Legal Watch: Making the Grade?

By Donna Euben

Every few years the headlines proclaim that computers will soon replace professors in grading papers. In practice, however, most professors still rely on the red pen, not on computer programs such as the Intelligent Essay Assessor or the Project Essay Grader. Moreover, grading continues to fall within the purview of professorial judgment, because a faculty member who is expert in a particular field of study is best situated to assess student work in that field. Nevertheless, from time to time legal challenges threaten a professor’s academic freedom to assign grades to an individual student. The most recent threat arose at California University of Pennsylvania.

Robert A. Brown is a tenured professor at that public institution, where he has taught for twenty-eight years. In spring 1994 he failed a graduate student who, he alleges, attended only three of fifteen classes in a practicum education course. University president Angelo Armenti, Jr., allegedly ordered Brown to change the student’s F to an incomplete, which Brown refused to do. Soon afterward, Brown claims that he was removed from teaching the practicum course.

An arbitrator, however, later ordered Brown reinstated. Brown eventually sued the university, arguing that Armenti violated his freedom of speech and retaliated against him for refusing to change the student’s grade. The district court declined to grant the university’s motion to dismiss the suit, Brown v. Armenti, and the university appealed.

In April 2001 the federal appellate court issued a troubling decision, concluding that a "public university professor does not have a First Amendment right to expression via the school’s grade assignment procedures." It opined: "Because grading is pedagogic, the assignment of the grade is subsumed under the university’s freedom to determine how a course is to be taught."

In 1986 another federal appellate court had reached a different conclusion, finding that an individual professor has the academic freedom not to be compelled to change a student’s grade under the First Amendment. In that case, Parate v. Isibor, the court found that Tennessee State University had violated the First Amendment rights of Natthu Parate, who taught civil engineering, when it forced him to sign a memorandum changing a student’s grade from a B to an A. The court found that the "assignment of a letter grade . . . is a symbolic communication intended to send a specific message to the student . . . [and] is entitled to some measure of First Amendment protection." The court explained that the "message communicated by the letter grade ‘A’ is virtually indistinguishable from the message communicated by a formal written evaluation indicating ‘excellent work.’ Both communicative acts represent symbols that transmit a unique message." Accordingly, "the individual professor may not be compelled, by university officials, to change a grade that the professor previously assigned to the student."

In so ruling, however, the Parate court distinguished between when a professor’s First Amendment rights are violated—when an administrator forces a professor to change a student’s grade—and when a professor’s free speech rights are not implicated—when an administrator changes the student’s grade on his or her own.

How universities—administrators and faculty members—allocate grading authority within their institutions is critical. AAUP policy provides that the assessment of student academic performance, including the assignment of particular grades, is a faculty right that flows from a "teacher’s freedom in the classroom," which is assured by the 1940 Statement of Principles on Academic Freedom and Tenure. The AAUP statement The Assignment of Course Grades and Student Appeals provides more specifically that administrators should not "substitute their judgment for that of the faculty concerning the assignment of a grade. The review of a student complaint over a grade should be by faculty, under procedures adopted by faculty, and any resulting change in a grade should be by faculty authorization."

The Brown court declared that it was promoting "a more realistic view of the university-professor relationship." How is it "realistic" for administrators to assume responsibility for evaluating students’ in-class academic performance? As Justice Powell of the U.S. Supreme Court recognized in his concurring opinion in Board of Curators of the University of Missouri v. Horowitz, which upheld the dismissal of a medical student from graduate school, "University faculty must have the widest range of discretion in making judgments as to the academic performance of students."

Donna Euben is AAUP counsel.

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