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Bruner v. Peterson, A.A.S. School of Nursing Univ. of Alaska (8/29/97), 944 P 2d 43
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL J. BRUNER, )
) Supreme Court No. S-7736
) Superior Court No.
v. ) 3AN-95-10784 CI
JUDITH A. PETERSEN, PROFESSOR ) O P I N I O N
AND CHAIR, A.A.S. SCHOOL OF )
NURSING AND HEALTH SCIENCES, ) [No. 4875 - August 29, 1997]
UNIVERSITY OF ALASKA, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Stephanie J. Joannides, Judge pro tem.
Appearances: Michael J. Bruner, pro se,
Anchorage, Appellant. Mark E. Ashburn, Ashburn & Mason, Anchorage,
Before: Compton, Chief Justice, Matthews,
Fabe, and Bryner, Justices. [Eastaugh, Justice, not participating.]
Michael J. Bruner claims that the University of Alaska,
Anchorage (UAA) breached its contract with him by requiring him to
take a course in critical thinking before allowing him to enroll in
a nursing course that he had previously failed. The superior court
upheld UAA's decision to place this condition on Bruner's continued
enrollment in the nursing program. We affirm.
II. FACTS AND PROCEEDINGS
Bruner is a student at UAA, pursuing an Associate of
Applied Science Degree in Nursing. During the fall 1995 semester
Bruner earned a grade of "No Pass"in Nursing 222. This was not
the first time Bruner had difficulty passing a class required for
his major. He received a "D"in Nursing 100 and an "F"in Nursing
160 during the fall semester of 1992, and he received a "D"in
Nursing 180 during the spring semester of 1994. [Fn. 1]
Bruner's clinical supervisor in Nursing 222 believed that
Bruner failed to pass the course due to inadequate critical
thinking abilities. In the supervisor's opinion, Bruner had
difficulty assessing and documenting data and was unable to
incorporate the data into the "complete patient picture." The
supervisor noted in his evaluation that Bruner did not use certain
equipment correctly and that he demonstrated inconsistency in
calculating and preparing multiple medications.
UAA Nursing students who are unable to earn an acceptable
grade in a nursing or health science course during their initial
enrollment may attempt to earn a satisfactory grade one additional
time. After failing to pass Nursing 222, Bruner applied to be
placed on the waiting list for re-admission to Nursing 222 in the
fall 1996 semester. The Admissions and Retention Committee of the
Nursing Program (Committee), composed of nursing faculty, informed
Bruner of its decision to require him to pass English 120, a course
entitled "Critical/Creative Thinking,"with a grade of "C"or
higher before allowing him to re-enroll in Nursing 222. The
Committee stated that taking Critical/Creative Thinking would
assist Bruner "in developing more fully cognitive skills which
should help [him] to be successful in the nursing courses [he] must
complete to graduate from the AAS, Nursing Program." In the letter
informing him of the Committee's decision, Professor Judith A.
Petersen, chair of the Committee, asked Bruner to call or make an
appointment to see her if he had any questions regarding the
UAA provides a course catalog to all students. This
catalog states on the inside cover that the catalog "is not a
contract but rather a guide for the convenience of students." The
catalog further declares that "[t]he University reserves the right
to change or withdraw courses, to change the fees, rules, and
calendar for admission, registration, instruction, and graduation;
and to change other regulations affecting the student body at any
time." The UAA School of Nursing and Health Sciences provides a
student handbook to all of its students. The handbook states that
it is designed to assist students in becoming familiar with various
aspects of the nursing degree programs and should be used in
conjunction with the UAA course catalog.
The course catalog does not list Critical/Creative
Thinking as a required course in the Associate of Applied Science
Nursing Program. However, the section of the course catalog
relating to academic progress in the nursing program states that
"[i]n order to progress within the Associate of Applied Science,
Nursing program, students must earn a satisfactory grade (C or
higher or P) in all nursing and health sciences courses." The
School of Nursing and Health Sciences student handbook provides:
In order to progress within the Associate of
Applied Science, Nursing program, students must earn a satisfactory
grade (C or higher or P) in all nursing and health sciences
courses. Please refer to "Withdrawal and Re-Enrollment"for
students who are unable to earn an acceptable grade in a nursing
course during their initial enrollment.
. . . .
Withdrawal and Re-Enrollment
. . . .
Conditions for re-enrollment will be reviewed
on an individual basis by the Chairperson and/or faculty, and is
contingent upon space available.
The course catalog contains UAA's procedure for resolving
student grievances regarding academic decisions made by the
university. Under this procedure, a student has the right to
appeal academic actions to the dean of the appropriate school and
is "entitled to address the [dean] directly if desired before the
decision is rendered by [the dean]." A further appeal to the vice
chancellor for academic affairs is available "[f]or removal from a
major program or loss of baccalaureate degree-seeking status only."
While the student handbook does not address academic appeals, it
contains a section entitled "Resolving Conflicts,"which details
the steps a student should take in attempting to resolve a conflict
between a student and a faculty member. The handbook suggests that
the student should make an appointment with the faculty member in
question to discuss the problem thoroughly. If the problem is not
resolved at this stage, the handbook then recommends a series of
individual administrators with whom the student should meet. The
handbook states that the last step within the school is an
appointment with the dean, which is the same procedure afforded for
an academic appeal. If the problem is still not resolved at this
stage, the handbook informs students that they have a right to
follow the University Grievance Procedure. [Fn. 2]
On December 18, 1995, Tina DeLapp, the Associate Dean for
Nursing, met with Bruner to discuss the requirement that he pass
English 120 before re-enrolling in Nursing 222. In a memorandum
written after the meeting, DeLapp stated that she told Bruner "that
the faculty had identified critical thinking skills as impeding his
ability to apply knowledge gained in theory portions of course work
in the clinical practice area." She also "indicated that the
faculty was concerned that those deficits would result in continued
lack of success in subsequent nursing courses and had identified
completion of ENGL 120 as being potentially beneficial in
facilitating his steady progress through the remaining clinical
courses in the program."
Bruner wrote a letter to the Nursing Administration
protesting the requirement that he pass English 120 prior to re-
enrolling in Nursing 222. He argued that since English 120 is not
a requirement of the nursing program, the Committee's decision
should be overturned as arbitrary and capricious, clearly
erroneous, or based on unlawful discrimination.
Bruner submitted the letter to Nancy Creason, the Interim
Dean for the School of Nursing and Health Sciences, on December 18,
1995. Dean Creason met with Bruner on December 20 to discuss his
complaint. According to Dean Creason's summary of the meeting
written the same day, the discussion was "convoluted." Dean
Creason's summary states that Bruner "was unable to clearly
articulate anything on these charges except to say the critical
thinking course is not a degree requirement and he thinks he can
think critically now."
Following the meeting, Dean Creason sent Bruner a letter
affirming the Committee's decision. In it she stated that the
Committee's decision was within its authority to impose individual
conditions for re-enrollment as stated in the student handbook, was
carefully considered, and was reasonably based upon the evidence
before it. Creason also noted that "the faculty identified
critical concerns about [Bruner's] performance including concerns
for [patient] safety in the areas of medication administration,
physical assessment and documentation, managing patient's changing
status and concerns for independent practice and thought
processes." Dean Creason stated in her letter that because the
requirement was a condition of continuing enrollment rather than
removal from a major program, her decision was the final decision
of the university. She informed Bruner that if he wished to seek
judicial review of the decision, he could file an appeal with the
superior court within thirty days of her decision.
A week later, Bruner filed a complaint against Professor
Judith Petersen in superior court. The superior court found that
the suit was functionally an appeal of Dean Creason's decision [Fn.
3] and issued a written decision affirming Dean Creason. The
superior court held that the provisions in the course catalog and
the student handbook did not constitute a contract between the
university and Bruner. The court further concluded that even if a
contract did exist, the "requirement placed upon appellant was
clearly based upon his performance as a student and appears to be
more than reasonable." Finally, the superior court found that the
university provided Bruner with the correct administrative
procedure for an appeal of an academic action as described in the
During the summer session at UAA, Bruner took English 120
and received a grade of "A". [Fn. 4] On September 29, 1996 the
superior court granted UAA's motion for attorney's fees and ordered
Bruner to pay Petersen $2,103.00 in attorney's fees. Bruner now
appeals the superior court's decision.
III. DISCUSSION [Fn. 5]
A. Did UAA Breach a Contract with Bruner by Requiring Him to
Pass English 120 before Re-enrolling in Nursing 222?
Bruner contends that the superior court erred in finding
that no contract existed between himself and UAA. He claims that
the course catalog and student handbook together constituted a
contract between himself and the university promising that he would
have to take only the required courses listed under his major in
the catalog to graduate. According to Bruner, UAA breached this
contract when the committee required him to pass English 120 before
re-enrolling in Nursing 222 because English 120 is not listed as a
requirement for Bruner's major.
The course catalog lists required courses for each major,
but also states that "[i]n order to progress within the Associate
of Applied Science, Nursing program, students must earn a
satisfactory grade (C or higher or P) in all nursing and health
sciences courses." The student handbook states that "for students
who are unable to earn an acceptable grade in a nursing course
during their initial enrollment . . . [c]onditions for re-
enrollment will be reviewed on an individual basis by the
Chairperson and/or faculty."
The catalog and handbook do not promise that Bruner's
requirements for graduation will be limited to those classes listed
as required for his major. Instead, they explicitly state that
further academic conditions may be imposed on a student who fails
a class. Therefore, the Committee acted in accordance with the
provisions of the course catalog and student handbook when it
evaluated Bruner's academic record to determine what conditions of
re-enrollment were necessary to ensure his successful completion of
While we have not previously decided whether the catalog
or handbook of a state university constitutes a contract between
the student and the university, we need not reach that issue in
this case. Here, UAA's actions fully conformed with the provisions
of the course catalog and the student handbook. Thus, even if the
handbook and catalog constitute a contract between UAA and Bruner,
there was no breach.
Bruner also argues that if a provision of the handbook
authorizes the faculty to set conditions for re-enrollment, the
provision is "unconscionable"and should be ignored. In matters of
academic merit, curriculum, and advancement, courts afford
university faculty and administrators substantial discretion.
Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 90-92
(1978); see also id. at 96, n.6 (Powell, J., concurring); Regents
of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).
When judges are asked to review the substance
of a genuinely academic decision . . . they should show great
respect for the faculty's professional judgment. Plainly, they may
not override it unless it is such a substantial departure from
accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional
Ewing, 474 U.S. at 225. The faculty is in the best position to
determine how to help the student to succeed and must have the
discretion necessary to maintain the integrity of the curriculum
and the degree. There is nothing in the provision governing the
circumstances in which a student must re-take a class that he or
she has failed that represents a "departure from accepted academic
norms." Therefore, the provision is valid. [Fn. 6]
B. Was Bruner Afforded the Appropriate Administrative
Procedure for His Academic Appeal?
Bruner contends that the superior court erred in finding
that the administrative process furnished to him was adequate. He
claims that he was denied due process because the UAA Nursing
Administration did not follow their own regulations in the School
of Nursing and Health Sciences handbook. He also argues that he
should have been allowed to appeal the dean's decision to the
chancellor, and that the "Nursing Administration,"which decided
his academic appeal, was not an impartial tribunal. These claims
are without merit.
UAA's catalog and handbook provide procedures to resolve
a student's dispute about an academic action and to resolve
conflicts between individual faculty and students. The Committee's
decision to require Bruner to pass English 120 before re-enrolling
in Nursing 222 was a formal academic action changing Bruner's
required curriculum. The procedure for a student to appeal an
academic action is clearly set forth in the course catalog. To
institute an appeal, the student must make a written request for
appeal to the dean within fifteen days of the action disputed. The
request must set forth "the action to be reviewed, the reason [he]
believes the action was inappropriate, and the corrective action"
requested. Bruner followed this procedure when he submitted his
letter of December 18, 1995, to the dean. The procedure detailed
in the catalog sets forth the standard for the dean to utilize in
considering the appeal. [Fn. 7] Bruner cited this standard in his
letter of appeal, and Dean Creason followed it in making her
decision. The procedure provides that a student has the right to
address the dean directly before a decision is rendered, and that
in circumstances such as these the dean's decision is final.
Bruner was allowed to discuss his appeal with the dean at length.
We conclude that UAA afforded Bruner all of the procedural
requirements provided for in the catalog and handbook. [Fn. 8]
As to Bruner's argument that he should have been allowed
to appeal Dean Creason's decision to the chancellor of the
university, the course catalog states that in most instances, the
dean's decision is the final decision within the university. The
catalog provides that in instances of "removal from a major program
or loss of baccalaureate degree-seeking status only, the decision
of the dean/director shall be appealable to the Vice Chancellor for
Academic Affairs." (Emphasis added.) Because Bruner was not
threatened with removal from his program or loss of baccalaureate
degree-seeking status, he did not have a right to appeal the dean's
decision to the vice-chancellor. The catalog and handbook do not
provide for appeal to the chancellor under any circumstances.
Finally, Bruner alleges that Dean Creason's decision
should be overturned because she is not an impartial decision
maker. He suggests that because the faculty members on the
committee and Dean Creason have a "close and supportive working
relationship,"Dean Creason was biased. Dean Creason was not a
member of the committee that made the initial decision to require
Bruner to take English 120. Furthermore, agency personnel and
procedure are presumed to be honest and impartial until a
petitioner makes a showing of actual bias or prejudgment. Earth
Resources Co. v. State, Dep't of Revenue, 665 P.2d 960, 962 n.1
(Alaska 1983). Bruner has not offered any evidence that Dean
Creason had actual or probable bias other than the fact that she is
dean of the nursing program. We affirm the superior court's
conclusion that Bruner "was afforded the correct administrative
procedure for his academic appeal."
C. Did the Superior Court Err in Awarding Petersen
In November 1996 Bruner amended his points on appeal to
include the assertion that the superior court erred in awarding
Petersen attorney's fees. However, his briefing on the issue is
limited to a conclusory request "for an injunction ordering: . . .
the appellant and appellee to both bear their own attorney's fees."
We review the award of attorney's fees under the abuse of
discretion standard. McNett v. Alyeska Pipeline Serv. Co., 856
P.2d 1165, 1167 (Alaska 1993). We will find that a trial court
abused its discretion only when we are left with a definite and
firm conviction, after reviewing the whole record, that the trial
court erred in its ruling. Peter Pan Seafoods, Inc. v. Stepanoff,
650 P.2d 375, 378-79 (Alaska 1982).
After considering Petersen's motion for attorney's fees
and Bruner's opposition, the superior court awarded Petersen
attorney's fees in the amount of $2,103.00, the percentage
stipulated in Alaska Civil Rule 82(b)(2). The superior court
rejected Bruner's argument that he was a public interest litigant
and thus exempt from paying attorney's fees. In Murphy v. City of
Wrangell, 763 P.2d 229 (Alaska 1988), we articulated four criteria
that must be satisfied before a party will qualify as a public
(1) Is the case designed to effectuate strong
(2) If the plaintiff succeeds will numerous
people receive benefits from the lawsuit?
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have sufficient economic incentive to file suit even if
the action involved only narrow issues lacking general importance?
Id. at 233.
The superior court found that the "economic incentive of
$10,000 in wages, coupled with the request for 'punitive damages'
for an additional $10,000, demonstrates a sufficient economic
incentive to bring the suit regardless of the possible public
interest elements of his claim,"and determined that Bruner was not
entitled to public interest litigant status. We agree with the
superior court's reasoning and conclude that it did not abuse its
discretion in awarding attorney's fees consistent with Rule 82.
We AFFIRM the superior court's ruling that the university
did not breach a contract with Bruner and that the administrative
procedure afforded Bruner was adequate. We also AFFIRM the
superior court's award of attorney's fees.
A "D"is the lowest passing grade at UAA. However, only one
"D"in a required course is permitted. A "C"average is required
to maintain satisfactory academic standing in the nursing program.
At the time Bruner was required to take English 120 the
university did not have a formal grievance procedure. The
procedure for an academic appeal and the procedure for resolving
conflicts were the sole grievance mechanisms available to students.
This issue is discussed further in Section III.B.
Professor Petersen filed a Motion to Dismiss Bruner's
complaint and convert the action into an administrative appeal. In
an order dated April 17, 1996, the superior court allowed Bruner's
breach of contract and denial of administrative process claims to
proceed as an administrative appeal and dismissed the remaining
counts. The court's dismissal of the remaining counts is not at
issue in this appeal.
The fact that Bruner has already taken and passed English 120
raises the issue of mootness. In the present appeal, Bruner is
protesting the requirement that he pass English 120 before re-
enrolling in Nursing 222. Since he has already passed that course,
there is no relief that Bruner can now request from this court.
Under ordinary circumstances, we will refrain from deciding
questions where events have rendered the legal issues moot.
O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996). A claim
is moot if the party bringing the action would not be entitled to
any relief even if he prevailed. Maynard v. State Farm Mut. Auto.
Ins. Co., 902 P.2d 1328, 1329 n.2 (Alaska 1995). However, Bruner
also appeals the superior court's dismissal of his claim for
$10,000 for income lost because he gave up working to take English
120. In addition, we will review an otherwise moot issue to
determine who the prevailing party is if such a determination is
necessary for purposes of awarding attorney's fees. LaMoureaux v.
Totem Ocean Trailer Express, Inc., 651 P.2d 839, 840 n.1 (Alaska
1982). Bruner was ordered by the lower court to pay Petersen fees
in the amount of $2,103. Since Bruner's appeal of the court's
denial of his claim for lost income and his appeal of the
attorney's fees award are still at issue, we consider the merits of
We independently review the merits of an administrative
determination. No deference is given to the superior court's
decision when that court acts as an intermediate court of appeal.
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska
1992). The "substitution of judgment"test is used for questions
of law where no agency expertise is involved. Id. Whether a
contract existed between Bruner and UAA is a question of law that
does not involve agency expertise. Therefore, we review the
superior court's decision using the "substitution of judgment"
Bruner also contends that the provision is unacceptably vague.
He alleges that the provision's vagueness allowed the UAA Nursing
Administration to treat Bruner differently from his fellow
students, to "maliciously"discriminate against him, and to deny
him due process of law. Bruner also argues in a conclusory fashion
that "the Nursing Administration violated the equal protection of
the law by making unjust distinctions between students." There is
nothing in the record to support these claims, and the superior
court did not err in rejecting them.
The Academic Appeals section of the catalog states: "[A]s a
general rule, the dean/director will not overturn the action of a
faculty member or committee unless it is shown to be arbitrary and
capricious, clearly erroneous, or based on unlawful
Bruner argues that the university violated its regulations
because it did not have a formal grievance procedure available as
stated in the handbook. The handbook provides that if a student is
"unable to resolve a problem on an informal basis . . . the student
has a right to follow the University Grievance Procedure,"and that
"[p]ackets for student grievances with employees, faculty, or the
University as a whole may be obtained from the Office of the
Chancellor." At the time of this suit, the grievance procedure was
in draft form, and not available to students. However, the draft
grievance procedure states that it is not available to resolve
academic decisions. The Committee's decision was an academic
decision because it determined Bruner's required curriculum.
Therefore, even had it been adopted by the time of Bruner's case,
the grievance procedure would not have provided the appropriate
manner for Bruner to appeal the Committee's decision.
Bruner also alleges that UAA has violated the Americans
with Disabilities Act of 1990 (ADA) by failing to "adopt and
publish grievance procedures providing for prompt and equitable
resolution of complaints alleging any action that would be
prohibited"by the Act. While he states that he is a person
covered by the Act, he does not specify his disability. Nor does
he allege that requiring him to take English 120 constitutes a
violation of the ADA. Therefore, we will not address this