Court of Petty Appeals: Joe v. Fore 187 U.Va. 17 (2017)

HADEN, J., announcing the opinion of the court, joined by GOLDMAN, C.J., and JANI, PICKUS, and THORNTON, JJ.

Today’s case involves a dispute between a teacher and a student over the teacher’s power to give a failing grade. We affirm in part, reverse in part, and direct the lower court to enter judgment in accordance with our opinion here.

All parties to this dispute agree to the relevant facts necessary for resolution of this case. The plaintiff, who we refer to as Dohn Joe for purposes of anonymity, is a 1L currently enrolled at the Law School. As a 1L, Joe is currently enrolled in the yearlong confusing legal adventure known as Legal Research and Writing (hereinafter LRW). Joe’s professor is one of the defendants, Professor Joe Fore, who, we have been told, does not do as many pull ups as Professor Doran.

Defendant Fore assigned a legal brief as the main assignment for LRW this semester. This brief, which amicus briefs have described as “torturous,” “hellish,” “kinda fun if you’re the kind of person who enjoyed journal tryouts,” and “pretty sucky,” was meant to be between fifteen and twenty-two pages, which is a whole lot.[1] Fore made these briefs due at 5:30 pm sharp on Thursday, March 16th. Seven copies of the brief had to be printed out and turned in at the specified time. Fore warned his students, including Joe, that failure to submit the briefs on time would result in a student automatically failing LRW for that semester.

On March 17th, plaintiff Joe was having a pretty shitty day. He had just taken the Accounting exam the day before and that hadn’t gone well. Joe had gotten little-to-no sleep because he was writing personal statements for journal tryouts. Joe and his girlfriend had gotten in a pretty big fight because he really didn’t want to go out for St. Patrick’s Day, but she was really into it and didn’t want to go alone. Worst of all, Joe was out of money in his printing account so he had to go to FedEx to get his briefs printed out. Plus, they charged him extra for the red cover on all of his briefs. Needless to say, Joe was not doing super well around 5:25 pm as he sprinted out of the FedEx store to get back to the Law School.

At 5:31 pm, defendant Fore closed the door of the small interview room where he was collecting the briefs. At 5:34 and ten seconds, Joe arrived but found the door locked. He was unable to submit his briefs. Defendant Fore told Joe via email that Joe would fail LRW and would need to take the class again 2L year. Joe then filed this lawsuit, seeking to enjoin Fore from failing him in LRW for being late to turn in his briefs. Joe also filed suit against defendant Jason Dugas, seeking to enjoin Dugas from entering a failing grade onto Joe’s transcript.

Defendants filed a motion to dismiss in the court below. They argued that, even accepting the facts as true, the difficulties of the plaintiff were not sufficient to warrant an extension on submitting the brief. They argue that professors have plenary power to assign grades in classrooms, and students cannot petition these grades for extraneous reasons. Finally, defendant Dugas argues that grades cannot be left off of a transcript, as that would defeat the purpose of a transcript of one’s academic progress in Law School. A panel of three judges below, consisting of two Dillards and Professor Sarah Ware, granted the motion to dismiss as to both defendants. We affirm the motion to dismiss as to defendant Fore, but reverse the motion to dismiss as to defendant Dugas.

At the outset, following the Goluboff Suggestion, we note that we have jurisdiction as this is a case that rises out of, and uniquely out of, the Law School.

We first turn to the plaintiff’s contentions against defendant Fore. The lower court held that there are no circumstances that the plaintiff could allege such that the deadline (and the subsequent automatic failure of LRW) could be judicially ignored. We disagree with that contention. Certainly there are cases and circumstances in which a Petty Court, acting under its broad grant of equitable powers from this Court,[2] could find that a deadline is unreasonable or unfair, and grant the kind of relief that plaintiff here seeks. However, we are convinced that the plaintiff’s particular circumstances here cannot give rise to the relief he seeks against Fore.

Fore is correct that professors often enjoy plenary power in deciding the grades of their students. There are limitations of fairness and equity; typically these limitations take the form of the “curve,” which we have held elsewhere can be judicially altered. See Anonymous 3L v. Clerkship Rejection, 289 U.Va 1829 (2014). However, we have also held that in pass/fail classes, there are fewer limitations because there is no curve. We have even gone so far as to hold that “the presumption [in pass/fail classes] is that you’re gonna pass, so long as you’re sober 50% of the time.” Seminar on Ethical Values v. Ferzan & Hellman, et al., 382 U.Va 18 (2016). That presumption is only overcome by a clear warning from the professor.

In this case, it is undisputed that Fore gave such a warning to his students, including the plaintiff, that a student would not pass if a brief were submitted late. We find that as a matter of law, Fore did not act outside of his duly granted powers as a professor in setting a deadline, advertising that deadline, and using an automatic failure as the punishment for failure to meet the deadline.

As noted above, we also find that the plaintiff’s specific circumstances do not warrant an exception. Circumstances that might give rise to such an exception include, but are not limited to, a death or serious illness in the family, some sort of unforeseen accident, or the Thursday Keg suddenly returning to its rightful day.[3]

Plaintiff argues that without this Court granting relief, he will be forced to redo LRW and that will be too humiliating to bear. We agree that it may be humiliating, but hopefully it will be easier the second time around. Plus, the 1Ls will just think you’re a Dillard. We must affirm the judgment of the lower court as to defendant Fore.

While we cannot enjoin Fore to help the plaintiff, we think that we can (and should) enjoin Dugas to help the plaintiff. We do not agree with Dugas’ argument that the point of a transcript is to record grades. Rather, we see the transcript as the fundamental tool in helping students get jobs. We recognized that transcripts serve this vital role in Davis Polk v. Donovan, 2 U.Va 1892 (2016) (“Transcripts and softball batting averages are the key statistics that employers examine.”).

We agree with our partially dissenting colleague that in almost all cases, finalized grades should not be removed from the transcript, as that might cause a flurry of litigation from these gunnery 1Ls. However, today, we recognize an exception: failing grades in LRW shall be henceforth stricken from all UVa Law transcripts. Defendant Dugas is hereby enjoined from placing such a grade on any student’s transcript. Fore may fail Joe, and Fore may make him take LRW again, but no evidence of this shall appear on a permanent record.

We therefore reverse the motion to dismiss as granted against defendant Dugas and remand this case with instructions to enter judgment for the plaintiff against defendant Dugas. The remainder of the judgment is affirmed.

ANGELOTTI, J., concurring in part and dissenting in part.

I would affirm the entirety of the lower court’s decision. I cannot join the Court in its conclusion that grades can be left off of a transcript. That would defeat the entire point of a transcript. Trust me, I’d love to get rid of some of my grades, but we can’t do that because without grades, there’d be no Law Review, and without Law Review, I wouldn’t know who to avoid at parties.


[1] As a Court rule, we don’t accept briefs longer than four pages. Who has time to read that much?

[2] Yeah, we learned something from LRW. #disgorgeBrunoKrait.

[3] But see the Regulatory Office of Student Affairs’ recent promulgated rule: “No fun shall be had on Thursdays ever.”