[Cite as Mlakar v. Miami Univ., 2013-Ohio-5930.]



                                                   Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us



CHARLES SHAY MLAKAR, et al.

       Plaintiffs

       v.

MIAMI UNIVERSITY

       Defendant

Case No. 2012-01791

Magistrate Holly True Shaver

DECISION OF THE MAGISTRATE

        {¶ 1} Plaintiffs brought this action alleging breach of contract.             The case
proceeded to trial on the issues of both liability and damages.
        {¶ 2} On May 3, 2010, plaintiffs, Charles Shay Mlakar and Jordan Curtis, were
first-year undergraduate students at defendant university. Plaintiffs were enrolled in a
year-long chemistry course taught by Dr. Richard Bretz. Approximately 150 to 200
students sat for the final exam, during which they were advised to sit with one empty
chair separating them from the next student. The classroom was comprised of 10 to 15
tiered rows.     The desks in the classroom consisted of long tables and the seating
consisted of chairs that had casters on them. Plaintiffs sat next to each other, with one
empty seat between them. When a stack of exams was passed down their row, Curtis
took the exam from the top of the stack and then passed the stack to Mlakar.
        {¶ 3} According to plaintiffs, another stray exam was passed down the row.
Instead of taking the next exam off the top of the stack, Mlakar took the stray exam and
passed the stack to the next student, Elizabeth Pavlik. Plaintiffs completed their exams
within the alloted time and turned them in.
Case No. 2012-01791                       -2-                                DECISION

      {¶ 4} On May 5, 2010, Dr. Bretz sent an email to Dr. Chris Makaroff, Dean of the
Department of Chemistry and Biochemistry, wherein Dr. Bretz stated that he had
witnessed “suspicious activity between three students” (including plaintiffs and another
student) during the final exam.    Dr. Bretz informed Dr. Makaroff that he witnessed
students looking at each other’s Scantron cards, sliding their chairs together, and
switching forms of the exam. (Plaintiffs’ Exhibit 2.) Later the same day, Dr. Makaroff
notified plaintiffs via email that they had been charged with academic dishonesty as a
result of the chemistry final exam. In the notice, Dr. Makaroff attached a copy of the
student handbook; advised plaintiffs that if they had questions they could schedule a
meeting with him prior to the hearing and that their academic advisor could attend;
stated that they must schedule a hearing on the merits of the allegations and that a
member of the university community could accompany them; advised them that if they
felt that he could not be impartial or fair that a designee could conduct the hearing;
informed them that they could submit a written statement prior to or during the hearing,
that they could bring any witnesses that they wanted, and informed them of the post-
hearing process. (Plaintiffs’ Exhibit 1.) Dr. Makaroff advised plaintiffs that “[w]ithin 7
days of the receipt of this memo you must schedule a meeting with me to hear the
academic dishonesty case.” Id.
      {¶ 5} On May 7, 2010, Dr. Makaroff conducted separate academic dishonesty
hearings for the three accused students. On May 11, 2010, plaintiffs were notified that
Dr. Makaroff had found them “responsible” for an act of academic dishonesty for
“communicating with, providing assistance to, or receiving assistance from another
person in a manor [sic] not authorized by the instructor” during the final exam in
Chemistry 142 on May 3, 2010. (Plaintiffs’ Exhibit 5.) Dr. Makaroff advised plaintiffs
that they had the right to appeal his decision as outlined in the student handbook by
submitting a written appeal to Dean Karen Schilling within five class days of the notice,
or by 5:00 p.m. Monday, May 17, 2010. Id.
Case No. 2012-01791                         -3-                                 DECISION

       {¶ 6} Plaintiffs both submitted timely written appeals to Dean Schilling. On May
18, 2010, Dean Schilling notified plaintiffs that she had sustained Dr. Makaroff’s original
finding of academic dishonesty.       (Plaintiffs’ Exhibit 8.)   On June 11, 2010, Dean
Schilling met with plaintiffs at their request. On June 17, 2010, Dean Schilling sent
plaintiffs written notification that she would not reverse her decision. (Plaintiffs’ Exhibit
11.) As a result of the finding of academic dishonesty, plaintiffs received a grade of
“zero” on the final examination and were required to complete a seminar on academic
integrity at a cost of $200. Plaintiffs dispute the finding of academic dishonesty and
assert that defendant both breached its contract with them and denied them due
process when it failed to comply with the procedures in its university student handbook.
       {¶ 7} It is well-settled that the relationship between a university and a student
who enrolls, pays tuition, and attends class is contractual in nature, and that the terms
of this contractual relationship may be found in the handbook, catalog, and other
guidelines supplied to students. Bleicher v. Univ. of Cincinnati College of Med., 78 Ohio
App.3d 302, 308 (10th Dist.1992). In addressing an alleged breach of such contract, a
trial court is required to defer to academic decisions of a university unless it perceives
“such a substantial departure from accepted academic norms as to demonstrate that
the person or committee responsible did not actually exercise professional judgment.”
Id., quoting Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985). The
standard of review is not merely whether the court would have decided the matter
differently but whether the faculty action was arbitrary and capricious. Bleicher, supra.
See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91 (1978).
       {¶ 8} Mlakar testified that he was not aware that he and Curtis had the same
version of the exam until they discussed the exam later in the evening on May 3.
Mlakar and Curtis both testified that the exams were printed on white paper, and that
there was no way to determine which version was being distributed until the exam was
opened and the words “form 1” or “form 2” appeared. Mlakar and Curtis also testified
that cell phones were not permitted in the classroom during the exam and that the only
Case No. 2012-01791                         -4-                               DECISION

clock in the classroom was located on the back wall, so that they had to turn around in
their chairs multiple times throughout the exam to see the clock.
       {¶ 9} With regard to the hearing procedure, Mlakar testified that the student
handbook mandates that the hearing on academic dishonesty be no earlier than seven
class days after the notice of the hearing, but that Dr. Makaroff conducted the hearing
only two days after the notice was sent, on a day when he had his last final exam of the
semester. Mlakar stated that his hearing lasted less than 10 minutes, and although he
took a statement from Pavlik to the hearing, Dr. Makaroff did not ask him any questions
about Pavlik’s statement. Mlakar also testified that Dr. Bretz alleged that he saw Curtis
and Mlakar looking at each other’s exams, and that he was informed that Curtis and he
had 64 out of 70 identical answers on the exam. Mlakar conceded that he did not raise
the issues of having inadequate time to prepare for his hearing or the premature
scheduling of his hearing in his appeal to Dr. Schilling.
       {¶ 10} Curtis testified that the final exam was printed on white paper but that the
tests throughout the chemistry course had been printed on colored paper. Curtis stated
that she was often “fidgety” during exams to explain why she moved in her chair during
the exam. Curtis also testified that she and Mlakar realized that they had the same
version of the exam later that night when they were discussing the exam but that they
did not realize that they had the same version while they were taking the exam.
       {¶ 11} With regard to her hearing, Curtis testified that she gave Pavlik’s statement
to Dr. Makaroff, but she felt that he had already concluded that she had cheated, and
that she did not have a chance to explain anything during the hearing.              Curtis
acknowledged that she did not state in her letter of appeal that she did not have enough
time to prepare for the hearing or that the scheduling of the hearing did not comply with
the student handbook requirements.
       {¶ 12} Dr. Bretz testified that the final exam he used for the first-year chemistry
class is a standardized test issued by the American Chemical Society (ACS). According
Case No. 2012-01791                         -5-                             DECISION

to Dr. Bretz, the ACS exam is sold in two versions, on two different colors of paper. Dr.
Bretz stated that the exam that he used in 2010 had both a gray and a yellow version.
Dr. Bretz explained that aside from the difference in color, the order of the questions
and the order of the four possible multiple choice answers are unique to each version.
Dr. Bretz had organized the exams into stacks prior to distributing them so that students
would receive alternate copies of the exam. When Dr. Bretz distributed the exams he
passed a stack of exams down the row and told the students to take an exam from the
top of the stack. Inasmuch as the two versions of the exam are different colors, by
scanning the classroom Dr. Bretz could ascertain if someone had an exam out of order.
Half-way through the exam, Dr. Bretz realized that both plaintiffs had the yellow version
of the exam. According to Dr. Bretz, it was not acceptable for two students sitting
beside one another to have the same version of the exam. The other accused student
who was sitting behind Mlakar also had the yellow version of the exam, which was the
correct version for that student to have.
       {¶ 13} Dr. Bretz testified that he witnessed eye movement between plaintiffs
towards their Scantron answer sheets during the exam. After the exams were graded
through the Scantron machine, Dr. Bretz learned that out of 70 questions, Curtis and
Mlakar had 64 identical answers. Of those 64 answers, 18 were wrong answers. Of
those 18 identical wrong answers, eight were not the most commonly given wrong
answer.    Dr. Bretz stated that he would not recommend charges of academic
dishonesty casually against any student, but what he witnessed during the exam,
combined with the statistical analysis of the number of identical answers between
plaintiffs convinced him to contact Dr. Makaroff.
       {¶ 14} Dr. Makaroff testified that during his nine years as the chair of the
chemistry department, he has conducted approximately 50 academic misconduct
hearings. Dr. Makaroff testified that when an instructor suspects academic misconduct,
he would review the instructor’s evidence and decide whether a hearing is warranted. If
Case No. 2012-01791                       -6-                                DECISION

so, a letter is sent to the accused student to set a hearing time. In this matter, Dr.
Makaroff advised Dr. Bretz to proceed with formal charges.
      {¶ 15} According to Dr. Makaroff, he initially explains the hearing process and
asks the student whether he has any questions. Then the faculty member presents his
evidence, and the student is permitted to present his side of the story. Dr. Makaroff
stated that plaintiffs were each permitted to talk as much as they wished during their
separate hearings. Dr. Makaroff stated that he also did an independent review of the
Scantron cards and answer key to make sure that Dr. Bretz’s analysis of the number of
identical answers attributed to plaintiffs was accurate.   After plaintiffs’ hearings, Dr.
Makaroff went to the classroom to observe where plaintiffs and the other accused
student had been sitting during the exam. After evaluating all of the evidence, including
Pavlik’s written statement, the Scantron sheets, the exams, and any written statements
submitted to him from plaintiffs, Dr. Makaroff decided plaintiffs were responsible for
academic dishonesty. Dr. Makaroff added that he gives students the benefit of the
doubt, and only where the evidence is overwhelming does he find them responsible.
      {¶ 16} Dr. Makaroff explained that in order to purchase the ACS exams the
university completes a form promising to hold the exams in confidence and in a secure
location; and that a secretary in the chemistry department stores them in a safe, takes
an inventory of the exams, distributes them to the chemistry professors, and then
collects the exams and returns them to the safe for reuse the following year.         Dr.
Makaroff testified that the ACS exams are always issued in two different colors; that all
faculty are required to administer the same exam; and that the ACS exams that were
used in Dr. Bretz’s class in 2010 were either yellow or gray. Dr. Makaroff presented
examples of the exams used in 2010. (Defendant’s Exhibits I and J.)
      {¶ 17} Plaintiffs assert that the language in Dr. Makaroff’s May 5, 2010 memo
conflicts with the student handbook. Dr. Makaroff’s memo states, in part:
Case No. 2012-01791                        -7-                             DECISION

      {¶ 18} “Within 7 days of the receipt of this memo you must schedule a meeting
with me to hear the academic dishonesty case. Given that we are near the end of the
term, we are able to schedule this meeting as soon as possible. The date and time
must be set so that you, Dr. Bretz, and I can be present. Please contact Katie Peyton
(513-529-2813) to set up the meeting. According to University Regulations, if you wish,
you may be accompanied by a member of the University community.” (Plaintiffs’ Exhibit
1.)
      {¶ 19} Section 1.5.C.2 of the student handbook states: “Procedures for notifying
accused student(s). The department chair/program director shall notify the accused
student in writing of the charge of academic dishonesty and will schedule a hearing with
the accused student. The department chair/program director will notify the student, via
the student’s University electronic mail address, of the hearing no fewer than seven
class days prior to the hearing. (Note: any reference to class days in this manual
includes final exam week.)” (Emphasis in original.)
      {¶ 20} Plaintiffs contend that inasmuch as their hearings were scheduled two
days after they received notice of the allegations against them, defendant violated the
student handbook. Defendant argued that Dr. Makaroff’s memo stated that plaintiffs
were required to “schedule” a meeting within seven days of the receipt of the memo, not
that the meeting had to be “conducted” within seven days of receipt of the memo. The
handbook states that the accused student must be notified of the hearing no fewer than
seven class days prior to the hearing. However, Dr. Makaroff testified that his practice
is to have the students call his secretary to schedule the hearing at their convenience
instead of unilaterally choosing a hearing date seven class days from the date of his
notification. While defendant may have technically violated the student handbook, the
court finds that defendant substantially complied with its requirements.
      {¶ 21} Section 1.5.D of the manual states, in part: “1. Appeals may be made on
three grounds:   (1) inappropriate sanction, (2) procedural defects, either or both of
which were sufficiently substantial to have affected the outcome of the case, or (3) new
Case No. 2012-01791                          -8-                                 DECISION

evidence.”   Although at trial plaintiffs testified that they did not feel like they had
adequate time to prepare for the hearing, neither of them raised that procedural defect
in their appeal to Dean Schilling.
       {¶ 22} Upon review, the court finds that plaintiffs have failed to prove by a
preponderance of the evidence that defendant did not actually exercise professional
judgment. Indeed, Dr. Bretz testified credibly that he witnessed plaintiffs looking at each
other’s exams and that they both had the same version of the exam despite the fact that
Mlakar should have had a different version. In addition, the number of identical answers
was never disputed.
       {¶ 23} Furthermore, the court finds that the testimony of Drs. Bretz and Makaroff
was more credible than that of plaintiffs with regard to the color of the examinations.
The court is persuaded that the final exam was produced by ACS, that it was produced
in two different versions in two different colors, and that plaintiffs’ contention that they
were not aware that they both had the same version of the exam until later in the
evening was not credible.
       {¶ 24} Lastly, to the extent that plaintiffs assert that defendant violated their rights
to due process, it is well-settled that constitutional claims are not actionable in the Court
of Claims. See Thompson v. S. State Community College, 10th Dist. No. 89AP-114
(June 15, 1989); Burkey v. S. Ohio Corr. Facility, 38 Ohio App.3d 170 (10th Dist.1988).
Accordingly, the court finds that it lacks jurisdiction over plaintiffs’ due process claims.
       {¶ 25} For the foregoing reasons, the court finds that plaintiffs have failed to
prove any of their claims by a preponderance of the evidence and, accordingly,
judgment is recommended in favor of defendant.
       {¶ 26} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
Case No. 2012-01791                         -9-                                 DECISION

objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).



                                           _____________________________________
                                           HOLLY TRUE SHAVER
                                           Magistrate

cc:


Jack Cornett                                  Randall W. Knutti
1400 Eaton Avenue                             Assistant Attorney General
Hamilton, Ohio 45013                          150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130
002
Filed July 11, 2013
Sent to S.C. Reporter April 30, 2014
