                                                                           Sep 03 2013, 5:43 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEES:

THOMAS D. COLLIGNON                           CORY BRUNDAGE
Collignon & Dietrick, P.C.                    Cory Brundage LLC
Indianapolis, Indiana                         Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

PETER F. AMAYA,                               )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )    No. 49A04-1212-PL-620
                                              )
D. CRAIG BRATER, M.D., IN HIS                 )
CAPACITY AS DEAN AND DIRECTOR                 )
OF INDIANA UNIVERSITY SCHOOL OF               )
MEDICINE; THE BOARD OF TRUSTEES               )
OF INDIANA UNIVERSITY; MEMBERS                )
OF THE STUDENT PROMOTIONS                     )
COMMITTEE; PATRICIA TREADWELL,                )
M.D., CHAIR OF THE STUDENT                    )
PROMOTIONS COMMITTEE; JOSEPH                  )
A. DIMICCO, PH.D.; KATHLEEN A. PRAG,          )
M.D.; and KLAUS A. HILGARTH, M.D.,            )
                                              )
      Appellees-Defendants.                   )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Cynthia J. Ayers, Judge
                          Cause No. 49D04-1008-PL-37460


                                   September 3, 2013

                              OPINION - FOR PUBLICATION

BROWN, Judge
        Peter F. Amaya was dismissed from Indiana University School of Medicine

(“IUSM”) for failure to maintain acceptable professional standards by allegedly cheating

on an examination. Amaya appeals the trial court’s summary judgment ruling in favor of

D. Craig Brater, M.D., in his capacity as Dean and Director of IUSM; the Board of

Trustees of Indiana University; Members of the Student Promotions Committee (“the

SPC”); Patricia Treadwell, M.D., Chair of the Student Promotions Committee; Joseph A.

DiMicco, Ph.D.; Kathleen A. Prag, M.D.; and Klaus A. Hilgarth, M.D., (collectively, the

“University”) with respect to his claim that his due process rights were violated resulting

in his expulsion from IUSM. Amaya raises several issues, which we revise and restate as

whether the trial court erred in granting the University’s motion for summary judgment

with respect to his claims that he was not afforded due process and that his dismissal is

not supported by substantial evidence.1 We affirm.

                                                FACTS

        In the spring of 2010, Amaya was a third-year medical student at IUSM in

Indianapolis. Amaya v. Brater, 981 N.E.2d 1235, 1236-1237 (Ind. Ct. App. 2013), reh’g

denied, trans. denied.2 On March 29, 2010, Amaya sat for a mini-block exam consisting

of Introduction to Clinical Medicine II, Pharmacology, and Pathology. Id. at 1237.

Three professors, Dr. DiMicco, Dr. Hilgarth, and Dr. Prag, each observed Amaya during

the examination and concluded that he was cheating by looking at the paper of the

        1
          Amaya alleged multiple claims, and this court has already affirmed the trial court’s entry of
summary judgment in favor of the University with respect to his claims of breach of contract and breach
of good faith and fair dealing. Amaya v. Brater, 981 N.E.2d 1235 (Ind. Ct. App. 2013), reh’g denied,
trans. denied.
        2
          The recited facts are taken in part from this court’s previous opinion related to Amaya’s lawsuit
against the University in Amaya, 981 N.E.2d 1235.
                                                    2
student to his right. Id. On March 30, 2010, Dr. DiMicco confronted Amaya with his

observations, and Amaya denied cheating. On April 5, 2010, Dr. Hilgarth confronted

Amaya with his observations and explained to Amaya that his behavior of looking into

the workspace of the student to his right gave the appearance of cheating. Id. Amaya

denied that he cheated or that he engaged in any behavior that gave the appearance of

cheating and maintained that he was merely looking over and up at the clock on the right-

hand wall of the testing room. Id.

       On April 21, 2010, Dr. Treadwell, the chair of the SPC, wrote to Amaya and

notified him that he had been accused of cheating by Dr. DiMicco and Dr. Hilgarth and

that, if true, his behavior constituted a serious breach of professionalism and a violation

of the school’s honor code. Id. Dr. Treadwell informed him that a show cause hearing

was scheduled for May 17, 2010, during which Amaya should appear before the SPC and

explain why he should not be dismissed from the school for failure to maintain acceptable

professional standards. Id. Amaya was provided copies of written correspondence from

Dr. DiMicco, Dr. Hilgarth, and Dr. Prag, in which they explained the basis of their

allegations of cheating. Id.

       Prior to the show cause hearing, Amaya met with James Brokaw, Ph.D., the

associate dean for Admissions and Medical Student Affairs, to help Amaya prepare for

his presentation to the SPC and to make sure that he understood the process. Id.

       On May 17, 2010, a hearing was held before the SPC, at which Amaya made a

PowerPoint presentation and tendered a written submission including photographs, field

studies, timelines, and statistical analysis. Id. He maintained that he was not looking at

                                            3
the other student’s paper when he took the examination but was, instead, looking at the

clock on the right-hand wall. Id.

       In a letter dated May 21, 2010, Dr. Treadwell stated that the SPC voted to table

further deliberation of the case until the information Amaya presented could be

thoroughly reviewed, that “[t]he gravity of the allegations requires that we deliberate with

utmost seriousness and give due consideration to the evidence presented,” that the SPC

would meet again on June 7, 2010, and that it was her hope that a final decision could be

reached at that time. Appellant’s Appendix at 134.

       Between May 17, 2010, and June 7, 2010, a seven-person subcommittee of the

SPC continued to evaluate Amaya’s information. Amaya, 981 N.E.2d at 1237. The

subcommittee directed additional written questions to Dr. DiMicco, Dr. Hilgarth, and Dr.

Prag, the subcommittee sent the written responses of the professors to Amaya on June 1,

2010, and Amaya was permitted to reply to the SPC with his own written responses to

their comments. Id. In addition, the subcommittee conducted field tests, which consisted

of members going to the testing location and sitting in Amaya’s seat while other members

observed the difference between glances up at the clock and glances to a neighbor’s

paper. Id. The field tests revealed that the professors could easily distinguish between

glances up at the clock and glances down and to the right. Id. On June 7, 2010, the SPC

held a meeting and discussed the evidence presented by Amaya at the May 17, 2010

hearing.

       On June 9, 2010, Dr. Treadwell sent a letter on behalf of the SPC to Amaya stating

that the SPC met on June 7, 2010 to discuss the evidence Amaya presented, that since the

                                             4
May 17, 2010 hearing a seven-person subcommittee, chaired by Dr. Treadwell, carefully

evaluated Amaya’s written documentation, and that the SPC discussed Amaya’s case at

length and weighed the eyewitness accounts of Dr. DiMicco, Dr. Hilgarth, and Dr. Prag

versus the innocuous explanation Amaya presented in his documentation. The letter

advised that the SPC did not find Amaya’s arguments to be compelling and believed the

preponderance of evidence supports the charge of ethical misconduct during the mini-

block exam on March 29, 2010, that accordingly the SPC voted to recommend to the

Dean that Amaya be dismissed from IUSM, that the vote was ten for dismissal, three

against, and three abstentions, and that the decision was not reached lightly but with due

deliberation commensurate with the gravity of the allegations and the consequences of an

adverse vote. The letter further stated that “[f]ield tests conducted by subcommittee

members from the individuals sitting in [Amaya’s] seat revealed that proctors can easily

distinguish between glances up at the clock and glances down and to the right,” that the

SPC “considers it highly unlikely that all three proctors could have been mistaken in their

interpretation of [Amaya’s] behavior,” and that the testing “revealed that someone sitting

in [Amaya’s] seat making sidelong glances to the right can see the bubble sheet (or

circled answers on the exam) of someone sitting two chairs to the right.” Appellant’s

Appendix at 146. The letter went on to say that “[t]his is sufficient to identify the

selected answers,” that “[t]he primary evidence against [Amaya] is the eyewitness

accounts,” that “[t]he statistical evidence is secondary but supports the eyewitness

accounts,” that Amaya’s “statistical consultants’ calculations about the likelihood of two

exams having the same degree of answer concordance as observed in your case assumes

                                            5
no other factors other than chance,” and that Amaya’s “observed behavior must be taken

into account, which makes it much more likely that cheating explains the degree of

concordance.” Id. at 146-147. The letter also advised Amaya that he may request a

reconsideration hearing.

       Amaya requested reconsideration, and a hearing was held on July 19, 2010, at

which Amaya presented additional testimony and documentation, including new

documentary material (which did not address the field tests performed by members of the

subcommittee) and a new PowerPoint presentation. Amaya, 981 N.E.2d at 1238. The

SPC declined to reverse its earlier recommendation for dismissal. Id. Amaya then

appealed the SPC’s recommendation to Dean Brater. Id.

       Prior to meeting with Amaya, Dean Brater requested that an additional field test be

conducted at the testing site in order to evaluate Amaya’s contention that he was merely

looking at the clock rather than at the other student’s paper. Id. The test revealed that the

proctors could tell what direction the accused was looking by eye movement alone. Id.

On August 13, 2010, Dean Brater met with Amaya and reviewed all the material

submitted by Amaya and considered by the SPC. Id. On August 18, 2010, he advised

Amaya that he would not reverse the SPC’s recommendation and that Amaya was

dismissed from IUSM. Id.

                               PROCEDURAL HISTORY

       On August 25, 2010, Amaya filed a verified complaint for temporary restraining

order, preliminary injunction, permanent injunction, and other relief against the

University. Id. The trial court denied Amaya’s application for preliminary injunction.

                                             6
Id. Amaya later filed a second amended verified complaint which alleged: Count I,

violation of due process; Count II, dismissal is not supported by substantial evidence;

Count III, violation of equal protection; Count IV, breach of contract; and Count V,

breach of good faith and fair dealing. Id.

       In September 2011, the University filed a motion for summary judgment and

designation of evidence with respect to Counts IV and V and a motion to dismiss with

respect to Counts I, II, and III. Id. On February 22, 2012, the court held a hearing on the

motions. Id. On March 27, 2012, the court entered an order denying the University’s

motion to dismiss with respect to Counts I and II, granting the University’s motion to

dismiss with respect to Count III, and granting the University’s motion for summary

judgment with respect to Counts IV and V. Id. Amaya appealed the trial court’s

summary judgment ruling in favor of the University on Counts IV and V, and this court

affirmed the summary judgment ruling on January 30, 2013. Id. at 1242.

       Meanwhile, on April 11, 2012, the University filed a second motion for summary

judgment and designation of evidence with respect to Counts I and II of Amaya’s second

amended complaint. Id. at 1238 n.2. On October 10, 2012, the court held a hearing on

the motion.

       On November 14, 2012, the trial court issued an order granting the University’s

second motion for summary judgment as to Counts I and II of Amaya’s second amended

verified complaint.3 The court made a number of findings, which included that “[o]n

June 9, 2010, the SPC informed Amaya in writing that the SPC had also considered

       3
         This order was an amended order. The CCS shows that the court first entered an order granting
the University’s motion on November 13, 2012.
                                                  7
Amaya’s written responses to the sub-committee’s written questions and that the SPC had

evaluated Amaya’s presentation materials concerning sight-lines and angles of view by

conducting ‘field tests,’” that Amaya was notified “that some members of the sub-

committee had gone to the testing location and actually sat in Amaya’s seat, where the

members could ‘easily distinguish between glances up at the clock and glances down to

the right,’” and that “Amaya put the question of his line of sight at issue and the sub-

committee of the SPC conducted a ‘field test’ as part of its deliberate process before the

resumption of the initial hearing on June 7, 2010.” Appellant’s Appendix at 18-19. The

order further noted the reconsideration hearing and the testimony and documentation

presented.

       The court further found that on August 12, 2010, Dean Brater requested one of the

SPC subcommittee members who had previously gone to sit in Amaya’s seat in the prior

field tests “to go back with two associates to double check whether Amaya could have

seen his neighbor’s paper without rotating his head and whether he could have seen the

answers marked on the ‘scantron’ answer sheet,” that the member reported that Amaya

“could have seen his neighbor’s paper without moving his head to the right, could have

seen the answers, and the proctors ‘could tell what direction the accused was looking by

eye movement alone,’” and that Amaya had no opportunity to respond to this new field

test. Id. at 20. The court’s order found that on August 13, 2010, “at Amaya’s request, an

appeal meeting was held with Dean Brater, who received all the record and considered

Amaya’s appeal,” at which “Dean Brater stated that, in cases such as Amaya’s, there was

‘no definitive evidence’ of cheating and there was a chance of a ‘false positive’ or a ‘false

                                             8
negative’ in his decision,” and that on August 18, 2010, Dean Brater advised Amaya that

he would not reverse the decision to dismiss Amaya from IUSM. Id.

       In its conclusions of law, the court concluded, with respect to Amaya’s claim

alleging a violation of due process, that “[w]hile the [SPC] did conduct ex parte field

tests after the May 17, 2010 show cause hearing, [Amaya] was notified of the ex parte

field tests in a letter dated June 9, 2010 and [] had the opportunity to request a

reconsideration hearing and respond to the ex parte field tests,” that the July 19, 2010

reconsideration hearing was held at his request where he “had the opportunity to respond,

explain, and defend in response to the June 9, 2010 letter where Amaya was informed of

the ex parte field tests,” and that “[i]t was at the point of the July 19, 2010 hearing that

Amaya was provided with the fundamental right to due process . . . .” Id. at 23. The

court also concluded that “[w]hen Dean Brater requested a final ex parte ‘field test’ on

August 12, 2010, at this point of the appeal the fundamental right to due process . . . had

already been met,” and that “[t]hus, the August 13, 2010 meeting was not even required.”

Id. at 24.

       With respect to Amaya’s claim alleging that his dismissal was not supported by

substantial evidence, the court concluded “that the observations of Drs. DiMicco,

Hilgarth, and Prag of Amaya during the March 29, 2010 ‘mini-block’ examination at

IUSM along with all of the evidence presented and considered at the May 17, 2010 and

July 19, 2010 hearings provided the requisite amount of evidence necessary to support

the [SPC’s] decision that ‘the evidence supports the charge of ethical misconduct

(cheating)’ and that Amaya would be dismissed from IUSM ‘for failure to maintain

                                             9
acceptable professional standards.’” Id. at 25. The court found there was no genuine

issue of material fact as to Counts I and II of the complaint and granted the University’s

second motion for summary judgment as to those claims.

                         ISSUE AND STANARD OF REVIEW

      The issue is whether the trial court erred in granting the University’s motion for

summary judgment. When a trial court’s ruling granting or denying summary judgment

is challenged on appeal, our standard of review is the same as it is for the trial court.

Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The moving party bears the initial

burden of making a prima facie showing that there are no genuine issues of material fact

and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal

Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). Summary judgment is improper if the

moving party fails to carry its burden, but if it succeeds, then the non-moving party must

come forward with evidence establishing the existence of a genuine issue of material fact.

Id. We construe all factual inferences in favor of the non-moving party and resolve all

doubts as to the existence of a material issue against the moving party. Plonski, 930

N.E.2d at 5. An appellate court reviewing a challenged trial court summary judgment

ruling is limited to the designated evidence before the trial court, see Ind. Trial Rule

56(H), but is constrained to neither the claims and arguments presented at trial nor the

rationale of the trial court ruling, see Woodruff v. Ind. Family & Soc. Servs. Admin., 964

N.E.2d 784, 790 (Ind. 2012) (“We will reverse if the law has been incorrectly applied to

the facts. Otherwise, we will affirm a grant of summary judgment upon any theory

supported by evidence in the record.”); Wagner v. Yates, 912 N.E.2d 805, 811 (Ind.

                                           10
2009) (“[W]e are not limited to reviewing the trial court’s reasons for granting or denying

summary judgment but rather we may affirm a grant of summary judgment upon any

theory supported by the evidence.”).

       The entry of specific findings and conclusions does not alter the nature of a

summary judgment which is a judgment entered when there are no genuine issues of

material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the

summary judgment context, we are not bound by the trial court’s specific findings of fact

and conclusions of law. Id. They merely aid our review by providing us with a statement

of reasons for the trial court’s actions. Id.

                                        DISCUSSION

       Amaya maintains that his due process rights under the federal and state

constitutions were violated resulting in his expulsion from IUSM and that his dismissal

was arbitrary and capricious and not based upon substantial evidence.

                 PART I: AMAYA’S CLAIM HE WAS DENIED DUE PROCESS

A.     Arguments of the Parties

       With respect to his due process rights, Amaya maintains that he was dismissed for

disciplinary reasons for an alleged violation of the honor code and not for academic

reasons and that, “[a]s such, fundamental due process requires notice and an opportunity

for a hearing appropriate to the case” and that “[i]n order to be fair in the due process

sense, the hearing must afford the person adversely affected the opportunity to respond,

explain, and defend.” Appellant’s Brief at 12-13. He contends that he is entitled to

notice of all evidence against him and an opportunity to respond to all evidence against

                                                11
him at a meaningful time and in a meaningful way, that he is entitled to due process

protection in both the determination of misconduct and the determination of the

appropriate sanction, that the SPC placed him on probation without notice of an

opportunity to respond on April 19, 2010, and that he first learned he had been placed on

probation on August 2, 2010. He states that he was notified on April 21, 2010 to appear

before the SPC on May 17, 2010 to show cause why he should not be dismissed for

ethical misconduct, that SPC’s procedures permit the SPC to require a student to show

cause why he should not be dismissed from school when he “has been cited for lack of

acceptable academic ethics or professional behavior,” that “[t]he SPC may only issue a

rule to show cause if the student ‘has been cited.’ Past tense,” and that “[i]n order to

issue the Show Cause letter on April 21, 2010, the SPC necessarily determined and cited

Amaya for lack of acceptable academic ethics or professional behavior on April 19, 2010,

all without notice or opportunity to respond.” Id. at 15-16.

       Amaya further contends that his rights to due process and due course of law were

violated when the SPC and Dean Brater relied on ex parte evidence gathered after the

May 17, 2010 show cause hearing. He asserts that the documentation included in the

April 21, 2010 notification he received was the first time he saw the specific allegations

and witness statements against him, that the accusations and observations contained

within those documents “focused solely on the mini-block exams, which were held on

March 29, 2010,” that he advised the University that, if the SPC intended to allege any

facts outside the scope of the documents, then he demanded that he receive immediate

notice, and that he conducted a field test of the testing site and retained others to provide

                                             12
statistical analyses of the mini-block exam. Id. at 17. Amaya argues that he was required

to meet with Dr. Brokaw to share his anticipated response for the show cause hearing,

that he met with Dr. Brokaw and shared his PowerPoint presentation, that Dr. Brokaw did

not inform him that the SPC had already placed him on probation, and that Dr. Brokaw

attempted to dissuade him from presenting the defense. Amaya asserts that, at the May

17, 2010 meeting, he presented his PowerPoint presentation and a written submission for

the SPC’s consideration, that his presentation addressed his innocence and did not

address mitigating a sanction, that Dr. DiMicco “considered [Amaya’s] effort to defend

himself rather than apologize as ‘distasteful’” and that “Dr. Frankel, a member of the

SPC, considered Amaya’s effort to defend himself against the allegations, rather than

apologize, as ‘belligerent.’” Id. at 19.

       Amaya contends that, while the SPC tabled the deliberations following the

meeting and Dr. Treadwell stated that the SPC was deliberating and giving due

consideration to the evidence presented, “the SPC was, in reality, and without notice to

Amaya, secretly creating a subcommittee chaired by Dr. Treadwell to conduct additional

‘field tests,’” that “Treadwell obviously knew this fact [but] chose not to disclose to

Amaya that the SPC was collecting and considering additional evidence in Amaya’s

case,” and that “[t]he SPC’s secretive acts of obtaining and considering evidence outside

the hearing, with no notice or opportunity for Amaya to respond, is a fundamental denial

of due process.” Id. at 19-20. Amaya argues that the SPC procedures “do not provide for

a rehashing of evidence.” Id. at 22. He posits that the trial court’s findings of fact fail to

consider that he had previously requested and was not provided all documentation that

                                             13
the SPC would consider in its decision, and that he “was never provided a copy of the

summary of observations, each subcommittee member’s personal observation, or the

method and means of the ‘field test.’” Id. He further states that the court’s findings

“ignore that, even after the July 19, 2010 Reconsideration Hearing, Dean Brater, the only

person who can expel a student, requested and relied on a second ex parte investigation.”

Id. at 22-23.

       The University maintains that Amaya was not deprived of any constitutional right.

It initially argues that there is no constitutional right to a graduate school education, that

Amaya’s claim to a constitutional right is based on out-of-date dicta, and that subsequent

court decisions have noted that the opportunity to receive a post-secondary education

from an accredited graduate school program has not received recognition as a

fundamental right. The University further contends that, even if Amaya could support a

claim of constitutional right, he received all the process due him, and that this court has

already ruled that its actions were not arbitrary and capricious.

       The University’s position is that none of Amaya’s alleged deficiencies in the

process he received amount to a denial of due process.              Among the University’s

contentions are that the issue of when Amaya was placed on probation is a red-herring as

this appeal is from his dismissal from IUSM and not from any temporary probation, that

his placement on probation did not predetermine the outcome, and that his probation and

the temporary suspension of his scholarship became moot when he was dismissed. The

University further contends that there was no ex parte evidence which was kept secret

from Amaya or which he had no opportunity to confront.

                                             14
B.     Due Process Analysis

       The Fourteenth Amendment provides that no state shall deprive any person of life,

liberty or property without due process of law. U.S. CONST. AMEND. XIV, § 1. Article 1,

section 12, of the Indiana Constitution contains a similar provision and has been

construed by our courts as analogous to the federal due process clause. See Reilly v.

Daly, 666 N.E.2d 439, 443-444 (Ind. Ct. App. 1996), trans. denied. This court has held

that a student’s interest in pursuing an education is included within the Fourteenth

Amendment’s protection of liberty and property, and a student facing expulsion from a

public educational institution is entitled to the protections of due process. Gagne v.

Trustees of Ind. Univ., 692 N.E.2d 489, 493 (Ind. Ct. App. 1998) (citing Reilly, 666

N.E.2d at 444), trans. denied.

       In Reilly, this court noted that, in the case of an academic dismissal, due process

requires only the barest procedural protections. 666 N.E.2d at 444. In Gagne, we noted,

citing Reilly, that when a sanction is imposed for disciplinary reasons the fundamental

requirements of due process are notice and an opportunity for a hearing appropriate to the

nature of the case. Gagne, 692 N.E.2d at 493. In order to be fair in the due process

sense, the hearing must afford the person adversely affected the opportunity to respond,

explain, and defend. Id. “For school expulsion, due process requires an informal give-

and-take between the student and the disciplinarian, where the student is given an

opportunity to explain his version of the facts.” Id. Due process further requires that a

university base an expulsion on substantial evidence. Id. We also stated in Reilly that

courts have refused to require the traditional formalities of legal proceedings in school

                                           15
suspension and dismissal hearings and that due process requires “not an elaborate hearing

before a neutral party, but simply an informal give-and-take between student and

disciplinarian which gives the student an opportunity to explain his version of the facts.”

Reilly, 666 N.E.2d at 444 (internal quotation marks and citations omitted).

      Assuming that Amaya had or has a liberty or property interest in pursuing a

medical career and in remaining a medical student at IUSM, and whether Amaya’s

dismissal is characterized as academic or disciplinary, Amaya was informed of the

allegations against him, he had the opportunity to explain his version of the facts, the

procedures employed and the ultimate recommendation and decision of the SPC and

Dean Brater were careful and deliberate, and Amaya was not denied due process as

required under the Fourteenth Amendment and Article 1, section 12 of the Indiana

Constitution.

      With respect to his contention that he was not provided with notice or an

opportunity to respond to the evidence against him in a meaningful way, and that he is

entitled to due process protection in both the determination of misconduct and the

determination of the appropriate sanction, the designated evidence shows, and Amaya

does not challenge, that he received notice of the allegations against him of cheating on

the mini-block exam on March 29, 2010. Dr. Treadwell’s letter to Amaya on April 21,

2010, notified him that he had been accused of cheating and that, if true, his behavior

constituted a serious breach of professionalism and a violation of the school’s honor

code, and that he should appear before the SPC on May 17, 2010 and explain why he

should not be dismissed from the school for failure to maintain acceptable professional

                                            16
standards. Amaya was provided copies of written correspondence from Dr. DiMicco, Dr.

Hilgarth, and Dr. Prag, in which they explained their allegations of cheating and he was

given the opportunity to explain his version of the facts. Prior to the May 17, 2010

hearing, he met with Dr. Brokaw to help him prepare for his presentation to the SPC and

to make sure that Amaya understood the process. On May 17, 2010, Amaya appeared

before the SPC, gave a PowerPoint presentation, and tendered a written submission

including photographs, field studies, timelines, and statistical analysis. He said that he

was not looking at the other student’s paper when he took the examination but was,

instead, looking at the clock on the right-hand wall.

       With respect to the field tests by members of the subcommittee of the SPC after

the May 17, 2010 hearing, the designated evidence shows that Amaya received notice by

letter dated June 9, 2010 that the field tests had been conducted and that the tests

“revealed that proctors can easily distinguish between glances up at the clock and glances

down and to the right,” that “someone sitting in [Amaya’s] seat making sidelong glances

to the right can see the bubble sheet (or circled answers on the exam) of someone sitting

two chairs to the right,” and that “[t]his is sufficient to identify the selected answers.”

Appellant’s Appendix at 146. The SPC held a reconsideration hearing on July 19, 2010,

at which Amaya presented additional testimony, the documents and PowerPoint

presentation presented at the May 7, 2010 hearing, the written responses of the professors

to questions of the SPC and Amaya’s responses, new documentary material prepared for

the reconsideration hearing, and a new PowerPoint presentation. While Amaya did not

address the results of the field tests performed by members of the subcommittee and

                                             17
discussed in the June 9, 2010 letter, he had the opportunity to do so. Further, although

Dean Brater requested an additional field visit, he reviewed all of the material submitted

by Amaya and considered by the SPC, and the additional field visit did not differ from,

and the results were not inconsistent with, the previous field tests and results. There is no

indication that Dean Brater’s decision turned on the results of the requested additional

field test in light of the evidence presented before the SPC or the recommendation of the

SPC that Amaya be dismissed from IUSM. Amaya was aware that he faced dismissal,

and he was afforded opportunities to address the allegations against him, including the

statements of the professors who observed him in the exam room and the results of the

field tests performed by members of the subcommittee of the SPC, at the May 17, 2010

hearing, the July 19, 2010 hearing, and his August 13, 2010 meeting with Dean Brater.

       Further, we find Amaya’s argument that his placement on probation in April 2010

shows that the “die was cast and his guilt had been previously determined,” see

Appellant’s Reply Brief at 9, to be unpersuasive. Amaya was afforded opportunities to

address the allegations against him and explain his version of the facts before the SPC

and to Dean Brater, and the designated evidence demonstrates that the SPC and Dean

Brater were deliberative and careful in their determination of Amaya’s dismissal.

       Based upon the designated evidence, we cannot say that Amaya was denied at

least the due process required by the Fourteenth Amendment and Article 1, section 12 of

the Indiana Constitution. See Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78,

84-85, 98 S. Ct. 948, 952 (1978) (“We need not decide, however, whether respondent’s

dismissal deprived her of a liberty interest in pursuing a medical career. Nor need we

                                             18
decide whether respondent’s dismissal infringed any other interest constitutionally

protected against deprivation without procedural due process. Assuming the existence of

a liberty or property interest, respondent has been awarded at least as much due process

as the Fourteenth Amendment requires. The school fully informed respondent of the

faculty’s dissatisfaction with her clinical progress and the danger that this posed to timely

graduation and continued enrollment. The ultimate decision to dismiss respondent was

careful and deliberate. These procedures were sufficient under the Due Process Clause of

the Fourteenth Amendment.”); Gagne, 692 N.E.2d at 495 (holding that Gagne’s due

process rights were not violated, finding that Gagne was aware he faced possible

expulsion and that he had notice of the alleged misconduct, and rejecting Gagne’s

argument that his due process rights were violated by the dean’s reliance on evidence

gathered after the hearing in determining the appropriate sanction where the evidence

supported a finding that the dean did not rely on the later-gathered evidence); Reilly, 666

N.E.2d at 445 (holding that, whether Reilly’s dismissal is characterized as academic or

disciplinary, none of the alleged deficiencies raised by Reilly amounted to a denial of due

process and that Reilly was fully apprised of the evidence against her, that she had an

opportunity to present her side of the story prior to the committee’s decision, and that the

procedures used afforded Reilly at least the minimum due process required by the

Fourteenth Amendment and Article 1, section 12 of the Indiana Constitution).

Accordingly, the trial court did not err in entering summary judgment in favor of the

University on this basis.



                                             19
                      PART II: AMAYA’S CLAIM HIS DISMISSAL IS
                      NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

A.     Arguments of the Parties

       Amaya next maintains that his dismissal from the University is not supported by

substantial evidence. He argues in part that he presented evidence that it is quite possible

that the coincidence that was observed happened entirely by chance, that “in a class of

more than one hundred forty (140) students, it would not be unusual to find several

students who have at least seven of the same incorrect answers as another student who

answered fourteen incorrectly,” and that there is “no ‘exact match’ of wrong answers in

any part of Amaya’s exam with that of his neighbor,” that “the probability of Amaya’s

and his neighbor having selected the same wrong answers only by chance is one in 20

(0.048) to one in 30 (0.033),” and that “Amaya’s behavior was not easily recognizable.”

Appellant’s Brief at 24-25. He contends that the University’s decision to dismiss him

was arbitrary and capricious and that the court erred in determining there was the

requisite amount of evidence necessary to support the SPC’s decision.

       The University maintains that Amaya’s position regarding the evidence is in

reality a substantive due process allegation that asserts the school made an improper

determination on the merits. It argues that the testimony of the three eyewitnesses is

much more than “some” evidence, and that the “some evidence” standard requires less

than a preponderance of the evidence. The University says that this court in Reilly did

not mandate an exact level of statistical correlation to support a determination of

cheating, that Amaya’s unusual behavior during the exam convinced three experienced


                                            20
professors that he had indeed cheated, and that there was some evidence, and compelling

and substantial evidence, to support this conclusion.

       In his reply brief, Amaya contends that the court in Reilly established that, to

constitute “some evidence” of cheating, eyewitness observations must be combined with

statistical evidence. He argues that the need for statistical correlation is based on the

premise that human observations are notoriously fallible, and that “[o]ut of 140 students,

5% will have answers exactly the same as Amaya entirely by chance.” Appellant’s Reply

Brief at 13.

B.     Substantial Evidence Analysis

       Due process requires that a university base an expulsion of a student on substantial

evidence. Gagne, 692 N.E.2d at 493. “Although due process requires schools and

colleges to base their suspension and dismissal decisions on substantial evidence, the

standard of review on appeal is whether there is some evidence to support the decision of

the school or college disciplinary board.” Reilly, 666 N.E.2d at 446. In Reilly, the court

held in part that “[t]he professors’ observations of cheating behavior by Reilly combined

with the statistical analysis of the test results constitute[d] at least some evidence in

support of the Committee’s conclusion that Reilly cheated on her final exam.” Id.

       The University’s designation of evidence includes an affidavit of Dr. Brokaw, the

court’s order which denied in part its motion to dismiss Counts I and II of Amaya’s

second amended complaint, and the second amended complaint. Amaya attached twenty-

one exhibits to his second amended complaint, which included, among other documents,

the written statements of Dr. DiMicco, Dr. Prag, and Dr. Hilgarth, the written responses

                                            21
of the proctors to written questions, a letter and report prepared by Christopher

Holloman, Ph.D., assessing the accusation of academic misconduct against Amaya, and a

report prepared by Luis Casian, Ph.D.

       In a written statement dated April 15, 2010, Dr. DiMicco said that the mini-block

exam on March 29, 2010 consisted of three exams, “Pharm, ICM, and Pathology,” that it

was “very clear to me that Mr. Amaya was looking at the work space of the student to his

right, and doing so in such a way as to conceal this behavior – i.e., by looking downward

and then shifting his gaze to the right,” that “[i]n spite of the fact that each student had

three exams with multiple pages to work on, most of the time I could see that Mr. Amaya

and the student to his right were on the same page of the same exam,” and that “[a]fter

the student next to Mr. Amaya finished and left, the behavior described above ceased.”

Appellant’s Appendix at 122. Dr. DiMicco’s statement further said that Dr. Hilgarth had

found that, on the ICM exam, Amaya “missed all five questions that the other student

missed – and for all five Mr. Amaya had the same wrong answers” and that, on the

pathology exam, “[t]he other student missed two questions, and again Mr. Amaya missed

the same two questions with the same incorrect responses.” Id. at 122-123. In a written

statement dated April 15, 2010, Dr. Prag said that she saw Amaya “tip his head forward

and shift his eyes to the right to look at the other student’s paper,” that “[i]t was very easy

to see where he was looking,” that “[h]e repeated this behavior many times during the 90

minutes while I was there,” and that “it was clear that his behavior was dishonest and not

in keeping with the honor code at this institution.” Id. at 124. In a written statement

dated April 16, 2010, Dr. Hilgarth said that he observed Amaya “looking downward and

                                              22
then looking to the right,” that “[i]t appeared that he was looking at the exam of the

student to the right of him,” that “[t]his behavior occurred repeatedly during the exam,”

and that “this behavior ceased when the student who was sitting to the right of him left

and turned in his exam.” Id. at 125. Dr. Hilgarth also stated that “[e]very time I looked

down, I observed that Mr. Amaya and the student to his right were on the same page of

their exam” and that Amaya “missed the same 5 questions and had the same wrong

answers as the student to the right of him.” Id. Further, the members of the SPC

submitted written questions to Dr. Hilgarth, Dr. DiMicco, and Dr. Prag, and the three

professors provided written responses. When asked if they were sufficiently confident

that Amaya cheated for the SPC to take action, Dr. Hilgarth responded affirmatively, Dr.

DiMicco stated that he had “no doubt that [Amaya] was cheating,” and Dr. Prag stated “I

am confident that Mr. Amaya cheated by peering at his neighbor’s student’s test. I

personally observed him casing sidelong glances in his neighbor’s direction several

times.” Id. at 135-136.

      In a report dated May 5, 2010, Dr. Holloman stated that he performed a statistical

analysis related to the five questions that Amaya and the student to his right answered

incorrectly and for which they provided the same incorrect answers and found that “if

Mr. Amaya truly is innocent there is almost a 1 in 20 chance that he would have

answered these five questions exactly the same way as his neighbor simply by chance.”

Id. at 163. In a letter dated May 8, 2010, Dr. Casian said that the exam consisted of

ninety-one multiple choice questions, that “(I) [the student to the right of Amaya] had at

least 7 incorrect responses among the 14 questions that Mr. Amaya answered

                                           23
incorrectly,” and that “(II) [f]or seven of the incorrect responses in common . . . the

responses of [the neighboring student] were exactly the same.” Id. at 164. Dr. Casian’s

letter further stated “the chances that (I) and (II) occurring at the same time can be

estimated . . . . This gives . . . about one in one [sic] thirty (or one in fifty). With more

than 140 students taking the exam it is not unusual to find several students with the

configuration (I) and (II) in the group that took the test.” Id. at 167.

        While the evidence presented by Amaya suggests that the probability that Amaya

selected the same wrong answer as his neighbor in this case by chance is much higher

than the probability the student did so under the circumstances in Reilly,4 we cannot

conclude that the relative likelihood of Amaya selecting some of the same wrong answers

as his neighbor cannot constitute evidence which may be considered and which tends to

support the conclusion of the SPC and Dean Brater that Amaya committed the alleged

misconduct. Similarly, the fact that there may not have been an exact match of all of the

wrong answers between the exam sheets of Amaya and his neighbor does not necessarily

require a finding that Amaya did not commit the alleged misconduct. As set forth above

and in the designated evidence, the three professors who proctored the mini-block exam

and observed Amaya set forth their observations in detail in separate written statements,

and Amaya presented statistical and other evidence to support his explanation that the

professors’ observations and their inferences based on their observations were incorrect.

The statements of the professors who observed Amaya and the analysis and other

evidence presented by Amaya were carefully considered by the members of the SPC.

        In Reilly, a statistician advised that there was “a one in 200,000 probability that such a match of
        4

wrong answers on the multiple choice questions would occur by chance.” 666 N.E.2d at 442.
                                                    24
       The designated evidence shows that there was at least some evidence in support of

the decision of the SPC and Dean Brater that Amaya cheated on the mini-block exam,

and we cannot conclude that the decision to dismiss Amaya from IUSM was not based

upon substantial evidence or was arbitrary or capricious. See Reilly, 666 N.E.2d at 446

(holding that “[t]he professors’ observations of cheating behavior by Reilly combined

with the statistical analysis of the test results constitutes at least some evidence in support

of the Committee’s conclusion that Reilly cheated on her final exam” and that “[b]ecause

the Committee’s determination is supported by the evidence, we cannot conclude that the

decision to expel Reilly was arbitrary or capricious”). Accordingly, the trial court did not

err in entering summary judgment in favor of the University on this basis.

                                       CONCLUSION

       Based upon the summary judgment materials and designated evidence, we

conclude that Amaya has not met his burden to establish that the trial court erred in

finding there was no genuine issue of material fact as to Counts I and II of Amaya’s

second amended verified complaint and in granting the University’s second motion for

summary judgment as to those claims.

       For the foregoing reasons, we affirm the trial court’s summary judgment in favor

of the University.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




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