### The Honorable David D. Noce, United States Magistrate Judge 1 

### for the Eastern District of Missouri, to whom the case was r eferred by consent of the parties pursuant to 28 U.S.C. § 636(c). ___________ No. 95-2409

___________ Dianna Disesa, * * Appellant, * * v. * Appeal from the United States * District Court for the St. Louis Community College; * Eastern District of Missouri. Betty Duvall, Individually and * in capacity as Dean of * Instruction; Francis R. Dennis, * Individually and in capacity * as Chairperson of Nursing * Department; Thelma Vasques, * Individually and in capacity as * Nursing Instructor, * * Appellees. *

___________ Submitted: January 11, 1996 Filed: March 14, 1996

___________ Before WOLLMAN, ROSS, and MURPHY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Dianna Disesa appeals from the magistrate judge's grant of summary 1 judgment in her 42 U.S.C. § 1983 claim against S t. Louis Community College at Florissant (the "College") and five college officials, allegin g violations of her sub stantive and procedural due process rights regarding a failed nursing school course. We affirm.

### -2- I.

Disesa a lleges that during her final semester as a nursing studen t at the College she wa s informed that she had failed the classroom portion of a multi-part class entitled "Nursing of Adults and Children III," taugh t by defendants Thelma Vasquez, Dorothy Bowen and Joan Burns. Following the receipt of this failing grade and the final decision not to allow Disesa to retake the failed exam, Disesa was required to repeat the entir e semester course, thus postponing her graduation by one semester.

The cours e grade was calculated on the basis of five quizzes, which accounted for seventy -five percent of the grade, and a final examination, which accounted for the remaining twenty-five percent. Following the firs t few quizzes, several students complained of admi nistrative deficiencies in the testing procedures, including typographical errors in the materials an d test questions, testing on materials not covered in class, and an inabilit y to review the quizzes after they were graded. The nursing departmen t responded to these complaints by issuing a formal announcement regarding
more rigorous faculty proofreading requirements and by allowing th e students to retake the third quiz.
Following the final exam, Disesa received a call from Francis D ennis, the chair of the nursing department, who informed Disesa that she ha d failed the classroom portion of the course and thus would not be allowed to graduate on schedule. In a class of forty-si x students, Disesa was one of seven who failed. The failing students met w ith Dean Dennis to discuss the possibility of re taking the test. After a series of faculty meetings to discus s the situation, the request was denied. The decision wa s appea led to the Dean of Instruction, Betty Duvall, who also denied th e students' request to retake the test.

### The Honorable Edward L. Filippine, United States Distric t 2 

### Judge for the Eastern District of Missouri. -3- The students referred their complaint to the Missouri Board o f Nursing, and an investigation followed. On December 20, 1989, the Board issued a list of reco mmendations to be implemented by the college nursing program and requesteda response. After receiving no response, the Board issued a citation to the College for deficiencies in meeting the minimum standa rds of accreditation. Subsequently, Dean Dennis responded with a compliance proposal that satisfied the Board and resolved the inquiry.

Inresponse to the students' complaints, the College offered th e failed co urse the following fall so that the students would not have t o wait for its usual spring offering. Disesa retook the class in the fall semester and passed. She then passed the state licensing exam.

OnMay 23, 1991, Disesa filed a section 1983 action against th e Colleg e, Vasquez, Bowen, Burns, Dennis, and Duvall. Disesa's complain t alleged numerous substantive and procedural due process violations related to the tea ching of the failed course, Disesa's failing grade, and th e administration's resolution of her complaints. In response to defendants' motion to dismiss for failure to state a cause of action, the distric t court dismissed without prejudice all but four of Disesa's claims, a n

2 action from which Dis esa does not appeal. The claims remaining were: 1) a procedural due process claim that defendants D ennis and Duvall failed to follo wgrievance procedures established by the College Handbook fo r resolving disputes regarding grading decisions; 2) a substantive du e proces s claim against Vasquez, Burns, and Bowen concerning the allege d arbitraryand capricious administration of classroom prerequisite s regarding individual students' attendance and wo rk load; 3) a substantive due process claim tha t curricula requirements were waived on an arbitrary and capricious basis for

### -4-

students similarly situated to Disesa; and 4) a substantive due process claim that defendants Dennis and Duvall's response to Disesa's complaints was motivated by ill will or bad faith.

For resolution of these remaining issues, the parties consented t o the jurisdiction of t he magistrate judge, who granted summary judgment on each claim.

II.

We rev iew de novo a grant of summary judgment, applying the sam e standard as the distr ict court. Billingsley v. St. Louis County , 70 F.3d 61, 62 (8th Cir. 1995). We will affirm the district court's decision if
we find no genuine issue of material fact and that the moving party i s entitled to judgment as a matter of law. Id.
We first address Disesa's procedural due process claim alleging that inreviewing Disesa's complaints Dennis and Duvall failed to comply with proc edures dictated by the College Student Rights and Responsibilitie s Handbook that was in effect during the Spring 1989 semester. The core of thi s claim is that an adequate forum was never provided for review o f allege d course deficiencies that may have influenced the failing grade
. Disesa points to the Handbook section entitled "violation of studen t rights ," which provides for a hearing committee to review studen t grievances, and argues that she should have rece ived such a hearing. This sect ion, however, exempts from this process "purely academic matters, " which are to be "handled through normal academic channels, ending with the decision of the dean of instruction."

If Disesa's grade complaint was properly classified as a purel y academic matter, then it was appropriately handl ed through normal academic chann els, ending with the final decision of the Dean of Instruction a s required by the handbook. Disesa argues,

### -5-

howeve r, that her complaint concerned personnel problems that were no t purelyacademic. She alleges that her grade was not entirely based o n academic merit but was influenced by numerous administrative problems in th e course. For example, Disesa points to the alleged arbitrar y implementation of a class policy prohibiting eraser marks without approval
. Disesa alleges that she was not permitted to cha nge an answer on her final exam, while other students were permitted to do so. Although this an d other alleged discrepancies may have affected Disesa's grade, we rejec t this attempt to bootstrap already-dismissed claims pertaining to the fault y administ rationof the class onto a remaining claim. These allege d procedural irregularities do not rise to a level sufficient to transport the grade outside the realm of academic decision. Indeed, as the Supreme Cou rt noted in Board of Curators v. Horowitz , 435 U.S. 78, 90 (1978) , grading decisions require "an expert evaluation of cumulative information and [are] not readily adapted to the procedural tools of judicial o r administrative decisionmaking." Such determinations partake of the essenc e of purely academic decisions.

Moreover, even if Disesa could show a factual dispute regardin g whether the College failed to follow its own gri evance procedures, she was gr anted procedural protection beyond that required by the Fourteent h Amendment. See Schuler v. University of Minneso ta , 788 F.2d 510, 515 (8th Cir. 1 986) (holding that factual issue of University's compliance wit h internally prescribed procedural rules need not be resolved upon a finding that plaintiff receiv ed constitutionally adequate process), cert. denied , 479 U.S. 1056 (1987). Disesa took five quizzes that made up seventy-five percent of her grade. The notice of her deficient performance that these quizz es provided her, combined with the review of her grade by severa l administrators, more than satisfied any procedur al due process rights that she may have had.

### -6- We ne xt address Disesa's substantive due process claims. We hav e held that a student handbook setting forth a grievance procedure to contes t
an allegedly capricious or improper grade can establish a property interes t in non-arbitrary grading. Ikpeazu v. University of Nebraska , 775 F.2d 250 , 253 (8th Cir. 1985) (per curiam). We will assum e for purposes of analysis that the handbook created such an interest in this case. To establish a substantive due process claim, Disesa must show that there was no rational basis for the College's decision or that the dec ision was motivated by bad faith or ill will. Id. (citations omitted).

The first substantive due process claim against Vasquez, Burns, and Bowe nalleges that their administration of classroom prerequisites wa s arbitr aryand capricious. Specifically, this claim points to th e instructors' handling of the clinical portion of the class, asserting that
some stude nts were allowed to make up absences while others were not
. Disesa admits, however, that she was not required to make up the one day of clinical that she missed. Because this alleged arbitrary policy was no t applied to Disesa's detriment because she passed the clinical portion of the course, this claim lacks merit.

Disesa al leges that the defendants waived curricula requirements on
anarbitrary and capricious basis. To support this claim, Disesa argues that two other nursin g students, Andrea Garafalo and Linda Park, failed a course entitled Anato my and Physiology II and were allowed a retest while Disesa was denied the opportunity to retake her failed exam. The course failed by Garafalo and Park, however, was taught by the biology department , not by the nursing sc hool. Disesa does not allege that a nursing student was ever allowed to retake a final exam in a cou rse offered by the nursing school. Because Dise sa has failed to show arbitrary or capricious action with regard to the decision to deny her request to retest, this claim must fail.

### -7- Disesa alleges that Dennis and Duval l's review of her complaints and ultimate decision to uphold the grade were motivated by bad faith or ill will. Di sesa argues that the decision to treat her complaint as a n academic issue improperly precluded a substantive review of the teaching methods of the course. Disesa appears to argue that a review of the grade is meaningless without a review of the factors that comprised the grad e dec ision. We find no evidence of bad faith or ill will in Dennis an d Duvall's actions. The record shows that Dennis and Duvall engaged in a good faith effort to correct the teaching deficiencies by enacting stricte r proof- reading requirements and by allowing the retaking of one quiz
. Moreover, they offered the course in the fall so that Disesa would not hav e to wait until spring to graduate. These actions admit of no finding of il l will or bad faith toward Disesa.
The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.