                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 99-4162
                                 ___________

John Richmond,                           *
                                         *
             Appellant,                  *
                                         *
       v.                                *
                                         *
Karrol Fowlkes, Individually and as      *
Associate Dean of the College of         * Appeal from the United States
Pharmacy of the University of Arkansas * District Court for the
for Medical Sciences; Jonathan J. Wolfe, * Eastern District of Arkansas.
Individually and as Chairman of the      *
Scholastic Standing Committee of the     *
College of Pharmacy of the University *
of Arkansas for Medial Sciences; Larry *
D. Milne, Individually and as Dean of    *
the College of Pharmacy of the           *
University of Arkansas for Medical       *
Sciences; University of Arkansas Board *
of Trustees,                             *
                                         *
             Appellees.                  *
                                   ___________

                           Submitted: June 15, 2000

                                Filed: October 2, 2000
                                 ___________

Before WOLLMAN, Chief Judge, BEAM, and BYE, Circuit Judges.
                             ___________
WOLLMAN, Chief Judge.

       John Richmond appeals from the district court’s1 grant of summary judgment to
the Board of Trustees of the University of Arkansas and various named administrators
at the College of Pharmacy of the University of Arkansas for Medical Sciences (the
College) in the action he brought against them after his dismissal from the pharmacy
program. We affirm.

                                            I.

       We recite the facts in the light most favorable to Richmond. Richmond enrolled
in the College of Pharmacy in the fall of 1993 and successfully completed five
semesters of the eight-semester program. In evaluating academic progression, the
College utilizes “non-cognitive evaluations,” reports submitted by a professor about
a student’s performance in a course in areas such as preparedness, maturity in
interpersonal relations, timeliness, and various other attributes of professionalism
considered “non-cognitive” but relevant to the academic development of future
pharmacists. A professor makes an evaluation of each student’s non-cognitive
performance, but a report is filed only for those students who perform exceptionally and
for those who perform inadequately. A student may be dismissed by the College’s
Scholastic Standing Committee (Scholastic Committee) for receiving two negative non-
cognitive evaluations. During the spring semester of Richmond’s third year, two of his
professors submitted negative non-cognitive evaluations for his behavior, which
included the failure of basic examinations, sleeping in and lack of preparation for class,
and inappropriate commentary during class.




      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.

                                           -2-
      Dr. Karrol Fowlkes, Associate Dean for Student and Academic Affairs, notified
Richmond of the negative non-cognitive evaluations and asked him to submit a written
explanation for the behavior. Richmond responded in a letter that told the faculty and
Scholastic Committee “what they wanted to hear,” assuring them that such behavior
would not be repeated. The Scholastic Committee met shortly thereafter and ultimately
voted to place Richmond on academic probation until he received his degree. The
Scholastic Committee sent Richmond a letter informing him that another negative non-
cognitive evaluation would result in his dismissal from the College.

       In June of 1996, university police officers reported to Dr. Fowlkes that
Richmond had been drinking, playing loud music, and yelling in the hallway of his
residence hall. Dr. Fowlkes referred Richmond to a committee that deals with
addiction problems, not the Scholastic Committee. Subsequently, in the fall of 1996,
Richmond successfully completed the four clinical rotation courses of his seventh
semester in the program.

       In January of 1997, Richmond began a fifth rotation at a facility in Pine Bluff,
Arkansas, under the supervision of Dr. Sherry May-Myatt. During this rotation,
Richmond fell behind on patient presentations and several times arrived late or not at
all. Mid-rotation, on January 17, 1997, Dr. May-Myatt informed Richmond that he
was failing and that she would ask for him to be dismissed from her rotation if he again
arrived late or failed to show up without notifying her in advance. A week passed
without incident, but problems soon recurred. Dr. May-Myatt spoke with the Chair of
the Department of Pharmacy Practice, who in turn contacted Dr. Fowlkes for an outline
of the available options for dealing with Richmond’s unprofessional conduct and then
relayed the information to Dr. May-Myatt. On January 29, 1997, Dr. May-Myatt
submitted a negative non-cognitive evaluation on Richmond and notified him that she
had done so. Her evaluation noted behavior such as Richmond’s unexplained
absenteeism, his failure to look up the appropriate medication dosage for a 21-month-


                                          -3-
old patient, and his belligerent and argumentative response to Dr. May-Myatt on
January 24, 1997.

        On February 3, 1997, Dr. Fowlkes officially notified Richmond of Dr. May-
Myatt’s negative non-cognitive evaluation and suspended him from rotations pending
Committee action. The Scholastic Committee Chairman, Dr. Jonathan Wolfe, wrote
a letter to Richmond on February 10, 1997, informing him that a meeting would be held
on February 14, 1997. The letter informed Richmond of the date, time, and place of
the meeting, that the negative evaluation would be considered, and that Richmond
could appear in person to make an oral statement and answer questions, could present
a written statement from himself or others on his behalf, and could present approved
witnesses. Dr. Wolfe also informed Richmond of the process in person.

        At the February 14 hearing, Richmond appeared, spoke to the Scholastic
Committee, answered questions, and presented personal references in written form.
The Committee notified Richmond of its timetables for future action and of his
opportunity to protest any final decision. Richmond departed, and the Scholastic
Committee deliberated. Dr. Fowlkes attended Scholastic Committee meetings as an
ex-officio member but did not vote or participate in the deliberative process, acting
solely as a source of historical information. The Scholastic Committee ultimately
agreed to recommend Richmond’s suspension, coupled with a plan for removal of the
suspension and Richmond’s eventual graduation. The Scholastic Committee sent
Richmond a letter encouraging him to submit an appropriate plan with a list of elements
that Richmond was “strongly encouraged” to include. Richmond submitted such a plan
to the Committee on May 13, 1997. The Scholastic Committee revised the plan and
sent it to Richmond with a notice that he should sign and return the plan by May 23,
1997, in order to remain in the College. Richmond failed to do so. Shortly after the
May 23 deadline, Dean Larry D. Milne accepted the Scholastic Committee’s
recommendation and officially dismissed Richmond from the College. Richmond then
brought this suit, contending that he was denied his constitutional rights to due process

                                          -4-
and equal protection and that the individual administrators and faculty had conspired
to deny him these rights. It is from the district court’s grant of summary judgment in
favor of the College that Richmond now appeals.

                                          II.

      We review the district court's grant of summary judgment de novo. See Taylor
v. Nimock’s Oil Co., 214 F.3d 957, 959 (8th Cir. 2000). Summary judgment is proper
if the evidence, viewed in the light most favorable to the nonmoving party,
demonstrates that no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

                            A. Procedural Due Process

        Richmond argues that he was denied due process of law because the Scholastic
Committee did not constitute a fair tribunal. He contends that the process was unfair
first because Dr. Fowlkes was biased and overly involved in the decision to dismiss
him, and, second, because he should have been allowed to attend and be heard at the
final deliberative meetings of the Scholastic Committee. He contends that his dismissal
deprived him of his liberty interest in pursuing a career in pharmacy. Assuming,
without deciding, the existence of a property or liberty interest, we conclude that
Richmond received all the process that he was due.

      To satisfy the Fourteenth Amendment, a student who is dismissed for academic
reasons from a public university must be afforded notice of faculty dissatisfaction and
potential dismissal, and the dismissal decision must be careful and deliberate. See
Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 85 (1978). A
formal hearing is not required for an academic dismissal. See Horowitz, 435 U.S. at
86 & n.3; Disesa v. St. Louis Community College, 79 F.3d 92, 95 (8th Cir. 1996);
Ikpeazu v. University of Nebraska, 775 F.2d 250, 254 (8th Cir. 1985) (per curiam).

                                          -5-
       Richmond received notice on February 10, 1997, of the February 14 Scholastic
Committee meeting to be held to discuss his situation and potential dismissal. From
previous interaction with Dr. Fowlkes and the Scholastic Committee, Richmond was
aware that the faculty was dissatisfied and that dismissal was possible, even likely. Dr.
May-Myatt warned Richmond that she was dissatisfied and that she was submitting
what would be his third negative non-cognitive evaluation. Thus, Richmond had
sufficient notice of the faculty’s dissatisfaction with his performance and of the
possibility that he might be dismissed. He was given an opportunity to respond in his
own defense and to submit a proposed remedial plan to the Scholastic Committee, and
he could have appealed any adverse decision through the grievance process after the
final decision.

       The facts, even in the light most favorable to Richmond, also indicate that the
College’s decision was careful and deliberate. The Scholastic Committee actively
sought Richmond’s participation, evaluated all the evidence presented by Richmond
and the faculty, and made its decision only after a series of meetings concerning the
situation. Richmond has presented no evidence that suggests that the decision was
other than careful and deliberate.

       Richmond also contends that because his last negative non-cognitive evaluation
involved a serious disciplinary matter, he should have received the greater due process
protections afforded students dismissed for disciplinary, rather than academic, reasons.
Richmond’s behavior included failing exams, inappropriate behavior during class, lack
of preparation, tardiness and absenteeism, and inappropriate interaction with
instructors. If personal hygiene and erratic attendance may be appropriately considered
by a medical school as factors bearing on a student’s academic standing in a
professional program, see Horowitz, 435 U.S. at 91 n.6, we cannot conclude that the
College’s consideration of Richmond’s deficiencies as scholastic in nature was
improper.


                                          -6-
       Richmond also argues that the Student Handbook requires that negative non-
cognitive evaluations be referred to a more formal disciplinary committee, although
several Handbook provisions indicate otherwise. The record indicates that the
College’s practice, which is based on the Handbook, has been to send all “normal”
non-cognitive evaluations to the Scholastic Committee. Accordingly, we conclude that
the College did not fail to follow its own procedures.

       Richmond next contends that the decision-maker (the Committee) did not render
a careful and deliberate decision because Dr. Fowlkes was biased against Richmond
and acted as investigator, prosecutor, and adjudicator at the Scholastic Committee
meetings. The College responds by noting that there is no evidence in the record to
support Richmond’s allegations of an unfair tribunal, either concerning Dr. Fowlkes’s
role or his bias. The College further points out that even had Dr. Fowlkes participated
in the adjudicatory process, “the combination of investigative and adjudicative
functions does not, without more, constitute a due process violation.” Withrow v.
Larkin, 421 U.S. 35, 58 (1975). Where administrative matters are concerned we must
proceed on the assumption that the administrators are “entitled to a presumption of
honesty and integrity unless actual bias, such as personal animosity, illegal prejudice,
or a personal or financial stake in the outcome can be proven.” Ikpeazu, 775 F.2d at
254; cf. Marler v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1457 (8th Cir.
1996) (adjudicator’s slight pecuniary interest in proceeding outcome does not violate
due process).

      Dr. Wolfe and other Scholastic Committee members stated that Dr. Fowlkes
played no adjudicatory or prosecutorial role before the Scholastic Committee.
According to the testimony, Dr. Folkwes’s job was to present the information and
documentation previously gathered and then to answer questions concerning past
events. Dr. Fowlkes did not vote or participate in the deliberation regarding Richmond.
Additionally, Dean Milne testified that Dr. Fowlkes has no control over or input into


                                          -7-
which faculty members are chosen to sit on the Scholastic Committee. To counter this
testimony, Richmond offered only his speculation that Dr. Fowlkes participated in the
deliberation and controlled the Committee. Richmond’s speculation about Dr.
Fowlkes’s role and control is insufficient to create a genuine issue of material fact. See
Marler, 102 F.3d at 1457 & n.6; O’Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th
Cir. 1995).

       Richmond’s proffered evidence is also insufficient to create a genuine issue of
material fact about Dr. Fowlkes’s personal bias. Richmond offers his own conjecture
and speculation, which we have already stated is insufficient. Richmond’s mother
concluded that Dr. Fowlkes was biased, but her opinion is also based only on
speculation, not evidence in the record. That Dr. Fowlkes kept a computerized log of
his interactions with Richmond does not in itself indicate bias, as Dr. Fowlkes testified
that he kept a similar log on other students who had attended meetings with him and
their families. Dr. Fowlkes’s referral of Richmond’s situation to the Scholastic
Committee does not indicate bias because his referral was based on the College’s usual
practices. Richmond also alleges that Dr. Fowlkes’s bias can be seen by the fact that
Dr. Fowlkes requested that faculty members submit negative non-cognitive evaluations
on Richmond, but the record shows only that Dr. Fowlkes received the negative
evaluations as they were submitted by faculty members, who are allotted significant
discretion in the determination of such measures. In light of this evidence, we cannot
conclude that the evidence on the record raises an inference of bias. Indeed, Dr.
Fowlkes testified that he tried to give Richmond “a break” after the incident involving
the disturbance in his residence hall.

      Because Richmond did not raise a genuine issue of material fact regarding his
awareness of the faculty’s dissatisfaction and the potential for dismissal and whether
the College’s decision was carefully and deliberately made, the district court properly
granted summary judgment on his procedural due process claim.


                                           -8-
                             B. Substantive Due Process

       Whether a student who is subject to academic dismissal may maintain a cause
of action for the violation of his right to substantive due process remains an open
question. See Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 222-23
(1985). We will assume, arguendo, that such a right exists. See, e.g., Disesa, 79 F.3d
at 95; Schuler v. University of Minnesota, 788 F.2d 510, 513 n.6, 515 (8th Cir. 1986)
(per curiam). To succeed on such a claim, Richmond must demonstrate arbitrary and
capricious conduct on the part of the College by showing that there was no rational
basis for the College’s decision or that dismissal was motivated by bad faith or ill will
unrelated to academic performance. See Schuler, 788 F.2d at 515; Horowitz, 435 U.S.
at 91-92. “When judges are asked to review the substance of a genuinely academic
decision, . . . they should show great respect for the faculty’s professional judgment.”
Ewing, 474 U.S. at 225. Richmond has failed in this attempt.

       Richmond argues that the Scholastic Committee’s rejection of his proposed plan
and substitution of its own was arbitrary and capricious. The differences to which
Richmond points in the two plans are as follows: (1) Richmond’s plan called for him
to be evaluated by a particular licensed psychologist, while the Scholastic Committee
required Richmond to choose a psychologist with whom the members of the committee
were familiar; (2) Richmond wanted the ability to complete his rotations anywhere in
Arkansas, but to ensure closer monitoring the Scholastic Committee limited
Richmond’s options in that regard; and (3) Richmond planned to retain the grades and
status he had currently attained in his scholarly progression within the College, while
the Scholastic Committee required him to re-start his fourth year of study to ensure that
he achieved appropriate standards of professionalism. Richmond also contends that the
Scholastic Committee’s requirement that he accept its plan without change was
arbitrary because there was no reason his plan should not have been accepted.




                                          -9-
       We cannot say that the Scholastic Committee’s actions lacked a rational basis.
To the contrary, they demonstrate careful deliberation and reflect a carefully considered
educational alternative to outright dismissal. See Ewing, 474 U.S. at 227-28
(upholding dismissal that “rested on an academic judgment that is not beyond the pale
of reasoned academic decision-making”).

                                 C. Equal Protection

       Finally, Richmond argues that the district court erred in granting summary
judgment to the College on his equal protection claims. Richmond contends that his
constitutional rights were violated because he was treated differently than similarly
situated students. Citizens are protected from “arbitrary or irrational state action” by
the Equal Protection clause. See Batra v. Board of Regents of the Univ. of Nebraska,
79 F.3d 717, 721 (8th Cir. 1996). As we stated in the due process context, however,
Richmond’s evidence that the College’s conduct was arbitrary or biased against him
is insufficient to create a genuine issue of material fact. He has not shown that other
students who were similarly situated received different treatment. The College’s
administrators and faculty testified that they could remember no other student who had
received so many negative non-cognitive evaluations.

       Finally, because Richmond did not raise his claim of racial bias before the
district court, we decline to address it for the first time on appeal. See Bankcard
Systems, Inc. v. Miller/Overfelt, Inc., 219 F.3d 770, 772 n.3 (8th Cir. 2000).

      The district court’s order is affirmed.




                                          -10-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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