author: Alexander, J.

text:
    In the Matter of Susan M., Respondent-Appellant, v New York Law School, Appellant-Respondent.
    Argued April 26,1990;
    decided June 14, 1990

      POINTS OF COUNSEL

      Harold P. Weinberger and Jeffrey S. Trachtman for appellant-respondent.

      Thomas F. Keane for respondent-appellant.

      Andrew Schepard for Deans of New York State law schools, amici curiae.

   OPINION OF THE COURT

Alexander, J.

In this article 78 proceeding, petitioner challenges her dismissal for academic deficiency from respondent law school. Because her allegations are directed at the pedagogical evaluation of her test grades, a determination best left to educators rather than the courts, we conclude that her petition does not state a judicially cognizable claim. Accordingly, we modify the order of the Appellate Division to dismiss the petition in its entirety.

I

Petitioner enrolled at respondent law school in the fall of 1985. In accordance with respondent’s published rules, petitioner was automatically placed on academic probation at the end of her first year for having failed to achieve a 2.0, or "C” cumulative average. The law school rules further provided that a student on probation who thereafter fails to achieve both a semester and a cumulative average of 2.0 is subject to academic dismissal at the discretion of the law school’s Academic Status Committee (Committee). Such a student, however, has the right to present written and oral statements to the Committee explaining his or her failure to meet the school’s academic standards.

Although petitioner earned a cumulative average of 2.001 at the end of her third semester, in her fourth semester her average dropped to 1.546, lowering her cumulative average to 1.89. Consequently she was notified that the Academic Status Committee would be considering whether she would be permitted to continue her studies. She submitted a written statement to the Committee, describing factors that she claimed affected her performance. In this written statement, petitioner blamed her less than "C” average on the grades she received in two of her fourth semester courses, namely, Constitutional Law II, in which she received a "C — ”, and Corporations, in which she received a "D”. She argued that these grades did not fairly and accurately reflect the knowledge she had demonstrated on the exams in those courses. Petitioner also appeared before the Committee to state her case orally. She contends that when she attempted to raise the subject of the two grades, she was immediately interrupted by the Committee chairperson who told her that the Committee would not consider them. Petitioner then gave other reasons for her below average performance. They were unavailing and the Committee voted unanimously to dismiss her for failure to meet the law school’s academic standards. Petitioner requested reconsideration of her case, and submitted an additional statement oifering still further reasons for her substandard academic performance. The Committee accepted the new submission, but declined to reconsider its decision.

In this article 78 proceeding seeking a judgment directing respondent to reinstate her, petitioner alleges that the Committee’s decision to dismiss her was arbitrary and capricious and that her poor performance in her fourth semester was directly attributable to the irrational testing and grading procedures of three of her four professors. She challenged the grades she received in Constitutional Law II, Corporations, and Lawyers and Systems of Justice, alleging that her Constitutional Law exam was unfairly graded and that the professor in Lawyers and Systems of Justice was "a complete incompetent”. She also contends, inter alia, that the Committee failed to give sufficient weight to a variety of personal factors; and that she was dismissed in retaliation for complaining about her professors.

Petitioner also alleges that when she met with the Corporations professor to discuss her grade, the professor told her that she was given zero credit on an essay question worth 30% of the exam because she analyzed the problem under both Delaware law and New York law when only Delaware law was called for, that her answer did correctly analyze the problem under Delaware law and that she would have received full credit on this question had she only refrained from mentioning New York law. Notwithstanding petitioner’s claim that she only mentioned New York law to get extra credit, the professor allegedly insisted that petitioner gave two answers to the question, thereby indicating that she did not know which one was correct, and was therefore not entitled to any credit. Petitioner also alleges that the professor advised her that points were deducted from the Corporations exam because she had misused the term "oppressive conduct” and because the exam was written in the style of a first-year student.

The responding affidavits of respondent’s Dean of Academic Affairs and the Corporations professor asserted that the grading of the exam was purely a matter of academic discretion and that the exam grade was based upon the over-all quality of petitioner’s answer and not on any narrow, formalistic concerns.

Supreme Court dismissed the petition, concluding that petitioner had not demonstrated that her dismissal was arbitrary, capricious or ordered in bad faith. The Appellate Division rejected most of petitioner’s claims, but reversed Supreme Court and granted the petition to the extent of remanding the matter to respondent for further consideration of the Corporations grade to determine whether the grade given on the exam, including the disputed essay, was a rational exercise of discretion. Respondent appeals and petitioner cross-appeals by leave of that court, which also certified the question of whether its order was properly made.

II

On this appeal, respondent argues that the Appellate Division erred in concluding that petitioner’s allegations as to her Corporations grade state a judicially cognizable claim. We agree.

Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution’s judgment of a student’s academic performance (Matter of Olsson v Board of Higher Educ., 49 NY2d 408, 413; Tedeschi v Wagner Coll., 49 NY2d 652, 658; Matter of Soifair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d 287, revd on other grounds 44 NY2d 475; see also, Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 89-90). Unlike disciplinary actions taken against a student (Tedeschi v Wagner Coll., supra), institutional assessments of a student’s academic performance, whether in the form of particular grades received or actions taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators (Board of Curators v Horowitz, 435 US, at 90, supra). These determinations play a legitimate and important role in the academic setting since it is by determining that a student’s academic performance satisfies the standards set by the institution, and ultimately, by conferring a diploma upon a student who satisfies the institution’s course of study, that the institution, in effect, certifies to society that the student possesses the knowledge and skills required by the chosen discipline (Matter of Olsson v Board of Higher Educ., 49 NY2d, at 413, supra; see also, Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28, 38; Matter of Patti Ann H. v New York Med. Coll., 88 AD2d 296, 301, affd 58 NY2d 734). Thus, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations (Matter of Olsson v Board of Higher Educ., 49 NY2d, at 413, supra).

Accordingly, although we have emphasized that the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review (id., at 413-414; Morales v New York Univ., 83 AD2d 811, affd for reasons stated below 55 NY2d 822), that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute (id.; James v Board of Educ., 42 NY2d 357, 365). This standard has rarely been satisfied in the context of challenges to academic determinations because the courts have repeatedly refused to become involved in the pedagogical evaluation of academic performance. Thus, we have declined, in the absence of bad faith, to compel a university to award a diploma where a student alleged that he had failed a final comprehensive exam because of his reliance on the professor’s misstatement as to how the exam would be graded (Matter of Olsson v Board of Higher Educ., supra), or to compel a medical school to permit a student who had failed a number of courses to repeat a year (Matter of Patti Ann H. v New York Med. Coll., 88 AD2d 296, affd 58 NY2d 734, supra), and we have concluded that a college did not act arbitrarily in refusing to "round off” a senior’s grade so that she might graduate (Matter of McIntosh v Borough of Manhattan Community Coll., 55 NY2d 913, affg 78 AD2d 839; see also, Matter of Sofair v State Univ. of N. Y. Upstate Med. Center Coll. of Medicine, 54 AD2d 287, supra; Matter of Spencer v New York City Bd. of Higher Educ., 131 Misc 2d 847; Morpurgo v United States, 437 F Supp 1135; Connelly v University of Vt., 244 F Supp 156 [citing cases]).

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student’s challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities, is beyond the scope of judicial review (see, Regents of Univ. of Mich. v Ewing, 474 US 214, 225; Morpurgo v United States, 437 F Supp 1135, supra; Connelly v University of Vt., 244 F Supp 156, supra).

Petitioner’s allegations do not meet this standard; rather, they go to the heart of the professor’s substantive evaluation of the petitioner’s academic performance and as such, are beyond judicial review. The claim that this Corporations grade resulted in petitioner’s arbitrary dismissal from the law school was properly dismissed by Supreme Court.

We have considered the contentions raised on petitioner’s cross appeal and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be modified to dismiss the petition in its entirety, and, as so modified, affirmed, with costs. The certified question should not be answered as unnecessary.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order modified, with costs to appellant-respondent, by dismissing the petition and, as so modified, affirmed. Certified question not answered as unnecessary.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    Mertye P. Dietrick, Appellant, v Kemper Insurance Company (American Motorists Insurance Company), Respondent.
    Argued May 2,1990;
    decided June 14, 1990

      POINTS OF COUNSEL

      James G. Levins, III, for appellant.

      Mark B. Wheeler for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The Appellate Division ruled that defendant Kemper Insurance Company (Kemper) possessed a lien, under Workers’ Compensation Law §29 (1-a), against the full settlement recovery plaintiff Dietrick secured from the driver of the vehicle who hit and caused injury to her. The lien represents the amount of workers’ compensation payments from Kemper to Dietrick for permanent partial disability and serious facial disfigurement. We hold Kemper is not entitled to the lien because these benefits are deemed to be "in lieu of first party benefits” Dietrick would have otherwise been entitled to receive under the No-Fault Automobile Insurance Law (Workers’ Compensation Law § 29 [1-a]; see, Insurance Law art 51). We thus reverse and reinstate Supreme Court’s declaration of rights in favor of the injured plaintiff.

In October 1981, Dietrick suffered fractures of her collarbone, ribs and feet and a severe laceration of her forehead in an automobile accident that occurred in the course of her employment with Southland Corporation. The accident was caused by another motorist, Cernohorsky. Pursuant to a decision of the Workers’ Compensation Board, Kemper, South-land’s workers’ compensation carrier, paid benefits to Dietrick for medical expenses ($12,647.50), temporary total disability ($3,150.27), permanent partial disability ($11,460.75 [consisting of schedule loss awards]), and serious facial disfigurement ($5,000). Dietrick also sued Cernohorsky, seeking damages for negligence. Allstate Insurance Company, Cernohorsky’s automobile liability carrier, offered and Dietrick accepted the full policy limit of $10,000 in satisfaction of that lawsuit. Kemper asserted the lien, in dispute here, for $16,460.75.

Supreme Court granted Dietrick judgment declaring no lien and awarded Dietrick prejudgment interest on the settlement proceeds from the date the Allstate check was issued to both parties. That court held that Kemper’s payments were "in lieu of first party benefits” compensating plaintiff, in essence, for lost earnings. The Appellate Division reversed in1 favor of Kemper, holding these payments were more akin to compensation for Dietrick’s pain and suffering and were therefore claimable under the statutory lien. Thereafter, a final judgment was entered at Supreme Court. We granted leave to appeal and now reverse that judgment and the order of the Appellate Division brought up for review.

Under the No-Fault Automobile Insurance Law, "first party benefits” are payments made by an insurance carrier to reimburse an accident victim for "basic economic loss” due to personal injuries (Insurance Law § 5102 [b]). Where a victim has received a workers’ compensation award for a work-related automobile accident, the no-fault insurance carrier may deduct from the victim’s no-fault benefits the sum of the compensation award (Insurance Law § 5102 [b] [2]). The provision of these "first party benefits” under the No-Fault Law precludes an automobile accident victim from bringing an action in negligence to recover any damages unless the victim has suffered a "serious injury”, in which case Insurance Law § 5104 (a) allows the victim to commence a direct party action for "non-economic losses”, such as pain and suffering, and other nonquantifiable detriments (Insurance Law § 5102 [c], [d]). Although Workers’ Compensation Law §29 (1) grants a workers’ compensation carrier a lien on the proceeds of an employee’s direct party action for the amount of compensation awarded, Workers’ Compensation Law §29 (1-a) correspondingly denies that lien on the proceeds from any direct party action received pursuant to Insurance Law § 5104 (a), i.e., "for compensation and/or medical benefits paid which were in lieu of first party benefits which another insurer would have otherwise been obligated to pay under [the No-Fault Automobile Insurance Law].” (Emphasis added.)

Workers’ Compensation Law § 15 (3) provides that compensation for permanent partial disability shall be calculated on a percentage of an employee’s weekly wage. Workers’ Compensation Law § 15 (3) (t) (1) provides that where an employee has suffered serious facial or head disfigurement, the Workers’ Compensation Board may provide "proper and equitable compensation”. Although the Board need not find that earning capacity has been impaired in order to grant serious facial or head disfigurement awards (see, Matter of Florick v Broad Window Cleaning Co., 215 App Div 734, affd no opn 243 NY 576), this court has recognized that these injuries have a "tendency to impair the earning power of [their] victims,” either immediately or prospectively, and that "[lawmakers * * * must deal with general tendencies. The average and not the exceptional case determines the fitness of the remedy.” (Matter of Sweeting v American Knife Co., 226 NY 199, 201, affd 250 US 596, 601; see also, Matter of Marhoffer v Marhoffer, 220 NY 543, 547-548; Matter of Wilkosz v Symington Gould Corp., 14 AD2d 408, 410, affd no opn 14 NY2d 739.) Thus, awards for permanent partial disability or facial disfigurement may clearly include, and may therefore generally be deemed, compensation "in lieu of first party benefits” because such awards are directly related to plaintiffs basic economic loss, i.e., lost earnings, whether actual or presumed (Insurance Law § 5102 [a] [2]; [b]; see, Grello v Daszykowski, 58 AD2d 412, 416-417, n 4, revd on other grounds 44 NY2d 894).

This conclusion is fortified by the legislative history of Workers’ Compensation Law § 29 (1-a) (see, Bill Jacket, L 1978, ch 572), which demonstrates that the statute was conceived to correct the "harsh, unintended result” flowing from Matter of Granger v Urda (44 NY2d 91, 99). The court, interpreting Workers’ Compensation Law § 29 (1), held the workers’ compensation carrier’s lien on the settlement proceeds of an injured employee’s direct party action was inviolable even in the No-Fault Automobile Insurance Law context. The court also observed that corrective action by the Legislature was "advisable, if not imperative” (id., at 99), and the Legislature responded by enacting Workers’ Compensation Law § 29 (1-a). Prior to the amendment, the existing Workers’ Compensation Law § 29 (1) lien was intended to prevent a victim from receiving a double recovery for the same economic losses. However, as Granger demonstrated, when transplanted into the No-Fault Automobile Insurance Law context and strictly construed, Workers’ Compensation Law § 29 (1) subjected the victim to a double debit instead of preventing a double benefit.

A seriously injured automobile accident victim is allowed to plead for basic economic loss recovery as well as for noneconomic loss in a direct action, but the final judgment must be reduced by the court by the amount of basic economic loss, for which recovery in the direct action forum is forbidden (Insurance Law § 5104 [a], [c]). The final judgment then reflects the victim’s noneconomic damages only, such as pain and suffering or customarily unquantifiable detriments. The intended result is that the injured person is made "whole” by receipt of workers’ compensation and no-fault automobile insurance benefits representing economic losses, combined with the direct action noneconomic damages. If the injured person’s direct action settlement is offset by the workers’ compensation payments when the no-fault benefits have already been reduced by that amount, the lien produces the clearly unintended effect of rendering the victim uncompensated for at least part of the basic economic loss (see, Matter of Granger v Urda, 44 NY2d 91, 99, supra). The insurers get the victim coming and going.

Workers’ Compensation Law § 29 (1-a) was passed to bridge the crevice between the No-Fault Law and the Workers’ Compensation Law into which the victim unintentionally slipped. Because workers’ compensation benefits and no-fault first-party benefits are intended essentially to cover the same types of losses — those that are economic in nature — and the Legislature has attempted to integrate and fit not entirely compatible statutes together through Workers’ Compensation Law § 29 (1-a), it is the fairer and preferred statutory construction to treat both types of benefits as categorically similar for purposes of the applicable lien provision (see, Fox v Atlantic Mut. Ins. Co., 132 AD2d 17, 23). The Legislature was aware that exact harmony between the statutes was impossible in that many workers’ compensation awards do not fall neatly or literally into the definition of first-party benefits under Insurance Law § 5102 (b). If it did not view workers’ compensation benefits as sufficiently similar to first-party benefits, it could have made the effort to distinguish between the different types of workers’ compensation awards and to list those which fell within the definition of first-party benefits and those that did not for denial of lien purposes. The Legislature did not do so. Surely under these circumstances, if there is any ambiguity or room for reasonably held different views, the remedial nature of Workers’ Compensation Law § 29 (1-a) favors the injured party (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 92, 321, at 176, 489).

The broad social policy and scheme underlying the Workers’ Compensation Law also supports the conclusion that workers’ compensation awards for permanent partial disability and serious facial disfigurement should be deemed payments in lieu of first-party benefits in these circumstances. The central thrust of the Workers’ Compensation Law is to reimburse an employee for lost wages. The courts of this State have consistently denied an award, such as for permanent partial disability or facial disfigurement, when it was granted in addition to an award for permanent total disability. Our court and other courts have taken the view that the same theory and relationship between compensation and loss of earnings or earning capacity underlie all types of workers’ compensation awards, and to allow such additional awards might improperly provide a double recovery for the same disability elements, in effect reflecting recovery for noneconomic damages such as pain and suffering which would contravene the workers’ compensation scheme (see, e.g., Matter of Marhoffer v Marhoffer, 220 NY 543, 547-548, supra; Matter of Wilkosz v Symington Gould Corp., 14 AD2d 408, 410, affd no opn 14 NY2d 739, supra; Matter of Clark v Hayes, 207 App Div 560, affd no opn 238 NY 553).

We agree that injured persons should not receive double recoveries for basic economic losses, but that unintended and undesirable windfall is circumscribed by our holding. Because we conclude awards for permanent partial disability and serious facial disfigurement fall within the definition of "basic economic loss”, a victim is ultimately precluded from recovering such losses in a direct action under Insurance Law § 5104 (a). That principle is not undermined by denying a lien against the undifferentiated settlement proceeds in this case.

In sum, we hold Kemper has no lien arising from its payments for permanent partial disability and serious facial disfigurement against plaintiff’s direct action settlement. To hold otherwise would be contrary to the reasonable interlacing of the relevant statutes and to the general policies underlying the workers’ compensation scheme reflected in our precedents.

Supreme Court also correctly awarded plaintiff interest from the date the Allstate check for the direct party settlement proceeds was issued and Kemper asserted the lien, regardless of whether interest was demanded in the complaint (CPLR 5001; Flamm v Noble, 296 NY 262, 268).

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs, and the original judgment of Supreme Court reinstated.

Chief Judge Wachtler and Judges Simons and Hancock, Jr. (dissenting). We would affirm for the reasons stated in the opinion of Justice Samuel Green at the Appellate Division (145 AD2d 8). We would only add that the Legislature, in

drafting Workers’ Compensation Law § 29 (1-a) to provide that workers’ compensation insurance carriers shall not have liens on payments made in lieu of first-party benefits, clearly contemplated that certain payments made by these carriers would not constitute first-party benefits. In fact, we can conceive of no other reason for the inclusion of this language in the statute.

Judges Kaye, Alexander and Titone concur with Judge Bellacosa; Chief Judge Wachtler and Judges Simons and Hancock, Jr., dissent and vote to affirm in a memorandum.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and judgment of Supreme Court, Steuben County, entered May 17, 1988 reinstated.