that violates equal protection guarantees. 

Clearly, a law student is treated differently than other 

University students in this respect; the University does not dispute 

the effect of the differing rules is to classify students according 

to their field of study. However, the existence of a classification 

does not of itself constitute a denial of equal protection. Great 

Falls Nat. Bank v. McCormick, 152 Mont. 319, 323, 448 P.2d 991 (1968). 

When, as in the present case, the classification is neither 

based on a "suspect criterion" such as race, wealth, nationality, or 

alienage, nor affects a "fundamental right" such as the right to 

vote, the right of interstate travel, or the right to freedom of 

speech, the 'rational basis" test is applied to determine its con- 
stitutionality. In Montana Land Title Assoc. v. First American 

Title, 167 Mont. 471, 475, 476, 539 P.2d 711 (1975), this Court 

stated: 

" * * * While reasonable classification is permitted 

without doing violence to the equal protection of 

the laws, such classification must be based upon 

some real and substantial distinction bearing a 

reasonable and just relation to the things in respect to which such classification is imposed; such 

classification cannot be arbitrarily made without 

any substantial basis. * * *" 

As the Supreme Court of Washington stated in DeFunis v. Odegaard, 82 

" * * * the question is whether the classification 

is reasonably related to a legitimate public purpose. 

And, in applying this 'rational basis' test, ' [A] 

discrimination will not be set aside if any state 

of facts reasonably may be conceived to justify it.' 

McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 

1101, 1105, 6 L.Ed.2d 393 (1961)." 

There are many practical differences between the School of 

Law and other schools and departments of the University; for example, 

instruction methods and examination procedures differ, as do attendance policies and requirements for class preparation. The different 

methods used in the computation of cumulative grade point averages 

of law students is not the only dissimilarity which reflects the 

distinction between law students and students in other graduate or 

undergraduate areas of study. 

It is not unreasonable to classify students in this manner. 

The study of law is substantively different from the study of English, 

or forestry, or pharmacy. The use of different methods to measure 

academic performance among the various schools and departments of 

the University indicates this difference has been recognized. 

There is no classification of students within the law school 

with respect to the computation of their cumulative grade point 

averages; all law students who repeat a course have the first grade 

received in that course included in the computation. There is no 

denial of equal protection in measuring the academic performance of 
law students by a method that is not employed by other schools and 

departments of the University. 

Plaintiff's final contention is that even if the University's 

method of computing her cumulative grade point average is found to 

be valid, and her academic record accordingly is unchanged, it was 

arbitrary and capricious for the law school faculty to deny her petition for readmission. Plaintiff does not challenge the exclusionary 

standard, which provides that law students must have a 2.0 cumulative 

grade point average at the completion of their fourthsemester. She 

asserts that she should have been readmitted despite her failure to 

meet this standard. 

Plaintiff argues that since other students with an academic 

deficiency have been readmitted, her exclusion on that basis is 

unfair. Certainly, not all petitions for readmission are granted. 

Plaintiff does not argue that the law school faculty should be required 

to either grant or deny all such petitions. She neither presented 

nor offered any proof that would tend to show her petition was not 

given the same consideration that is given to the petitions of other 

students similarly excluded. Absent any showing of discriminatory 

or arbitrary treatment by the faculty in their review of her petition 

for readmission, we must conclude that her contention is groundless 

and her petition was properly denied. 

For the reasons set forth above, the judgment of the District 

Court is affirmed. 

Chief Justice A