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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richards v. University of Alaska (3/18/2016) sp-7090

Richards v. University of Alaska (3/18/2016) sp-7090

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



QWYNTEN  RICHARDS,                                               )  

                                                                 )          Supreme  Court  No.  S-15245  

                      Appellant,                                 )  

                                                                                                                                            

                                                                 )          Superior Court No. 4FA-10-01246 CI  

           v.                                                    )  

                                                                                                 

                                                                 )          O P I N I O N  

                                 

UNIVERSITY OF ALASKA,                                            )  

                                                                                                                  

                                                                 )          No. 7090 - March 18, 2016  

                      Appellee.                                  )  

                                                                  

_______________________________ )  



                                             

                                                                                                           

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                       

                      Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.  



                                                                                                    

                      Appearances:              Qwynten           Richards,          pro      se,     Fairbanks,  

                                                                                                            

                      Appellant.           Susan         Orlansky,           Reeves          Amodio           LLC,  

                                                

                      Anchorage, for Appellee.  



                                                                                                            

                      Before:  Stowers, Chief Justice, Fabe, Maassen, and Bolger,  

                                                                          

                      Justices.  [Winfree, Justice, not participating.]  



                                            

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                  

                      After  a  two-day  hearing,  the  University  of  Alaska  Fairbanks  (UAF)  



                                                                                                                               

dismissed Qwynten Richards from her Ph.D. program for failing to respond to feedback  



                                                                                                                               

from her professors in a variety of settings.  An Appeals Committee at UAF affirmed  



                                                                                                                              

Richards's dismissal from the program because it concluded that there were sufficient  



                                                                                                                                           

negative reviews from her professors to support her dismissal and that she had failed to  



                                                                                                                                    

satisfactorily complete a "remediation" assignment given to her after the faculty found  


----------------------- Page 2-----------------------

                                                                                                                           

she plagiarized parts of a paper.  Richards appealed to the superior court.  The court  



                                                                                                                    

affirmed, holding that UAF was reasonable in characterizing her dismissal as academic,  



                                                                                                                                    

that itsubstantially compliedwith its procedures, and that Richards received due process.  



                                                                                                                              

It also awarded UAF 10% of its claimed attorney's fees.   Richards appeals, and we  



affirm.  



                                 

II.       FACTS AND PROCEEDINGS  



                                                                

          A.        Facts And Administrative Proceedings  



                                                                                                                              

                    Qwynten  Richards  began  attending  UAF  for  a  Ph.D.  program  in  



                                                                                                                              

Clinical-Community Psychology in the fall of 2007.   In her year-end review for the  



                                                                                                                             

2007-2008 academic year, Richards received a satisfactory review.   The review was  



                                                                                                                             

generally positive, but it also noted a few areas of concern, namely that Richards was  



                                                                                                                             

quiet in class but this was improving, that she was too critical of the Diagnostic and  



                                                                                                                     

Statistical Manual (DSM), and that her instructors noted that she had difficulty accepting  



feedback.  



                                                                                                                              

                    Immediately following this review, Dr. Christiane Brems, a professor for  



                                                                                                                                

one of Richards's courses, brought a possible incident of plagiarism to the attention of  



                                                                                                                     

the co-teacher of the course, Dr. James Allen. Dr. Allen alerted Don Foley, the Associate  



                                                                                                                             

Vice Chancellor of Student Life and Director of Judicial Services, to the incident, and  



                                                                                                                          

Dr. Allen requested that he, Dr. Brems, Foley, and Richards meet to discuss the issue.  



                                                                                                                            

Drs. Allen and Brems were also the Directors of Clinical Training for the program. They  



                                                                                                                           

notified Richards and directed her to attend a meeting to discuss the allegations.  They  



                                                                                                                             

informed  Richards of the specific paper  in question:                               the integrated  paper  she had  



                                                                                                                                

submitted in fulfillment of the course requirements of Psychology 601, a seminar in  



                                                                                                                             

"Clinical/Community/Cross-Cultural  Integration."                                They  also  notified  her  of  the  



                                                                                                                               

provisions of the University of Alaska Student Code of Conduct ("Student Code of  



                                                                                                      

Conduct") prohibiting plagiarism.  Richards denied the plagiarism allegation.  



                                                               -2-                                                        7090
  


----------------------- Page 3-----------------------

                                                                                                                       

          Dr. Brems, Dr. Allen, Foley, and Richards met on May 28, 2008. At that meeting  



                                                                                                                                

Richards was "advised sections of the [integration] paper [she] submitted appeared to  



                                                                                                                              

have been plagiarized."  She was "given the opportunity to present [her] views on the  



                                                                                                                             

situation." After the meeting Richards emailed Dr. Allen, Dr. Brems, and Foley and said  



                                                                                                               

that she was glad she had been given the chance to explain that she had satisfactorily  



                                             

cited all of her sources in the paper.  



                                                                                                                    

                    On June 19 the core faculty of Richards's program met in an executive  



                                                                                                                       

session  without  Richards  to  discuss  the  situation.                             At  this  meeting  the  faculty  



                                                                                                                      

"unanimously concluded  [that Richards's] writing  constituted plagiarism," defining  



                                                                                                            

plagiarism as "presenting as [one's] own the ideas or works of another person without  



                                                                                                                             

proper acknowledgment of sources."  They gave Richards a new annual review that  



                                                                                                                              

changed her performance to unsatisfactory, stated that she would receive an F for the  



                                                                                                                                

paper and a grade of Not Passing (NP) for the course, and that she would be required to  



                                                                                                                            

write a remediation paper on "how and why [her] Integration paper was judged to have  



                                                                                                                             

been plagiarized."  The faculty decision also noted that she "should know that [she has]  



                                                                                                                             

the right to appeal academic decisions" and that she should "refer to the Academics and  



                                                                                                                     

Regulations, Appeal of Academic Decisions section of the 2008-2009 UAF catalog."  



                                                                                                                         

Richards did not appeal this decision.   The updated review also warned that "[a]ny  



                                                                                                                               

breach of these expectations can result in non-continuation in the Ph.D. Program in  



                                 

Clinical-Community Psychology."  



                                                                                          

                    Richards submitted her remediation paper for faculty review.  In January  



2009 Dr. William Connor, UAF Director of Clinical Training, and Dr. Brems notified  



                                                                                                                              

Richards that the core Ph.D. faculty had concluded that her remediation paper did not  



                                                                                                                                

meet the assignment requirements because it did not demonstrate "an understanding of  



                                                                                                                               

how and why [the] paper was judged to have been plagiarized," and it "did not show an  



                                                                                                                    

acknowledgment  that  there  is  an  agreed  upon  standard  with  regard  to  crediting  



                                                               -3-                                                        7090
  


----------------------- Page 4-----------------------

authorship that has been established by and used in the profession of psychology."                                                                                                                                                                                                                                                                                                                                                                                                  



While the document did not contain appeal language, the faculty did conduct an informal                                                                                                                                                                                                                                                                                                                                             



reconsideration of their decision at Richards's request.                                                                                                                                                                                                   



                                                                        Richards's inability to accept feedback was not limited to problems with                                                                                                                                                                                                                                                                                                         



her remediation paper. Many other professors noted these issues in a variety of settings.                                                                                                                                                                                                                                                                                                                                                                                            



For instance, the professor for whom Richards served as a research assistant asked her                                                                                                                                                                                                                                                                                                                                                                          



to resign.  The professor stated that Richards's "future success is in part contingent on                                                                                                                                                                                                                                                                        



 [her] ability to accept and be responsive to feedback" and that Richards's "inability to   



do so contributed to [the professor's] decision to ask her to resign."                                                                                                                                                                                                                                                           



                                                                        Richards also engaged in a clinical practicum with Dr. Michael Hopper.                                                                                                                                                                                                                                                                                                                                       



Dr. Hopper noted that Richards was "quick to question and doubt the judgement and                                                                                                                                                                                                                                                                                                                                                                            



experience   of   others."     At   her   final   review   in   May   2009,   Dr.   Hopper   wrote   that  



Richards's  



                                                                        inability to accept constructive criticismin supervision and to                                                                                                                                                                                                                                                         

                                                                        explore personal issues . . . led to serious impasses with this                                                                                                                                                                                                                                               

                                                                         supervisor and to a suspension of her right to practice briefly                                                                                                                                                                                                                              

                                                                        in the clinic.                                                          In the end I found supervision to have been                                                                                                                                                                                   

                                                                        extremely difficult with [Richards] as she does not seem to                                                                                                                                                                                                                                                           

                                                                        understand the role of a trainee and insists on a position of                                                                                                                                                                                                                                                         

                                                                        equality  and   personal   competence   which   she   has   not   yet  

                                                                        earned.  



He concluded that although her work with clients was "commendable," Richards "did  



not earn [his] confidence in her abilities and [he] do[es not] recommend her at this point                                                                                                                                                                                                                                                                                                                                                            



for continued clinical training until she is able to resolve the issues that have plagued her                                                                                                                                                                                                                                                                                                                                                                    

training to this point."                                                                                                1  



                                    1                                   The superior court found that, given the tone of the comments, Dr. Hopper                                                                                                                                                                                                                                                                                         



meant to write "do not recommend" rather than "do recommend."                                                                                                                                                                                                                                                                                                              Richards does not                                                                   

dispute this finding on appeal.                                                                                            



                                                                                                                                                                                                                                  -4-                                                                                                                                                                                                                    7090
  


----------------------- Page 5-----------------------

                                                                                                                                  

                     In April, just prior to Dr. Hopper's review, the full Ph.D. faculty met at its  



                                                                                                                        

annual student review meeting and unanimously recommended not continuing Richards  



                                                                                                                                 

in the program.  On June 11 the faculty sent Richards a letter stating that "[d]ue to the  



                                                                                                                           

fact[] that [she had] received two years of negative evaluations, and that the core faculty  



                                                                                                                                  

in  the  Ph.D.  program  ha[d]  lost  faith  in  [her]  ability  to  receive  and  respond  to  



                                                                                                                         

professional   feedback   in   academic,   clinical   and   research   settings,   the   faculty  



                                                                                                                                

recommends that [she] resign" from the Ph.D. program.  The faculty informed her that  



                                                                                                                                 

she had "three weeks to either respond to this recommendation or resign" and that if she  



                                                                                                                               

chose  not  to  resign,  "the  next  steps  outlined  in  the  'Student  Impairment  and  



                                                                                                                              

Incompetence   Policy'   as   listed   in   the   current   Ph.D.   Student   Handbook   [the  



                                                                                                                                 

'Handbook'] . . . [would] be followed." Specifically, the faculty informed her that if she  



                                                                                                                      

chose not to resign, the Governance Committee would hold a hearing to determine  



                                                   

whether to dismiss her from the program.  



                                                                                                                        

                     Richards chose not to resign. Instead, she submitted voluminous materials  



                                                                                                                          

to the Governance Committee detailing high marks and documenting favorable reviews  



                                                                                                                    

from her professors.  The faculty transmitted a memo to the Governance Committee  



                                                                                                                       

outlining the steps it had taken and its reasons for recommending Richards's dismissal.  



                                                                                                                           

The Governance Committee held a hearing on September 3-4.  Richards did not present  



                                                                                                                         

any witnesses, but she did testify on both days of the hearing.  Richards did not exercise  



                                                                                                                            

her option to have an attorney present, but she did have a student representative attend  



         

with her.  



                                                                                                                                

                     On  September  17,  UAF  sent  Richards  a  letter  notifying  her  that  the  



                                                                                                                              

Governance Committee had decided to dismiss her from the Ph.D. program.  The letter  



                                                                                                                  

cited Richards'stwosemesters ofnot-in-good-standing status, her failuretosatisfactorily  



                                                                                                                                   

complete the remediation assignment, and her failure to "accept or act upon feedback in  



                                                                                                                              

clinical and research settings." The letter informed Richards that she had "10 days from  



                                                                -5-                                                          7090
  


----------------------- Page 6-----------------------

the   receipt   of   this   letter   to   appeal   this   decision   in   writing   to   UAF   Provost   Susan  



Henrichs."  



                                                        Richards first informally appealed the decision in a meeting on October 6                                                                                                                                                                                                                                   



with Lawrence Duffy (the Interim Dean), Laura Bender (the Director of the Graduate                                                                                                                                                                                                                                                



 School), and Dr. Abel Bult-Ito (a professor who had become an advocate for Richards).                                                                                                                                                                                                                                        



The Dean noted that Richards's detailed appeal                                                                                                                                                          



                                                        mainly addresse[d] [her] disagreement with the professionals                                                                                                                                       

                                                        who worked with [her] and gave [her] grades . . . .                                                                                                                                                        In this   

                                                        informal appeal, [his] decision remain[ed] unchanged in that                                                                                                                                                                              

                                                         [he placed] greater weight on the professional opinion of the                                                                                                                                                                               

                                                        faculty than                                         on   [Richards's] opinion                                                                                  of how the program                                  

                                                        should evaluate students.                                          



He concluded that the "decision remain[ed] unchanged," and he advised Richards of her                                                                                                                                                                                                                                                                       



right to appeal to UAF Provost Henrichs.                                                                                            



                                                        Richards formally appealed the decision to the Provost on October 31. The                                                                                                                                                                                                                        



Appeals Committee met on December 3 and issued a decision on December 10.                                                                                                                                                                                                                                                                              The  



decision stated that the Appeals Committee had "reviewed all of the documentation                                                                                                                                                                                                                         



 submitted[] and engaged in lengthy deliberation."                                                                                                                                                                 The Appeals Committee dismissed                                                                             

                                                                                                                                                                                                                                                                                                         2        It determined  

Richards's appeal concerning her termination from the Ph.D. program.                                                                                                                                                                                                                                                      



that the faculty was within its rights to make the decision to dismiss her from the Ph.D.  

                                                                                                                                                                                                                                                                                                                                                 



program, that feedback was vital in psychology, and that even if a student disagreed with  

                                                                                                                                                                                                                                                                                                                                                       



feedback "it is critical in a programrequiring professional licensure that students comply  

                                                                                                                                                                                                                                                                                                                                           



with professional requests and advice."  But the Appeals Committee determined that  

                                                                                                                                                                                                                                                                                                                                                         



Richards could apply to other programs in the graduate school through the normal  

                                                                                                                                                                                                                                                                                                                                          



application process.  Richards appealed this decision to the superior court.  

                                                                                                                                                                                                                                                                                              



                            2                           The Appeals Committee used the term "dismissed" in the sense that it                                                                                                                                                                                                                  



denied or rejected Richards's appellate arguments, thereby upholding the Governance   

Committee's decision to dismiss her from the Ph.D. program.                                                                                                                                                                



                                                                                                                                                                               -6-                                                                                                                                                                   7090
  


----------------------- Page 7-----------------------

              B.            Superior Court Proceedings          



                            The superior court affirmed Richards's dismissal from the Ph.D. program                                                                 



at UAF.              First, it concluded                       that it was not arbitrary, unreasonable, or an abuse of                                                          



discretion   for   UAF   to   characterize   Richards's   dismissal   as   academic,   rather   than  



                          3  

disciplinary.                                                                                                                                                                     

                              It further noted that the reasons Richards had been dismissed - failure to  



                                                                                                                                                                                 

accept feedback from her professors throughout her time in the program, particularly as  



                                                                                                                                                                               

a  research  assistant  and  in  her  clinical  practicum,  and  failure  to  demonstrate  an  



                                                                                                                                                                            

understanding of why her paper constituted plagiarism-were academic reasons in light  



                                                                                                                                                                  

of Nickerson v. University of Alaska Anchorage, where Nickerson's academic dismissal  

                                                                                                                                                         4     Second,  it  

                                                                                                                                                                                  

was  for  "hostile,  abrasive,  intimidating,  and  unprofessional  behavior." 



concluded  that  UAF  substantially  complied  with  its  policies  relating  to  academic  

                                                                                                                                                                 



violations as laid out in the Handbook. Finally, it held that Richards received ample due  

                                                                                                                                                                              



process because UAF provided her with notice, multiple opportunities to be heard,  

                                                                                                                                                                        



careful deliberation, and independent review.  

                                                                                



                            UAF  asked  for  50%  of  its  attorney's  fees,  roughly  $25,000,  because  

                                                                                                                                                                    



Richards's "long and complex briefing" resulted in substantial extra expenses. Richards  

                                                                                                                                                                   



argued that requiring her to pay any attorney's fees was improper because she was a  

                                                                                                                                                                                   



constitutional litigant and  did  not have a monetary  interest in  the case.                                                                                   The  court  

                                                                                                                                                                          



concluded that Richards was not a constitutional claimant and determined that an award  

                                                                                                                                                                         



of   20%   of   UAF's   fees   would   be   appropriate   under   Alaska   Rule   of   Civil  

                                                                                                                                                                        



Procedure 82(b)(2).  However, the court also worried about chilling future claims and  

                                                                           



therefore awarded only 10% of UAF's claimed attorney's fees.  

                                                                                                                           



              3             The university procedures and the level of due process that our precedent                                                            



requires differ for academic proceedings and disciplinary proceedings.                                                                                See Nickerson   

v.   Univ. of Alaska Anchorage                                , 975 P.2d 46, 52-54 (Alaska 1999).                           



              4             Id . at 52.  

                                         



                                                                                        -7-                                                                                7090
  


----------------------- Page 8-----------------------

                    Richards   appeals.     In   this   appeal,   we   address   three   central   issues:   



(1)  whether  the   appeal  was   academic   or   disciplinary;   (2)  whether  UAF   substantially  



complied  with  its  procedures  and  whether  evidence  in  the  record  supported  its  decision;  



and  (3)  whether  Richards  received  due  process.   We  will  also  discuss  the  superior  court's  



award  of  attorney's  fees.  



III.      STANDARD  OF  REVIEW  



                    "In   administrative   appeals,   we   directly   review   the   agency   action   in  



               5  

question."   We  review  questions  of  fact  for  substantial  evidence,  which  is  "such  relevant  



                                                                                                                      6  

evidence  as  a  reasonable  mind  might  accept  as  adequate  to  support  a  conclusion."   "We  



need   only   determine   whether  such  evidence   exists,   and   do   not   choose   between  

competing  inferences."7  



                    We   will   not   override   a   school's   academic   decision   "unless   it   is   such   a  



substantial departure from accepted academic norms as  to demonstrate  that the person  



                                                                                                            8  

or  committee  responsible  did  not  actually  exercise  professional  judgment."   We  review  



whether   the   school   complied   with   its   policies   under   the   "arbitrary,   unreasonable,  

or  .  .  .  abuse  of  discretion"  standard.9  

                                                       Questions  of  law  that  require  agency  expertise  are  



          5        Brown  v.  Pers.  Bd. for   City  of  Kenai,   327  P.3d   871,   874   (Alaska  2014)  



(quoting  Grimmett  v.   Univ.  of  Alaska ,  303  P.3d  482,  487  (Alaska  2013)).  



          6        Id.  (quoting  Grimmett,  303  P.3d  at  487).  



          7        Handley  v.  State,  Dep't  of  Revenue,  838  P.2d   1231,   1233  (Alaska   1992).  



          8        Bruner v. Petersen, 944 P.2d 43, 48 (Alaska 1997) (quoting Regents of the  

                                                                                                                           

Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)).  

                                                                  



          9        Nickerson, 975 P.2d at 50 n.1 (quoting Szejner v. Univ. of Alaska , 944 P.2d  

                                                                                                                          

481, 484 n.2 (Alaska 1997)).  

                                 



                                                             -8-                                                        7090
  


----------------------- Page 9-----------------------

reviewed under the "reasonable basis" standard.                           10  



                                                                                                                       

                    Whether"theUniversityprocedures comported with dueprocess involve[s]  

                                                                           11  Thus, we review this question using  

                                                                                                                                       

                                                            

a question of law not requiring agency expertise." 

our independent judgment.12  

                           



                    We review an attorney's fees award for an abuse of discretion and will  

                                                                                                                               



reverse when "the award is arbitrary, capricious, manifestly unreasonable, or improperly  

                                                                                                                     

motivated."13  



IV.       DISCUSSION14  



          10        May   v.   State,   Commercial   Fisheries   Entry   Comm'n,   175   P.3d   1211,  



1215-16  (Alaska  2007).  



          11        Nickerson,  975  P.2d  at  50  n.1.  



          12        Id.  



          13        Rhodes  v.  Erion,   189  P.3d 1051,   1053   (Alaska  2008)   (quoting  Kellis  v.  



Crites,  20  P.3d   1112,   1113  (Alaska  2001)).  



          14        We  are able to  dispose of several of Richards's arguments in summary  

                                                                                                                       

fashion.  (1) Richards argues that she did not plagiarize her paper, that no finding of  

                                                                                                                                  

plagiarism was ever made, and that no one identified the problematic portions of the  

                                                                                                                                 

paper.  However, the record clearly establishes that the faculty unanimously concluded  

                                                                                                                      

that Richards's writing constituted plagiarism.  Furthermore, the issues discussed with  

                                                                                                                               

Richards during the May 2008 meeting and Richards's email discussing how she had  

                                                                                                                                

responded to the allegations by  showing that sources were correctly cited reveal that  

                                                                                                                                

Richards knew which portions of the paper were in question.  

                                                                                 

                     (2) Richards does not dispute that she did not appeal the plagiarism decision  

                                                                                                                         

even though  she had  the  right  to  do  so  and was  informed  of this  right.   However,  

                                                                                                                      

Richards  argues  that  an  appeal  would  have  been  futile  because  the  allegation  was  

                                                                                                                               

unfounded, she was not threatened with dismissal at the time, her accusers would be the  

                                                                                                                                 

decision-makers on appeal, she had no advisor to advise her, and she was experiencing  

                                                                                                                  

family issues. Contrary to her assertion, the amended review clearly states that dismissal  

                                                                                                                        

was a possibility.  Secondly, the appeals policy provides for an informal appeal with the  

                                                                                                                                 

decision maker followed by a formal appeal to the Provost, a person outside Richards's  

                                                                                                                     

                                                                                                                (continued...)  



                                                                -9-                                                          7090
  


----------------------- Page 10-----------------------

                A.	              UAF Acted Reasonably When It Characterized The Dismissal As An                                                                                                            

                                Academic Dismissal.   



                                 Richards   contends   that   UAF   arbitrarily   characterized  her   dismissal   as  



academic when the dismissal was actually disciplinary.                                                                                 Richards focuses her argument                        



on the facts that (1) the Student Code of Conduct defines plagiarism as a disciplinary                                                                                              



infraction; (2) Foley,theDirector ofJudicial                                                              Services, initiated the plagiarismallegation;                                   



(3) the initial notice of the plagiarism allegation directed her to the Student Code of                                                                                                                      



Conduct plagiarism section and disciplinary policy 09:02, not the Handbook; and (4)                                                                                                                        



plagiarismproceedingsaredisciplinarybecauseplagiarismallegations imply dishonesty.                                                                                                      



                                Nickerson  presented a similar question.                                                             Nickerson was enrolled in the                                         



University of Alaska Anchorage's Teacher Certification Program, and he was dismissed                                                                                                       



                14(...continued)  



core  faculty.   The  Appeals  Committee  also  did  not  include  her  accusers.   Moreover,  her  

family  issues  and  the  lack  of  advisor do not make  the  appeal  futile  under  Alaska  case  

law,  and  her  belief  that  the  allegations  were  unfounded  should  have  caused  her  to  appeal.  

See, e.g.,  Nickerson, 975 P.2d at 52 n.2;  State,  Dep't of Revenue v. Hernandez,  No. S- 

 10745,  2004  WL  1092334,  at  *6  (Alaska  May  12,  2004)  (holding  that  appeal  was  futile  

when  the  State  already  refused  to  address  issue).  

                                 (3)  Richards  makes  many  factual  assertions,  both  about  facts  the  superior  

court  found  and  facts  that  did  not  impact  the  decisions  of  the  University  and  the  superior  

court.  Richards alleges that Dr. Allen was the one  who  accused her of plagiarism and  

that all of the negative reviews in the 2008 evaluation were from one sexist professor.  

                                                                       

These factual allegations are unsupported.  

                                                                                                                                                                                                      

                                 (4) Finally, Richards argues that being forced to write the remediation paper  

                                                                                                                                                                                                          

violated her right against self-incrimination and that by having one informal meeting and  

                                                                                                                                                                                                           

then a second executive meeting of the faculty regarding the plagiarism issue, UAF put  

                                                                                                                                                                                                            

her in double jeopardy.  But the right against double jeopardy does not apply outside the  

                                                                                                                                                                

criminal context, absent extreme circumstances not present here.  Hudson v. U.S., 522  

                                                                                                                                                                                                   

U.S. 93, 98-99 (1997). See also Doe v. State, 189 P.3d 999, 1007 & n.58 (Alaska 2008).  

                                                                                                                                                                                                              

And although the right against self-incrimination applies in "any 'proceeding, civil or  

                                                                                                                                                                                                    

criminal, formal or informal, where the answers might incriminate [the party] in future  

                                                                                                                                                                                                             

criminal proceedings," plagiarism is not a crime. Armstrong v. Tanaka, 228 P.3d 79, 82  

                                                                                                                                                                                                   

(Alaska 2010).  See also Lawson v. Lawson, 108 P.3d 883, 887 (Alaska 2005).  



                                                                                                    -10-	                                                                                             7090
  


----------------------- Page 11-----------------------

based on his failure to respond to feedback and his hostile behavior towards professors                                        



                           15  

and   colleagues.                                                                                                                         

                                 UAA  characterized  Nickerson's  dismissal  as  an  academic,  not  

                                      16  We acknowledged that this issue was a close call and accepted  

                                                                                                                                  

                       

disciplinary, dismissal. 



the University's decision because "the determination whether to dismiss a student for  

                                                                                                                                           



academic reasons requires an expert evaluation of cumulative information and is not  

                                                                                                                                           

readily adapted to the procedural tools of judicial or administrative decisionmaking."17  

                                                                                                                 



                      Richards contends that she "experienced allegations . . . that were . . . very  

                                                                                                                                          



similar to those made against Nickerson."  But Richards appears, as a whole, to argue  

                                                                                                                                       



that she was dismissed because she plagiarized her paper. However, the record does not  

                                                                                                                                           



support  a  finding  that  UAF  dismissed  Richards  for  plagiarism.                                              Rather,  she  was  

                                                                                                                                         



dismissed principallybecause she could not appropriately accept feedback in all settings,  

                                                                                                                                   



including in her research assistantship and clinical practicum, during which she was  

                                                                                                                                          



unwilling to accept constructive criticism and was quick to doubt the judgment and  

                                                                                                                                          



experience of others.  These problems escalated to the point that Richards was asked to  

                                                                                                                                             



resign  from  her  research  assistant  position  and  was  suspended  from  her  clinical  

                                                                                                                                   



practicum.           In  dismissing  Richards,  UAF  also  relied  on  the  facts  that  she  had  not  

                                                                                                                                          



completed the remediation assignment to satisfactory standards, and she had not been in  

                                                                                                                                             



good standing for two semesters.  

                                       



                      Although  plagiarism  is  listed  in  the  Student  Code  of  Conduct  as  a  

                                                                                                                                              



disciplinary infraction, the conduct for which Richards was actually dismissed fits into  

                                                                                                                                          



the Handbook's "Academic Impairment" section.   This section lists, as examples of  

                                                                                                                                             



           15         Nickerson,  975  P.2d  at  48-49.  



           16         Id.  at  52-53.  



           17         Id.   at   53   (quoting   Bd.   of   Curators   of   the   Univ.   of   Mo.   v.   Horowitz,  



435  U.S.  78,  90  (1978)).
  



                                                                     -11-                                                              7090
  


----------------------- Page 12-----------------------

conduct that may constitute academic impairment, an "inadequate level of self-directed                                                                                                                                                                               



professional development" and "inappropriate use of and/or response to supervision or                                                                                                                                                                                                                    



academic guidance."   



                                               Richards also claims that thedismissal                                                                                              must havebeen disciplinary                                                                        because  



Foley  was involved                                                        from the beginning,                                                         and Richards was                                                    initially   directed   to   the  



 Student Code of Conduct. These arguments do not have merit. When examining UAF's                                                                                                                                                                                                        



course   of   conduct   as   a   whole,   the   weight  of   the   evidence   makes   clear   that   UAF  



consistently used academic procedures after the very beginning of the proceedings. Not                                                                                                                                                                                                             



only did UAF's initial plagiarism-related decision                                                                                                                                         clearly state that Richards could                                                                



appeal   the   "academic   decision[],"   but   UAF   also   followed   the   steps   laid   out   in   the  



Handbook for academic issues [                                                                                        See   Section B,                                        infra], and UAF's General Counsel                                                                   



discussed the issue as being academic in internal emails.                                                                                                                                               To place too much weight on                                                                     



UAF's   preliminary   initiation   of   procedures   before   either   party   had   all  relevant  



information   when   determining   whether   an   issue   is   academic   or   disciplinary   would  



severely   hamper   UAF's   ability   to   correctly   classify   proceedings   as   academic   or  



disciplinary.  



                                               We   conclude,   based   on   our   holding   in  Nickerson,   that   UAF   acted  



reasonably when it classified Richards's dismissal for failure to follow feedback as an                                                                                                                                                                     



academic dismissal.   



                        B.	                    UAF Substantially Followed Its Legally Valid Procedures, And The                                                                                                                                                                                  

                                               Dismissal Was Not Arbitrary Or Capricious.                                                                                   



                                               Richards   argues   (1)   that   UAF   should  not   have   applied   the Handbook   

                                       18            and                  (2)               that                 UAF                       did                 not                comply                             with                    those                      procedures.  

procedures                                                                                                                                                                                                                                                       



                        18                     A few of Richards's arguments in this section of her brief relate back to the                                                                                                                                                                          



disciplinary versus academic dichotomy.                                                                                                            For example, she argues that the May 2008                                                                                                  

meeting with Dr. Brems, Dr. Allen, and Foley was not "informal" - and therefore                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                 -12-	                                                                                                                                          7090
  


----------------------- Page 13-----------------------

She also takes issue with the substance of the Handbook procedures as they relate to due                                                     

process considerations.                19  



                                                                                                                                             

                       1.	        It was not arbitrary or capricious to apply the procedures in the  

                                                    

                                  program Handbook.  



                                                                                                                                 

                      UAF has several sets of governance rules:  Regents' policies, university  



                                                                                                                                     

regulations, faculty  senate policies,  and the program Handbook.                                                   Regents'  policies  



                                                                                                                                             

include a very broad statement that if a student is dismissed for academic reasons, the  



                                                                                                                                 

challenge  is  to  be  reviewed  in  accordance  with  procedures  set  forth  in  university  



                                                                                                                   20  

                                                                                                                                 

regulations and the Major Academic Unit's rules and procedures.                                                         The university  



                                                                                                                                  

regulation for academic dismissal is more specific and provides that the Major Academic  



                                                                                                                                    

Unit's rules and procedures will set forth formal and informal processes by which a  



                                                                                                                                 21  

                                                                                                                                          

student can obtain review of an academic dismissal from a program of study.                                                          It does,  



           18(...continued)  



                                                                                                                                            

started the disciplinary process - because she was required to be there, the Dean and  

                                                                                                                                               

Provost were copied, and the request was sent on letterhead from Foley, the Director of  

                                                                                                                                            

Judicial  Services  at  UAF.                       This  contention  is  merely  another  argument  that  the  

                                                                                                                                            

procedures were disciplinary, an issue we address above.  Even if her argument is that  

                                                                                                                                           

the  superior  court  erred  by  characterizing  this  proceeding  as  informal,  she  is  also  

                                                                                                                                                 

incorrect.  No witnesses were called; it was not a hearing.  It is better characterized as a  

                                                                                                                                            

time when Richards was able to explain her side of the story in an informal setting.  The  

                                                                                                                                               

Handbook itself supports this conclusion, noting that Step Five begins the initiation of  

                                                                                                                                    

formal action and suggesting that previous steps are meant to serve as "informal methods  

                    

at problem resolution."  



           19         Richards argues that the Handbook procedures as written do not provide  

                                                                                                                                     

students with due process; we address these arguments in the following section.  

                                                                                                                          



           20         R e g e n t s '               P o l i c y           P 0 9 . 0 3 . 0 2 4 ,                 a v a i l a b l e             a t  



http://www.alaska.edu/bor/policy/09-03.pdf.  



           21         University                  Regulation                   R09.03.024(C),                        available                at  

                                                                                                                                          

http://www.alaska.edu/bor/policy/09-03.pdf.  



                                                                     -13-	                                                               7090
  


----------------------- Page 14-----------------------

however, require that the process include a request for a formal review, review by an                                                            



academic decision review committee, and a final decision provided to the student in                                                               



              22  

                                                                                                                                                

writing.          The faculty senate policies include an even more in-depth description of the  



              23  

                                                                                                                                                 

process.            Under  these policies,  the process  begins with  the  student requesting  an  



                                                                                                                                                 

informal review of the decision.  Afterwards the student may ask for a formal review by  



                                                                                                                                      

a  five-member  Appeals  Committee  if  the  student  is  dissatisfied  with  the  informal  



             24                                                                                                            25  

                                                                                                                                      

review.          At the meeting the Appeals Committee may decide to dismiss                                                    the student's  



                                                                                                                                                

request for formal review if the student has failed to provide a sufficient reason that the  



                                                                                      26  

                                                                                                                                        

academic decision was "arbitrary and capricious."                                         If the Appeals Committee decides  



                                                                                                                                   27  

                                                                                                                                        

to accept the appeal, it will schedule a second meeting to review the request.                                                         Finally,  



                                                                                                                                         

the programHandbook lists an even more detailed set of mechanisms, especially leading  



                              

up to the formal appeal.  



                                                                                                                                        

                       There is no merit to Richards's argument that the Regents' broad policies  



                                                                                                                                      

should have been applied over the more specific program Handbook.   The Regents'  



                                                                                                                                                

policy explicitly provides that the grievance will be reviewed in accordance with the  



            22         University    Regulation    R09.03-024(C)(1)-(5),    http://www.alaska.edu/  



bor/policy/09-03.pdf.  



            23         See         UAF            Governance,                  Appeals              Policy            For         Academic  



Decisions, Procedures,  https://www.uaf.edu/uafgov/faculty-senate/policies-procedures/  

appeals-policy-for-academ/.   



            24         Id.   (A)-(B).  

                                   



            25         See supra note 2.  

                                                  



            26         UAF             Governance,                      Appeals                Policy             For           Academic  

                                                                                                                            

Decisions,            Procedures                    (B)(3)(d),           https://www.uaf.edu/uafgov/faculty-senate/  

                                                                       

policies-procedures/appeals-policy-for-academ/.  



            27         Id.   (B)(4).  

                                 



                                                                       -14-                                                                 7090
  


----------------------- Page 15-----------------------

Major Academic Unit's policies, and it directs the reader back to the Handbook itself.                                                                                                       



The Handbook appears to be the most specific set of rules applicable to Richards's                                                                                  



program, so it was neither arbitrary nor capricious for UAF to conduct the proceedings                                                                           



according to the Handbook.           



                             2.            UAF substantially complied with the program Handbook.                                                        



                             In  Nickerson  we held that the University's actions were not an abuse of                                                                                 



                                                                                                                                                    28  

discretionbecausetheysubstantially                                            complied withthecoursecatalog.                                                             

                                                                                                                                                         UAF'sprogram  



                                                                                                                             29  

                                                                                                                                                               

Handbook is similar to the course catalog in Nickerson.                                                                              Since UAF substantially  



                                                                                                                                                                                   

complied with the Handbook's published procedures on dismissal, UAF's conduct was  



                                                                                                             30  

                                                                                       

not arbitrary, capricious, or an abuse of discretion. 



                                                                                                                                                                                       

                             The program Handbook has eight steps.  It is a straightforward exercise to  



                                                                                                                                                                                        31  

                                                                                                                                                                                             

                                                                                                                                                                

relate the turn of events in this case with the step-by-step framework in the Handbook. 



              28             Nickerson    v.                   University    of    Alaska    Anchorage ,    975    P.2d    46,                                                           52  



(Alaska   1999).  



              29             See  id.  at  51  (describing  the  course  catalog as  setting  out  procedures  for  



appeals  of  academic  decisions,  including  dismissal).  



              30             Id . at 52.  

                                          



              31             These steps, in summary, are:  

                                                                                               



                             (1) Anyone may bring a complaint against a student to the Directors of  

                                                                                                                                                                                      

Clinical Training.  A small group discusses the complaint to decide whether it warrants  

                                                                                                                                                                        

investigation.  Step One occurred when Dr. Allen contacted Dr. Brems and Foley.  The  

                                                                                                                                                                                   

three discussed the plagiarism allegation via email and decided to meet with Richards.  

                                                                                                                                                                       



                             (2)  The  Directors  meet  with  the  student.                                                      Step  Two  occurred  when  

                                                                                                                                                                              

Dr.  Allen,  Dr.  Brems,  and  Foley  met  with  Richards  in  May  2008.                                                                                   They  allowed  

                                                                                                                                                                         

Richards to provide input, as the step requires.  

                                                                                  



                             (3) The full Ph.D. faculty meets for an executive session to make an initial  

                                                                                                                                                                               

determination about whether to pursue further action under the Handbook.  Step Three  

                                                                                                                                                                               

                                                                                                                                                              (continued...)  



                                                                                         -15-                                                                                   7090
  


----------------------- Page 16-----------------------

        31(...continued)  



occurred  when  the  core  Ph.D.  faculty  met  in  June  2008.   At  the  meeting  the  faculty  made  

an  initial  determination  that  Richards  had  plagiarized  her  paper  and  decided  to  give  her  

a  remediation  assignment.   Richards  was  notified  of  the  faculty's  decision  at  a  meeting  

held  in  July.   She  was  also  notified  that  she  could  appeal  the  decision,  which  she  did  not.  

Instead  she  wrote  the  remediation  paper.   Because  she  did  not  appeal  the  decision  to  the  

Governance  Committee  and  the  faculty  decided  not  to  recommend  her  dismissal  at  that  

time,  the  remainder  of  the  steps  did  not  apply  in  2008.   When  Richards  failed  to  complete  

the  remediation  assignment  in  2009,  a  reasonable  reading  of  the  Handbook  returned  the  

process  to   Step   Three.     When   the   core   faculty   met   again   in   April   2009   to   discuss  

Richards's  situation,  it  recommended  dismissing  Richards  from  the  program,  and  it  sent  

her  a  letter  asking  her  to  resign.  



                 (4)  The  student,  the  student's  advisor,  and  the  faculty  member  making  the  

accusation  meet  to  discuss  the  matter  and,  if  applicable,  discuss  a  remediation  plan.   The  

student  may  seek  an  informal  resolution  during  this  meeting  if  the  student  disagrees  with  

the  faculty's  decision.   This  meeting  took  place  on  June  11,  2009,  and  Richards  received  

the  memo  asking  her  to  resign  at  that  time.  



                 (5)   If   the   problem   cannot   be   resolved   informally,   the   Governance  

Committee reviews the  dispute  and  decides  whether  to  dismiss  the  student.  Witnesses  

may  testify  at  this  stage,  and  the  student  will  be  given  copies  of  all  written  materials  the  

Governance  Committee  is  considering.  The  student  may  have  an  attorney  present.   The  

Governance  Committee  met  in  September  2009  and  took  testimony  from  Richards  over  

the  course  of  two  days,  in  satisfaction  of  Step  Five.  



                 (6)  The  Governance  Committee  reaches  a  decision. (This step is mislabeled  

as  Step  Five  in  the  Handbook.)   The  Governance  Committee  decided  on  a  "formal  course  

of  action,"  dismissing  Richards,  during  Step  Six.  



                 (7)   The   Governance   Committee   notifies   the   student   in   writing   of   its  

decision. The student  may appeal this decision. (This step is mislabeled as Step Six in  

the Handbook.)   The Governance Committee transmitted its decision to Dean Duffy, who  

notified   Richards   of   the   decision   in   writing   that   same   day.     Step   Seven   allows  the  

Governance  Committee  to  delegate  notification  to  a  third  party,  so  it  was  proper  for  Dean  

Duffy  to  notify  Richards.  



                 (8)  If  a  remediation  plan  is  given,  the  student  and  the student's  advisor  meet  

to  ensure  it  is  completed.  If  the  student  fails  to  complete  the  remediation  assignment,  she  

                                                                                            (continued...)  



                                                    -16-                                               7090
  


----------------------- Page 17-----------------------

After Step Seven, when Dean Duffy notified Richards that the Governance Committee                                                                                                    



had decided to dismiss her, the procedure moved to UAF's faculty senate regulations,                                                                                              



which are reproduced in the Handbook.                                



                                The senate regulations require the student to attempt first to resolve the                                                                                             



issue informally.                         Richards informally appealed to Dean Duffy because the department                                                                         



chair, Dr. Allen, was directly involved.                                                            Dean Duffy concluded that the decision to                                                            



dismiss Richards would remain unchanged.                                                                     As per the regulations, Richards filed a                                                       



formal appeal with the Provost on October 31, 2009.  The Appeals Committee met on   

                                32        The  Appeals  Committee  dismissed  Richards's  appeal  because  it  

December   3.                                                                                                                                                                                             



concluded that she did not provide sufficient support for her assertion that the academic  

                                                                                                                                                                                         



decision was arbitrary and capricious.  

                                                                 



                                UAF did a thorough job of following its internal policies and regulations;  

                                                                                                                                                                                   



therefore we conclude that UAF did not act in an arbitrary or capricious manner in  

                                                                                                                                                                                                          

dismissing Richards from the program.33  

                                                                        



                31(...continued)  



                                                                                                                                                                                                       

may be dismissed from the program. (This step is mislabeled as Step Seven in the  

Handbook.)  



                32              Richards argued before the superior court, but does not now argue, that the  

                                                                                                                                                                                                        

Appeals Committee met outside of the mandated ten-day period.  The superior court's  

                                                                                                                                                                         

reasoning on this issue is persuasive: that the regulation requires the Appeals Committee  

                                                                                                                                                                                     

to set a date within ten days of receiving the appeal.  But even if the regulation required  

                                                                                                                                                                                           

the meeting to be held within ten days, Richards has not shown she was prejudiced by  

                                                                                                                                         

this mistake, and UAF substantially complied with its regulations overall, even when  

                                                                                                                                                                                                  

considering this deficiency.  

                                        



                33              Richards points to the substantial amount of coursework she submitted in  

                                                                                                                                                                                                          

the administrative proceedings demonstrating favorable comments as evidence of her  

                                                                                                                                                                                                       

positive academic performance. But there was also substantial evidence that she refused  

                                                                                                                                                                                              

to accept feedback, both in classes and on the plagiarism issue.  The fact that Richards  

                                                                                                                                                                                          

                                                                                                                                                                               (continued...)  



                                                                                                   -17-                                                                                            7090
  


----------------------- Page 18-----------------------

            C.	         The Superior Court Did Not Err In Holding That Richards Received                                                  

                        Due Process.   



                        Neither we "nor the United States Supreme Court has specifically held that                                                   



dismissal   from a               graduate   program   constitutes   deprivation   of   a   liberty   or   property  



                34  

interest."                                                                                                                              

                    But "a school must provide minimal process before suspending or dismissing  



                                                                 35  

                                                                                                                                           

a student for disciplinary  reasons."                                  We have adopted the United States Supreme  



                                                                                                                                                      

Court's approach that such due process is satisfied if "(1) the school fully informs the  



                                                                                                                                         

student of its dissatisfaction with [her] performance and the danger that this deficiency  



                                                                                                                                       

poses to continued enrollment, and (2) the ultimate decision to dismiss is careful and  



                     36  

                                                                                                                                                     

deliberate."             The level of due process required for an academic dismissal would be less  



                                                                                                                       37  

                                                                                                      

than the minimal due process required for a disciplinary dismissal. 



                                                                          

                        1.	         Amount of process required  



                                                                                                                                 

                        Richards argues that because of the stigmatizing nature of the allegations  



                                                                                                                                               

against her - failure to accept feedback and (she contends) plagiarism - she should  



                                                                                                                                                       

receive more due process than  required  in  Nickerson.                                                 She interprets Nickerson  as  



                                                                                                                                                        

dissolving the distinction between academic and disciplinary dismissals, entitling her to  



                                                                                                                                                   

disciplinary  due  process  protections.                                Neither  of  these  arguments  has  merit.                                  The  



            33(...continued)  



                                                                                                                                           

had  other,  more  favorable  comments  on  her  work  does  not  make  UAF's  decision  

                                           

arbitrary or capricious.  



            34	         Nickerson, 975 P.2d at 52.  

                                                                  



            35          Id.  at  52  (quoting  Szejner  v.  Univ.  of  Alaska,  944  P.2d  481,  486  

                                                                                                                                                   

(Alaska 1997)).  

                



            36          Id.  at  53  (citing  Bd.  of  Curators  of  the  Univ.  of  Mo.  v.  Horowitz,  

                                                                                                                                        

435 U.S. 78, 85 (1978)).  

                              



            37          Id. at 52-53.  

                                   



                                                                          -18-	                                                                   7090
  


----------------------- Page 19-----------------------

allegations in                    Nickerson  - "hostile," "abrasive," "intimidating," and "unprofessional"                                                                    



behavior while teaching - are just as stigmatizing as the allegations against Richards -                                                                                                                           



her inability to accept feedback in various situations and her failure to satisfactorily                                                                                                



complete her remediation assignment.                                                             And her argument that                                      Nickerson  dissolved the   



distinction between                                 academic   and disciplinary                                           due process                      does not follow from a                                    



reading   of   the   case.     In   Nickerson   we   repeatedly   cited   to   the   distinction   between  



academic and disciplinary process, at one point stating that "a university imposing                                                                                                             



sanctions for improper conduct cannot avoid the marginally greater protections for                                                                                                                              



disciplinary   proceedings,   including  an   informal   hearing,   by   labeling   the   dismissal  

                                                                                       38     Moreover, the difference in these two procedures  

academic rather than disciplinary."                                                                                                                                                          



was the basis for our discussion in Nickerson of whether the dismissal was academic or  

                                                                                                                                                                                                                    

disciplinary.39  



                                 Nothing in Richards's arguments provides a reason to depart from the  

                                                                                                                                                                                                                



standard in Nickerson that "[d]ismissal of a student for academic reasons comports with  

                                                                                                                                                                                                              



the requirements of procedural due process if the student had prior notice of faculty  

                                                                                                                                                                                                       



dissatisfaction with his or her performance and of the possibility of dismissal, and if the  

                                                                                                                                                                                                                 

decision to dismiss the student was careful and deliberate."40  

                                                                                                                       



                                 2.               Bias by decision makers  

                                                                                               



                                  To meet any due process standard the decision makers must not have been  

                                                                                                                                                                                                             

biased, so we next address Richards's accusations of bias.41                                                                                           First, Richards argues that  

                                                                                                                                                                                                                



                 38              Id . at 53.
     



                 39              Id.
  



                 40
             Id.  (quoting  Schuler v. Univ. of Minn.                                                      , 788 F.2d 510, 514 (8th Cir. 1986)).                                   



                 41  

                                                                                                                                                                                                        

                                 See Withrow v. Larkin, 421 U.S. 35, 47 (1975) (holding that a biased  

                                                                                                                                                                                       (continued...)  



                                                                                                       -19-                                                                                                 7090
  


----------------------- Page 20-----------------------

Dr. Allen was biased against her because she reported an incident of sexism by another                                                                                                                                                                         



professor to him.                                       Not only is evidence related to the allegation of sexism not present in                                                                                                                                                  



the record, but the professor in question was not a member of either the Governance                                                                                                                                                            



Committee or the Appeals Committee. Nor                                                                                                   was Dr. Allen on the Governance Committee  



or the Appeals Committee.                        



                                           Richards's   other   arguments   relating   to   bias   center   on   the   Governance  



Committee hearing and the Appeals Committee                                                                                                                       meeting.     She argues that Michael                                                      



O'Brien, UAF's General Counsel, had an undue influence on the Appeal Committee                                                                                                                                                                     



proceedings.  And she argues that there were no independent reviews of her dismissal                                                                                                                                                                     



because the Governance Committee was made up of accusing parties.                                                                                                                                                                 She also alleges               



that the materials she submitted to the Governance Committee were tampered with.                                                                                                                                                                                      



Finally, she argues that Dean Duffy was biased because he signed her dismissal on the                                                                                                                                                                                        



same day he received it.                                               



                                           "Administrative agency personnel are presumed to be honest and impartial                                                                                                                                        

                                                                                                                                                        42   Richards provides no actual evidence  

until a party shows actual bias or prejudgment."                                                                                                                                                                                                           



supporting her allegations.  She argues that it has not been proved that O'Brien did not  

                                                                                                                                                                                                                                                                             



participate  in  the  Appeals  Committee  decision,  but  this  argument  is  insufficient:  

                                                                                                                                                                                                                                              



argument is not evidence. And neither of the accusing parties, Dr. Allen and Dr. Brems,  

                                                                                                                                                                                                                                                                



were voting members of the Governance Committee or the Appeals Committee. Finally,  

                                                                                                                                                                                                                                                               



other than her bare allegation, there is no evidence that the materials she submitted to the  

                                                                                                                                                                                                                                                                              



Governance Committee were tampered with. Her argument that Dean Duffy was biased  

                                                                                                                                                                                                                                                                   



because he signed the Governance Committee decision the same day he received it fails  

                                                                                                                                                                                                                                                                       



                      41(...continued)  



                                                                                                                                                                           

decisionmaker renders an administrative proceeding unconstitutional).  



                      42                   AT & T Alascom v. Orchitt , 161 P.3d 1232, 1246 (Alaska 2007).  

                                                                                                                                                                                                                                      



                                                                                                                                     -20-                                                                                                                              7090
  


----------------------- Page 21-----------------------

because the Handbook makes clear that he was transmitting the decision rather than                                                                                     



independently reviewing it.                              



                              In short, Richards offers no evidence that would rebut the presumption that                                                                                         



administrative agency employees are presumed to behonest                                                                          and impartial. Bias                        does not   



present a basis for us to conclude that UAF denied Richards due process.                                                                        



                              3.            Due process standard under                                          Nickerson  



                             Under  Nickerson, Richards only needed to receive "prior notice of faculty                                                                          



dissatisfaction with . . . her performance and of the possibility of dismissal" and a                                                                                                       

                                                                                           43  Generally, the Handbook satisfies these due  

decision that was "careful and deliberate."                                                                                                                                             



processrequirements and affords studentsadequatedueprocess. TheHandbook requires  

                                                                                                                                                                              



written notice "[w]hen a student is placed on not-in-good-standing status" and cautions  

                                                                                                                                                                             



that if a student does not "return to good academic standing by the end of the two  

                                                                                                                                                                                       



semesters following placement on not-in-good-standing [status], the student may be  

                                                                                                                                                                                          



dismissed from the program." The Handbook also explicitly requires notification to the  

                                                                                                                                                                                         



student in Steps Four and Six.  Furthermore, the Handbook's requirements help ensure  

                                                                                                                                                                                 



that decisions made under Handbook procedures, including dismissal decisions, are  

                                                                                                                                                                                        



"careful  and  deliberate."                                   The  Handbook  provides  for  multiple  meetings  between  

                                                                                                                                                                            



interested parties, including a preliminary discussion of the complaint in Step One and  

                                                                                                                                                                                        



meetings with the student in Steps Two and Four, as well as numerous opportunities for  

                                                                                                                                                                                         



deliberation, including a discussion among the core faculty in Step Three, an evaluation  

                                                                                                                                                                         



by the Governance Committee in Step Five, and a review of the remediation plan in Step  

                                                                                                                                                                                      



Eight.  



                              The superior court correctly noted that UAF went far beyond what due  

                                                                                                                                                                                       



process  required  when  it  dismissed  Richards.                                                             Nonetheless,  Richards  raises  many  

                                                                                                                                                                                  



               43            Nickerson,  975  P.2d  46, 53 (Alaska   1999)  (quoting  Schuler,  788  F.2d  at  



514).  



                                                                                           -21-                                                                                             7090  


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                                                      44  

arguments on appeal.                                        The argument that goes to the heart of her due process concerns                                                                          



is   her   argument   that   she   did   not  receive   proper   notice   of   her   dismissal.     Richards  



contends   that   the   provisions  in  the   Handbook   warning   of   dismissal   for   failure   to  



remediateandcontinued not-in-good-standingstatuscannot                                                                                                beconsidered                       propernotice.   



                                  "[N]otice must precede the academic dismissal by a reasonable time so that                                                                                                       

                                                                                                                                                                                                       45   "[T]o  

a student has a reasonable opportunity to cure his or her deficient performance."                                                                                                                             



be meaningful, a student must be given notice prior to the decision to dismiss that the  

                                                                                                                                                                                                                    



faculty is dissatisfied with [her] performance and that continued deficiency will result in  

                                                                                                                                                                                                                       



                 44               Many   of   Richards's   arguments   related   to   this   claim   can   be   quickly  



dismissed as factually inaccurate or unhelpful.                                                                         (1) She argues that she was denied due                                                    

process   because   she   did   not   have   a   lawyer   or   advisor   present   at   the   Governance  

Committee meeting under Step Five of the Handbook.                                                                                         However, due process does not                                           

require an attorney to be present.                                                   See Nickerson                        , 975 P.2d at 53 (holding that a hearing                                     

is not required and not mentioning any right to representation for academic dismissals).                                                                                                                                      

Nevertheless, the Handbook allows an attorney to be present, but Richards chose not to                                                                                                                                 

have an attorney at this                                         stage,  even though she did have an attorney earlier in the                                                                                       

administrative proceedings.  Although she did not choose to have an attorney present,  

                                                                                                                                                                                                                   

Richards did have a student representative on the appeals committee. (2) She alleges that  

                                                                                                                                                                                                                    

she was not allowed to present her materials to the Appeals Committee.  However, the  

                                                                                                                                                                                                                              

Appeals Committee thoroughly reviewed all of the materials that Richards submitted.  

                                                                                                                                                                                                            

(3)  She argues that she should have been present at the executive faculty meeting where  

                                                                                                                                                                                                                  

the faculty found that she plagiarized the integration paper.  Under the Handbook this  

                                                                                                                                                                                                          

meeting was aclosed executive meeting. Furthermore, dueprocess doesnoteven require  

                                                                                                                                                                                                                   

a hearing, so it is certainly not necessary for UAF to permit Richards to attend the  

                                                                                                                                                                                                                   

executive  meeting.                                    See  Nickerson,  975  P.2d  at  53.                                                      (4)  Richards  also  makes  the  

                                                                                                                                                                                                                    

argument that the Handbook she received was in draft form and that later changes to the  

                                                                                                                                                                                   

procedures  indicate  that  UAF  knew that  the  draft  procedures  were  constitutionally  

                                                                                                                                                                                                               

flawed. But the Handbook being in draft form is insufficient for us to conclude that there  

                                                                          

were constitutional errors in it.  



                 45               Nickerson, 975 P.2d at 53.  

                                                                                              



                                                                                                         -22-                                                                                                  7090
  


----------------------- Page 23-----------------------

 dismissal."46  



                                                                             Richards was given repeated notice that there were issues with her inability                                                                                                                                                                                                                                                                                                       



to accept feedback and regarding her not-in-good-standing status.                                                                                                                                                                                                                                                                                                                                         Her initial 2008                                                      



reviewdetailed her problems                                                                                                                                         acceptingfeedbackin many                                                                                                                                     situations, not justwithregards                                                                                                      



to her integration paper, and the faculty clearly informed her that her remediation paper                                                                                                                                                                                                                                                                                                                                                                                      



 did not show that she understood why her integration paper was plagiarized.                                                                                                                                                                                                                                                                                                                                                                                                      The  



professor for whom Richards was a research assistant asked her to resign, citing her                                                                                                                                                                                                                                                                                                                                                                                                       



 difficulties accepting and responding to feedback.                                                                                                                                                                                                                                                And Richards's supervisor for her                                                                                                                                                       



 clinical practicum also stated that she did not accept feedback well, which "led to serious                                                                                                                                                                                                                                                                                                                                                                          



impasses" resulting in a suspension of her right to practice in the clinic.  Richards was                                                                                                                                                                                                                                                                        



informed that she was not in good standing both in 2008 when she received her updated                                                                                                                                                                                                                                                                                                                                                                            



 annual report and in January 2009 when the faculty deemed her remediation paper                                                                                                                                                                                                                                                                                                                                                                                            



insufficient.  Although Richards received some positive comments in the 2008 annual                                                                                                                                                                                                                                                                                                                                                                                    



review, thepositivemessages                                                                                                                                            do not                               outweighthefaculty's increasingly negativereports                                                                                                                                                                                                           



to  her,   especially   at   the   time   her   remediation   paper   was   rejected,   when  she   was  



terminated    from    her    research    assistantship,    and    when    she    was    continued   in  



not-in-good-standing status.   



                                                                             Given the evidence above, Richards received sufficient notice that there                                                                                                                                                                                                                                                                                                                            



were serious concerns about her ability to accept feedback in academic and professional                                                                                                                                                                                                                                                                                                                                                  



 settings.       By    the    time    of    the    Committee's    final    decision    to    dismiss    her    in  



 September 2009, she had notice of several specific examples detailing her inability to                                                                                                                                                                                                                                                                                                                                                                                                            



receive feedback, including the rejection of her remediation paper, the continuation of                                                                                                                                                                                                                                                                   



her not-in-good-standing status, and her dismissal from her research assistantship.                                                                                                                                                                                                                                                                                                                       



                                                                             Secondly, Richards was given sufficient notice that continuation on her                                                                                                                                                                                                                                                                                                                                       



                                      46                                    Id.  



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----------------------- Page 24-----------------------

                                                                                                                  47  

current course would result in dismissal.                                                                               Although Richards was not directed to the                                                                        



Handbook during the 2008 annual review, she was directed there in the 2009 dismissal                                                                                                                                    



recommendation.   And she was informed of her tenuous status in the 2008 amended                                                                                                                                        



review when the review stated that she was "expected to reflect . . . professionalism in                                                                                                  



conduct, and compliance with the APA Ethical Code and the UA Student Code of                                                                                                                                                               



Conduct.   Any breach of these expectations can result in non-continuation in the Ph.D.                                                                                                                                           



Program."   The review also included the statement, "A review will be conducted at the                                                                                                                                                    



Annual Student Professional Development Review in Spring 2009, at which time a                                                                                                                                                                



determination about your standing as agraduatestudent                                                                                                    will be made." These                                       statements  



were each repeated once more in the review.                                                                                      The program Handbook also served as                                                                        



notice, alerting Richards that more than two semesters of not-in-good-standing status as                                                                                                                                                    



well as any violations of the APA Ethical Guidelines could result in dismissal from the                                                                                                                                                  

                          48   The Handbook listed "inappropriate . . . response to supervision or academic  

program.                                                                                                                                                                                                                



guidance"  and  "inadequate  level[s]  of  self-directed  development"  as  examples  of  

                                                                                                                                                                                                                                           



academicimpairment. One indicator of an academicimpairment warranting moresevere  

                                                                                                                                                                                                                                 



intervention is if "[t]he student's behavior does not change as a function of feedback,  

                                                                                                                                                                                                                       



remediation  efforts,  and/or  time."                                                                        Additionally,  the  Handbook  states  that  "[i]f  

                                                                                                                                                                                                                                    



remediation is not successful, student dismissal may be necessary."  

                                                                                                                                                            



                                     Furthermore, the record reflects the abundance of careful deliberation that  

                                                                                                                                                                                                                                        



occurred before UAF faculty terminated Richards from the program, including multiple  

                                                                                                                                                                                                                           



                   47                Id.   ("[T]o   be   meaningful,   a   student  must  be   given   notice   prior   to   the  



decision   to   dismiss   that   the   faculty   is   dissatisfied   with   [her]   performance   and  that  

continued deficiency will result in dismissal.").                                                 



                   48                In  Hermosillo  v.  Univ.  of  Alaska  Anchorage,  No.  S-10563,  2004  

                                                                                                                                                                                                                                 

WL 362384, at *5 (Alaska Feb. 25, 2004), we adopted the opinion of the superior court,  

                                                                                                                                                                                                                                  

which held the appellant "should have known that readmission to the course would be  

                                                                                                                                                                                  

discretionary based on the BSW Student Handbook."  

                                                                                                                   



                                                                                                                   -24-                                                                                                             7090
  


----------------------- Page 25-----------------------

meetings with Richards, two group meetings of faculty, and a two-day hearing where                                                           



Richards testified and the faculty reviewed the voluminous evidence she submitted.                                                   



                       Under  our  standard   in   Nickerson,    we    hold    that    Richards    received  

appropriate levels of due process.                         49  



            D.	        The Superior Court Did Not Abuse Its Discretion In Its Award Of  

                                                                                                                                                   

                       Attorney's Fees.  

                                             



                       Under AS 09.60.010(c) the court  

                                                                         



                       may  not  order  a  claimant  to  pay  the  attorney  fees  of  the  

                                                                                                                           

                       opposing party devoted to claims concerning constitutional  

                                                                                                         

                       rights  if  the  claimant  as  plaintiff,  counterclaimant,  cross  

                                                                                                                       

                       claimant, or third-party plaintiff in the action or appeal did  

                                                                                                                           

                       not  prevail  in  asserting  the  right,  the  action  or  appeal  

                                                                                                                    

                       asserting the right was not frivolous, and the claimant did not  

                                                                                                                            

                       have  sufficient  economic  incentive  to  bring  the  action  or  

                                                                                                                             

                       appeal regardless of the constitutional claims involved.  

                                                                                                        



The superior court concluded that Richards was not aconstitutional claimant becauseshe  

                                                                                                                                                   



had an economic interest in the outcome of the case.  But the court was worried about  

                                                                                                             



chilling future claimants and awarded $5,021, only 10% of UAF's claimed attorney's  

                                                                                                                                      



fees.  We conclude that the superior court did not abuse its discretion in this award.  

                                                                                                                                                     



                       Richards had a more than sufficient economic incentive to bring the suit.  



As  she  states  in  her  brief,  she  had  two  years  of coursework  invested  in  the  Ph.D.  

                                                                                                                                             

program, and the opportunity to pursue a Ph.D. is an economic interest.50                                                               Richards  

                                                                                                                                        



            49	        Nickerson, 975 P.2d at 53.                



            50  

                                                                                                                                                 

                       Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 282  

                                                                                                                                                     

(Alaska 2015) ("A litigant has sufficient economic incentive to bring a claim when it is  

                                                                                                                                                   

brought primarily to advance the litigant's direct economic interest, regardless of the  

                                                                                                                                                  

nature of the claim.").  Richards also claims damages, which lessens the likelihood that  

                                                                                                                                              

her claim is constitutional.  See Ninilchik Traditional Council v. Noah, 928 P.2d 1206,  

                                                                                                                                        

 1219 (Alaska 1996) ("[T]he parties here have made no claim for monetary damages,  

                                                                                                                                (continued...)  



                                                                        -25-	                                                                  7090
  


----------------------- Page 26-----------------------

additionally bases her claim to constitutional-litigant status on her belief that her due                                                         



process allegations make                    her a constitutional claimant such that the court may not require                               

                                                         51  Richards is mistaken. Although Richards does assert  

her to pay UAF's attorney's fees.                                                                                                              



a constitutional right, she had "sufficient economic incentive to bring the action . . .  

                                                                                                                                                      

regardless of the constitutional claim[] involved."52                                         The court therefore retained the  

                                                                                                                                                   



discretion to award attorney's fees to UAF.  

                                                                   



                        Second, UAF is correct that the award of attorney's fees falls under Alaska  

                                                                                                                                            

Rule of Appellate Procedure 508(e), not Alaska Rule of Civil Procedure 82.53  Appellate  

                                                                                                                                        

Rule 508(e) has been changed substantially since the superior court's fee decision,54 but  

                                                                                                                                                   



at the time the superior court made its decision, it read:  

                                                                                         



                       Attorney's  fees  may  be  allowed  in  an  amount  to  be  

                                                                                                                           

                       determined by the court . . . .  If the court determines that an  

                                                                                                                             

                       appeal or cross-appeal is frivolous or that it has been brought  

                                                                                                                   

                        simply for purposes of delay, actual attorney's fees may be  

                                                                                                                    

                       awarded to the appellee or cross-appellee.  

                                                                        



                       The superior court had substantial discretion under this section to award  

                                                                                                                                             



fees, and in this case it only awarded 10% of the attorney's fees even though UAF asked  

                                                                                                                                              



it to award 50%.  The superior court was within its discretion to consider the chilling  

                                                                                                                                           



            50(...continued)  



                                                                                                                                         

indicating that economic motivation was not a significant factor in bringing the claim.").  



            51         AS 09.60.010(c) addresses attorney's fees as they relate to constitutional  

                                                                                           

claimants.  



            52         AS 09.60.010(c).  

                               



            53         See Stalnaker v. Williams, 960 P.2d 590, 597 (Alaska 1998) ("A superior  

                                                                                                                                          

court hearing an appeal from an administrative agency awards attorney's fees under  

                                                                                                                                              

Appellate Rule 508, not Civil Rule 82.").  

                                                               



            54         See Alaska Supreme Court Order No. 1843 (April 15, 2015).  

                                                                                                                        



                                                                        -26-                                                                   7090
  


----------------------- Page 27-----------------------

effect a higher award could have on future students and reduce the award accordingly.                                                                                                          

And we have upheld an even higher award percentage-wise in a past academic case.                                                                                                        55  



                             We hold that the superior court did not err by concluding that Richards was  

                                                                                                                                                                                     



not a constitutional claimant and did not abuse its discretion in awarding 10% of UAF's  

                                                                                                                                                                              



attorney's fees.  

                        



 V.            CONCLUSION  



                             WeAFFIRMthesuperior court'sdecision upholdingUAF's administrative  

                                                                                                                                                               



decision dismissing Richards from her Ph.D. program.  

                                                                                                    



               55            Hunt   v.   Univ.   of   Alaska,   Fairbanks,   52   P.3d   739,  746   (Alaska   2002)  



(upholding  approximate  20%  award).  



                                                                                          -27-                                                                                           7090  

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