AMSA Advocacy Guide Sample Cases

Case #1: A fourth-year medical student takes a leave of absence to work out personal problems. On her own initiative, she undergoes psychiatric evaluation and begins a course of treatment. When she returns to school the following semester, she finds that she has been dismissed based upon performance in the clerkship she finished prior to her leave of absence. The student appeals the decision, and the promotion committee requests that she brings her psychiatric evaluations to her appeal. At the appeal, the dismissal is upheld because the promotions committee determines the personality disorder diagnosed by her psychiatrist is "unbefitting a physician."

In this case the premise is academic in that the student had poor academic performance in one of her clerkships. Since it is academic in nature, all that is required by federal law is that she be notified, which she was. The school, undoubtedly recognizing her liberty interest in the dismissal, allowed her the opportunity to appeal the decision, an option not always open. Unfortunately, she submitted her psychiatric evaluation. By doing so she changed the thrust of the hearing from purely academic to one of competence and mental stability, and as a result, she lost. She may have had a better chance had she not submitted her psychiatric evaluation and kept the promotions committee's focus on her academic performance. Remember you, as a student, always have the right to refuse to undergo or submit a psychiatric evaluation if you feel it may be used against you. This is a really unfortunate situation. The next step for her, should she choose to appeal further, is to find legal representation and take it to the court of law.

Case #2: A school's academic bulletin specifically states that students finishing the second year will be required to take Step I of the USMLE, but that there will be no requirements to pass that exam. Two months into their third year clerkships, five students are notified that they have been suspended from further progress in school because they failed the boards and that they will not be reinstated until they pass Step I the following June. Though 11 students failed the Boards, only five were singled out for suspension. Upon notification of their suspension, the students were allowed one appeal, to be held the next working day.

This case brings up many issues. As in Case #1, it is academic in nature and therefore does not require any formal hearing (unless described in the due process portion of the schools catalog and bulletin). The only requirement is notification. However, because the dismissals imply that the students are academically unfit for the study of medicine, maximal due process procedures should be invoked to protect their liberty interests. The students were offered the opportunity for appeal; however, the extremely short notice is unreasonable if one is to expect a fair opportunity to prepare a case. This demonstrates that there are no mandatory guidelines for notification or for time between notification and hearing. Although there is little time to prepare an eloquent response to the charges against them, the students will have to do the best they can under these circumstances. Things they can do include reading their files, studying the school catalog and academic bulletin, and requesting the rationale distinguishing them from the other six students who failed Step I.

Interestingly, the school's actions violate a written policy, specifically that there is no requirement to pass Step I of the USMLE. Further, the policy was violated irregularly (only five out of 11 students failed). This appears to be a case in which the ruling could be overturned in court because it was in capricious and arbitrary disregard for the school's standing policy.

Case #3: A third-year student comes to AMSA with a complaint that she has been dismissed unjustly from her school. After passing the first two years of school and scoring well on Step I of the USMLE, she failed three of her third year rotations, which is a criterion for dismissal at that school. She argues that she was treated unfairly in three regards. First, she disputes the grounds upon which she was given a failing grade in one rotation. She had passed the rotation based upon her cumulative score from ward performance, written and oral exams; however, the clerkship director failed her, stating "Her ward performance was not satisfactory to pass the course" even though the course description mentions only the cumulative score as a criterion for satisfactory completion. Second, she was unaware of her second failure, so she embarked upon the third rotation without any knowledge that her career was on the line. Third, though she admits she failed the tests given in the third rotation, she states that the requirements for passing the rotation were never described in writing to the students. She also maintains that throughout her appeals process, she was treated unfairly because of her race and assertive personality.

This case is complicated and different from the first two because it combines an academic dismissal with a non-academic accusation of racism. The student in this case handled herself well in that she defined the situation, learned the rules regarding evaluation as well as promotions. Her strengths in this case include the fact that she was not informed of her failing the second rotation and the fact that her cumulative score was indeed passing. Her only chance for winning is to find fault in her school's procedure (i.e. procedural due process), for if the school breaks any of its own written guidelines, she may be reinstated.

It would be difficult to argue against her falling mark in her second clerkship because it is a substantive academic issue. Traditionally, the courts have recognized that they are not learned in medicine and therefore will not address the issue of whether a student is academically deficient.

The student's accusation regarding unfair treatment on the basis of race and personality is interesting because it introduces the idea of bad faith and unfair treatment. The key to winning a case on these grounds is finding written documentation that an evaluator disliked the student or harbored any ill will toward her. It is possible that she could win reinstatement on the basis of discrimination; however, it is extremely difficult to prove such discrimination has occurred.

AMSA's role in this case is limited. There is little we can do but provide support and additional resources for the student; again, we do not have the ability to investigate her accusations of discrimination further, and unless other students from her school brought up similar complaints, we cannot assume that it is an institutional problem.

Case #4: A second-year student calls AMSA and after unsuccessfully appealing a dismissal notice from his school. His academic performance was exemplary and he had recently passed Step 1 with flying colors. However, several professors and other students had accused him of "unprofessional conduct". The student is vague to AMSA about what the unprofessional conduct entails; later he reveals the conduct includes lying on numerous occasions regarding excuses for missing exams and lying to his small groups. He claims that the school denied him of due process and that he was not given any notice for the hearings, and was forced to undergo psychiatric evaluation and denied legal counsel throughout the disciplinary process.

This case is different from the preceding ones in that it is clearly nonacademic in nature. The student in question has no academic difficulties, and the allegations against him are for unprofessional conduct-a nonacademic conduct violation.

There are several important issues here. First, it must be explained clearly to the student that AMSA is in no position to investigate the allegations of conduct. There is no way the organization has resources or personnel to question all the witnesses; as a result, AMSA cannot take a stance in his case.

AMSA can, however, express concern about the due process questions he is raising. Once again, we cannot investigate his claims about being denied due process. They are very serious allegations, though, and AMSA can raise concerns and urge that investigations into due process be undertaken.

In addition, it is appropriate to put the student in touch with others who may assist him, including other advocacy groups, legal counsel, and investigative organizations. At this juncture, the student's options are limited to legal appeal, and the student should be in touch with legal counsel who can assist him.

Case #5: A fourth-year student has received marginal passes in two of her clinical clerkships, which she has made up promptly through clear pass marks in make-up exams. She and her lover are seen holding hands outside the medical center by the clerkship director. During the clerkship evaluation, she has learned that she has passed the written exam, but has received an overall fail in the clerkship, for inappropriate conduct on the wards. When she persists in attempting to learn what offense she had allegedly committed, the clerkship director vaguely responds by waving his hands and stating, "You know what I'm talking about." The Committee on Student Evaluation then notifies her about a hearing for dismissal. The student is a well-known bisexual woman at a private school with a non-discrimination policy that includes sexual orientation.

As in the second case, while this case is academic in nature, the school has afforded the student a formal hearing for dismissal. However, from the facts given, the student does not have enough information to adequately prepare for the hearing. Thus, it is important to discover exactly what constituted inappropriate conduct on the ward that is supposedly the basis for her possible dismissal. In other words, is the "inappropriate conduct" based on the fact that the student is a well-known bisexual, or for her actual conduct of holding hands on the ward with her lover, a combination of the two, or neither?

If the student is subject to dismissal for being an admitted bisexual, then such action would seem to violate the school's own policy against discrimination based on sexual orientation. As in the second case above, if the student were dismissed, there would be a strong argument for a court to overturn such a decision as arbitrary and capricious.

If the basis for the potential dismissal was for holding hands outside the medical center with her lover, then the student should try to find out whether the school has a policy or procedure for dismissing students for such conduct regardless of sexual orientation. If the policy applies only to such conduct by homosexuals, then the student, as above, could challenge the schools decision as in violation of its own policies.

If the student is ultimately dismissed from school for being bisexual or for homosexual conduct, then the student could challenge the dismissal in court as denying her equal protection under the law, provided that the private school is supported by state or federal funds. The student may also have a claim under the first amendment. However, it should be noted that a regulation would not always be held unconstitutional just because it discriminates against homosexuals or homosexual conduct.

The equal protection guarantees of the 5th and 14th amendments state in essence that all persons who are similarly situated should be treated alike. If a law or regulation burdens all persons equally when they exercise a specific right, then the courts will test the law under the due process clause. If, however, the law distinguishes between who may and who may not exercise a right, then judicial review of the law falls under the equal protection guarantee because the issue now becomes whether the distinction between these persons is legitimate.

The general rule is that a law or regulation is presumed to be valid and will be upheld against an equal protection challenge if the classification drawn by the regulation or law is rationally related to legitimate state or governmental interest. However, when certain groups of person are classified or separated out for specific government benefits or burdens, courts will employ a heightened or strict scrutiny of the classifications. The U.S. Supreme Court has held that additional or heightened scrutiny is required when the statute or regulation classifies by race, alien status, national origin, gender and illegitimacy.

Homosexuality or homosexual conduct has never been found by the Supreme Court to warrant this heightened scrutiny. Thus, a regulation that distinguishes between homosexuals and others must only be rationally related to a legitimate governmental purpose. If the school shows that the regulation that distinguishes between homosexuals and others is rationally related to a legitimate governmental purpose, then the regulation will withstand an equal protection challenge.

It should be noted that if the school policy or action is enforced as only against women, the student could also challenge the dismissal as a violation of the Education Amendments of 1972, which prohibit sexual discrimination educational institutions receiving federal funds.

Advocacy Guide