Grading Practices

Grading policies and practices are time-honored traditions in higher education. Most universities and colleges, departments, and programs have policies that suggest or require grading scales (90–100 = A, 80–89 = B, etc.) for graded courses. Similarly, institutions have guidelines on courses such as seminars, internships, qualifying examinations, theses, or dissertations that are graded on a “pass/fail” or “satisfactory/unsatisfactory” basis. In addition, many programs, departments, and colleges require faculty members to adopt specified textbooks, syllabi, or specific language related to assessment and grading. At the same time, many academic units such as education, architecture, law, social work, health, and medicine are guided by external accreditation or licensing organizations that dictate academic standards. In some cases, these external organizations require that particular assignments, assessments, or student experiences be included in academic programs. Internal and external forces of this kind have potentially profound legal implications for the work of university faculty members, because they are expected to comply with grading policies or risk losing privileges, promotions, and even continued employment.

Against these forces are claims from faculty members that overly restrictive grading policies and practices violate their individual rights to freedom of speech or academic freedom. However, by and large, officials in institutions of higher learning succeed in their defenses of these grading policies and practices. The one notable exception in this trend favoring colleges and universities came in one of the earlier cases, Parate v. Isibor (1989). In Parate, the Sixth Circuit held that forcing a university faculty member to sign a memorandum changing a student's grade unlawfully constituted compelled speech. The court ruled that the “assignment of a letter grade is a symbolic communication intended to send a specific message to the student … [and] is entitled to some measure of First Amendment protection” (p. 827). According to the court, because an instructor's assignment of grades is central to an individual's teaching methods, faculty members should retain wide discretion over the evaluation of students.

The trend favoring colleges and universities in faculty challenges to grading practices can be traced, in part, to important language in Sweezy v. New Hampshire (1957), a case that is widely known for its arguments in favor of the rights of individual faculty members. In Sweezy, the Supreme Court acknowledged that colleges and universities have four essential freedoms: the right to determine who may teach, what may be taught, how it shall be taught, and who may be admitted to study. Following this approach, recent courts have reasoned that academic freedom belongs to institutions rather than to individuals (Urofsky v. Gilmore, 2000). For example, a federal trial court in Virginia was of the opinion that a department chair utilizing his authority as chair to alter the course grade of a student did not infringe the First Amendment rights of the faculty member who taught the course, because academic freedom rested with the institution, not with individual [Page 204]faculty members (Stronach v. Virginia State University, 2008).

A review of illustrative cases highlights the point that courts remain deferential to university grading practices, barring a significant infringement on free speech. In Brown v. Armenti (2001), a tenured faculty member, who had been teaching for almost three decades and had been tenured since 1972, was suspended from teaching after he refused to follow an order to change a student's grade. The faculty member assigned the student a failing grade in a practicum class after the student attended only three of fifteen required meetings even though the president of the university ordered that the grade be changed to an “incomplete.” The faculty member was later dismissed for writing a letter to the board of trustees criticizing the president's action. On the allegation that the initial suspension was in retaliation for refusing to change the grade, the Third Circuit entered a judgment in favor of the university in explaining

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