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The appendix to this brief is not availablefor online viewing as specified in theMinnesota Rules ofPublic Access to theRecords ofthe Judicial Branch, Rule 8,QllhA ')(e>.\l'1\U uuu. ~\\.1]\~).

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

LEGAL ISSUES 1

STATEMENT OF THE CASE 2

STATEMENT OF FACTS ..; 4

ARGUMENT 6

I. The District Court correctly rejected Zinter's claims for breach ofcontract and promissory estoppeL 7

II. The District Court correctly dismissed the Section 1983 claimsbecause the requested reliefwas not available as a matter oflaw 10

A. Zinter's request for monetary relief is a request for damages 10

B. The District Court correctly concluded that it did not haveauthority to order the University to change Zinter's transcript.. 13

CONCLUSION 16

Certificate of Brief Length 18

Index to Appendix 19

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TABLE OF AUTHORITIES

Federal Cases

Greenhill v. Bailey,519 F.2d 5 (8th Cir. 1975) 14

Jagnandan v. Giles,538 F.2d 1166 (5th Cir. 1976) 11

Raygor v. Regents ofUniv. ofMinnesota,534 U.S. 533 (2002) 10

Trevelen v. Univ. ofMinn.~

73 F.3d 816 (8th Cir. 1996) 10

Will v. Michigan Dept. ofState Police,491 U.S. 58 (1989) 10

State Cases

University ofTexas Medical School v. Than,901 S.W.2d 926 (Tex. 1995) 15

Abbariao v. Hamline Univ. Sch. ofLaw,258 N.W.2d 108 (Minn. 1977) 14, 15

Acton Constr. Co. v. State,383 N.W.2d 416 (Minn. Ct. App. 1986) 12

Alsides v. Brown [nst., Ltd.,592 N.W.2d 468 (Minn. Ct. App. 1999) 1, 7, 8, 14

Honan v. Cty. ofCottonwood,2005 WL 2077277 (Minn. Ct. App. 2005) 10

Mitchell v. Steffen,487 N.W.2d 896 (Minn. Ct. App. 1992) 1, 10, 11, 12

Redden v. Minneapolis, Cmty. & Tech. Coll.,No. A03-I202, 2004 WL 835768 (Minn. Ct. App.Apr. 20, 2004) 7, 8

11

Smith v. Argosy Educ. Group, Inc.,No. A08-0222, 2008 WL 4977598 (Minn. Ct. App. Nov. 25, 2008) 7

Federal Statutes

42 U.S.C. § 1983 3, 10

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LEGAL ISSUES

1. Do Zinter's contract and promissory estoppel claims fail because theyinvolve inquiry into the academic judgment and policies of theUniversity of Minnesota?

The District Court held that her claims did fail for this reason. The most

apposite case is A/sides v. Brown Inst., Ltd., 592 N.W.2d 468 (Minn. Ct. App.

1999).

2. The relief sought from the University and its President on the dueprocess claim includes damages and the removal of a grade from hertranscript. Does Zinter's due process claim fail because the reliefsought is not available for her claim?

The District Court found that the relief sought by Zinter was not available

and, therefore, her claim failed. The most apposite case is Mitchell v. Steffen, 487

N.W.2d 896 (Minn. Ct. App. 1992).

1

STATEMENT OF THE CASE

In May 2009, Zinter filed an action in Conciliation Court against the

University of Minnesota seeking damages in the amount of$6,755.23-the

amount she had spent in tuition and fees for three University courses. 1 The Court

ruled in favor of the Universitl and Zinter appealed to district court.

The parties filed cross-motions with the District Court, with the University

filing a motion for summary judgment and a motion to stay discovery3 and Zinter

filing a motion to amend her complaint and to file formal pleadings.4 In response

to these motions, the District Court granted in part and denied in part both Zinter's

motion for an order for formal pleadings and the University's motion for summary

judgment.5 The Court denied the University's motion to stay discovery.6

The District Court specifically permitted Zinter to serve and file a formal

complaint asserting claims for violation of Zinter's constitutional due process

rights.7 The District Court stated, however, that (I) it was unclear whether or not

any constitutional rights were implicated here; and (2) there was no claim

1. •• • •••• ~ __. Appellant's Addendum at ULL

2 Id. at 023.

3 Id.

4 Id. at 021.

5 Id. at 001.

6 Id.

7 Id.

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available for damages.8 The District Court expressly let Zinter file a formal

complaint to determine whether Zinter could correct the deficiencies in the

proposed complaint, and so the District Court could determine whether Zinter

would be suing for injunctive relief, rather than for damages.9

Zinter subsequently served and filed a First Amended Complaint. 10 This

pleading added a defendant, the University's President, Robert H. Bruininks. II

The Complaint asserted two claims: (1) a claim against Bruininks in his official

capacity for alleged violation of42 U.S.C. § 1983; and (2) a claim against the

University and Bruininks in his official capacity for alleged violation of the due

process clause of the Minnesota Constitution. 12 Zinter sought the same relief for

both claims: (1) a finding that the University and Bruininks violated Zinter's

substantive and procedural due process rights, (2) "reimbursement" of all tuition

paid by Zinter while enrolled in the MLS program and of any other costs incurred

by Zinter in connection with her enrollment in the MLS program; and (3) removal

of an "F" grade from her transcript. 13

8 Id. at 010-011.

9 Id. at 011-012.

10 Id. at 010.

IIId.

12 Appellant's Appendix at 015 & 017.

13 Id. at 019-020.

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The University and Bruininks filed a motion to dismiss Zinter's amended

complaint because the relief sought by Zinter was not appropriate or recoverable

under the District Court's previous ruling or under established law. 14 The District

Court dismissed the First Amended Complaint with prejudice. IS Zinter now

appeals the District Court's judgment.

STATEMENT OF FACTS

Zinter was a student in the University's Master of Liberal Studies ("MLS")

program. 16 The MLS Program is a graduate program within the University of

Minnesota that allows students to study in multiple academic areas. I7 The basic

requirements to obtain a degree include the completion ofat least thirty credits and

completion ofa Final Project. 18 The student's coursework in the Program is

intended to culminate in a Final Project that synthesizes the various disciplines

that have made up the student's program. I9 Although students have considerable

freedom to create their own program, they must work with an academic advisor

and the academic advisor must approve the degree program as being appropriate

14 Respondents' Appendix at 1-11.

IS Appellant's Addendum at 013.

16 Appellant's Appendix at 001.

17 [d. at 001, ~ 4; Respondents' Appendix at 26 (Affidavit of Jo Ellen Lundblad,'2).

18 Respondents' Appendix at 29 (Lundblad Aff., Ex. A).

19 [d. at 26; 27; 38-52 (Lundblad Aff., ~ 2 & 6, Ex. D).

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toward graduation and the academic advisor must approve enrollment in the Final

Project seminar.20

Zinter's academic advisor directed her to take two specific classes to

prepare her for the Final Project seminar and for working on her Final Project.21

These courses were an architecture course (Zinter had said she wanted her Final

Project to concern architecture) and a course on advanced interdisciplinary study.22

It was her advisor's academic judgment that these courses were necessary to allow

Zinter to successfully work on and complete her Final Project.23 Zinter enrolled in

the two courses-earning credit for one and failing the other.24 Zinter did not file

an academic grievance challenging her advisor's direction before enrolling in

these courses.25

In May 2003, prior to being instructed to take the two additional courses by

her academic advisor, Zinter took a study abroad course in Florence, Italy.26 Prior

to the trip she was advised that she would not be allowed to use a video camera

20 [d. at 26; 30-32; 33-37; 38-52 (Lundblad Aff.,·~ 2, Exs. B, C, & D).

21 Appellant's Appendix at 003, ~ 11, 12.

22 [d. at 003, ~ 11.

23 Id. at 003, ,-r 12.

24 [d. at 004, ~ 16.

25 Respondents' Appendix at 67; 71-72 (Affidavit of George D. Green, ~ 5 &Ex. B).'

26 Appellants Appendix at 014, ~ 26.

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during class activities.27 Zinter agreed to this restriction, proceeded to take the

course and go on the trip, earned credit for the course, and reported that she

thought the "trip was great and well worth it" soon after returning.28 However, six

years after the trip Zinter claimed the decision to prohibit video recording

demonstrated bad faith on the part of the MLS department and her academic

advisor29 and supported her claim for reimbursement of tuition paid while enrolled

in the MLS Program.30

ARGUMENT

Zinter's claims are a direct attack on the academic judgment of the

University and, specifically, on the academic judgment ofZinter's academic

advisor. Two undisputed facts tell the story of the case:

• Zinter was a graduate student in a program in whichacademic advisor approval was necessary for both thecourse program and for a Final Project.

• Zinter's advisor's academic judgment was that Zinterneeded to take two particular classes to have an adequatecourse program to prepare her Final Project.

Zinter's claims would require the District Court to decide whether the advisor's

judgment was correct. The District Court properly found that such an inquiry

would be inappropriate and dismissed Zinter's claims. In addition, the District

27 Respondents' Appendix at 53-55; 56-59 (Lundblad Aff., Exs. E & F).

28 Id. at 53-55; 56-59 (Lundblad Aff., Ex. E & F).

29 Appellant's Appendix at 014, ,-r 26.

30Id. at 020, ,-r 4.

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Court correctly rejected Zinter's due process claims fail because the relief sought

is not available.

I. The District Court correctly rejected Zinter's claims for breach ofcontract and promissory estoppel.

The District Court properly rejected Zinter's contract claim and promissory

estoppel claim because Minnesota law does not permit claims that require judicial

inquiry into the academic judgment and policies of educational institutions.

Minnesota courts have rejected educational malpractice claims,31 which challenge

the quality of educational services that an institution provides to its students32 or

require the court to evaluate educational and pedagogical factors or administrative

policies.33 In particular, Minnesota law rejects claims against educational

institutions however they are stated-whether as breach ofcontact, fraud or

31 Smith v. Argosy Educ. Group, Inc., No. A08-0222, 2008 WL 4977598, at *1(Minn. Ct. App. Nov. 25, 2008); Alsides v. Brown Inst., Ltd., 592 N.W.2d 468,473 (Minn. Ct. App.1999).

32 Alsides, 592 N.W.2d at 472.

33 Smith, 2008 WL 4977598, at *1; Redden v. Minneapolis Cmty. & Tech. Coll.,No. A03-l202, 2004 WL 835768, at *5 (Minn. Ct. App. Apr. 20, 2004); Alsides,592 N.W.2d at 473. Educational malpractice claims raise a host of policyproblems, including "(1) the lack ofa satisfactory standard of care by which toevaluate an educator; (2) the inherent uncertainties about causation and the natureofdamages in light of such intervening factors as a student's attitude, motivation,temperament, past experience, and home environment; (3) the potential for a floodof litigation against schools; and (4) the possibility that such claims will 'embroilthe courts into overseeing the day-to-day operations of schools." Alsides, 592N.W.2d at 472.

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negligent misrepresentation-where "the claim would ... involve an inquiry into

the nuances of educational processes and theories/,34

Zinter's claims are based on her advisor directing her to take two courses

before proceeding to prepare her Final Project. Zinter-as an MLS student-

needed her advisor to review and approve her course program and to approve her

enrollment in the Final Project seminar.35 Zinter's claims directly challenge the

academic judgment ofZinter's advisor with regard to what coursework should be

approved and what coursework Zinter needed to complete to successfully prepare

for her Final Project. Zinter alleges as follows:

At the time that [Zinter's academic advisor] insisted that Zinter takeand pay for these two additional courses, [Zinter's academicadvisor] informed Zinter that her idea for her final project was notdeveloped and that the two courses should or would assist her in thatregard.36

Zinter alleges she apparently disagreed with Professor Johnson because of the

following:

It was Zinter's intent to combine the fields of sociology (herundergraduate major) with the field of architecture in her finalproject. Prior to being directed to take [the Greek Architecturecourse], Zinter had completed work and written papers within theMLS Program concerning architecture.37

34 A/sides, 592 N.W.2d at 473 (internal quotations omitted); accord Smith, 2008WL 4977598, at *1; Redden, 2004 WL 835768, at *5.

35 Respondents' Appendix at 38; 41-42 (Aff. of10 Ellen Lundblad, Ex. D, pp. 3­4).

36 Appellant's Appendix at 003, ~ 12.

37Id. at 003, ~ 13.

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The wrongful act alleged is the dir~ction to take the two classes to prepare for the

Final Project.38

As the District Court correctly found, Zinter's claims would require inquiry

into the academic judgment and the "educational processes and theories" of the

University. The fallacy ofZinter's claims (as recognized by the District Court) is

the suggestion that the MLS program (or probably any graduate program

culminating in a thesis-type project) is purely a numbers game-take any courses

that add up to 30 credits and write a project and you are done. The MLS

program-as is plain from the documents describing the program-is not simply a

numbers game in that sense. Working with an advisor to ensure an appropriate

program and to ensure readiness for the Final Project is an essential aspect of the

program. In this case Zinter's advisor did not believe Zinter's coursework was

sufficient to complete the Final Project and earn the MLS degree. That is a matter

ofacademic judgment; Zinter disagreed with this judgment, but that disagreement

is simply not a matter for judicial review.39

38 Id. at 005-006, ~~ 30, 38.

39 Respondents also argued to the District Court that dismissal of the non-statutoryclaims would be appropriate based on Zinter's failure to exhaust administrativeremedies and based on lack ofjurisdiction. Zinter was required to exhaust heradministrative remedies-which the University provides through, among otherthings, an academic grievance policy. Then, at the end of that process, theexclusive avenue ofappeal would be have been by writ of certiorari to this Court.The District Court did not address these issues. Respondents continue to assertthat the appropriate avenue for any appellate review was writ of certiorarifollowing administrative remedies. However, they do not believe it essential for

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II. The District Court correctly dismissed the Section 1983 claims becausethe requested relief was not available as a matter of law.

A. Zinter's request for monetary relief is a request for damages.

The District Court correctly rejected Zinter's efforts to bring a claim for

damages under 42 U.S.c. § 1983.40 The United States Supreme Court has held

that "neither a State nor its officials acting in their official capacities are 'persons'

under § 1983" when sued for damages.41 Because the University is an "arm ofthe

State" and is entitled to Eleventh Amendment immunity, an action by Zinter

against the University or one of its officials for damages is barred.42

Zinter does not deny this law, but seeks to avoid it by labeling her request

for monetary recovery as a request for injunctive relief, rather than as one for

damages.43 A label, though, is not dispositive. As this Court has said, courts must

examine the "under!ying nature of the relief sought," to determine whether a

particular type of relief sought is avai1able.44

this Court to address the issue since Zinter's claims in any event fail as a matter oflaw.

40 Appellant's Addendum at 016.

41 Will v. Michigan Dept. ofState Police, 491 U.S. 58, 71 (1989).

42 See Raygor v. Regents ofUniv. ofMinnesota, 534 U.S. 533, 535 (2002);Trevelen v. Univ. ofMinn., 73 F.3d 816,819 (8th Cir. 1996).

43 Appellant's Appendix at 020.

44 Mitchell v. Steffen, 487 N.W.2d 896, 905 (Minn. Ct. App. 1992) (emphasis inoriginal); see also Honan v. Cty. ofCottonwood, 2005 WL 2077277 (Minn. Ct.App. 2005), at *3.

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Here, Zinter seeks money-not simply money as a refund for the two

classes she claims she should not have needed to take, but money amounting to all

fees she has paid the University throughout her graduate career. In other words,

she wants the University to pay her money for classes in which she enrolled,

participated, and earned credit--elassesfor which the University expended

resources to provide her an education. The remedy she seeks is not simply one for

equitable relief.45

This Court's decision in Mitchell v. Steffen provides the framework for

analysis here and shows the narrow circumstance in which a request for monetary

relief can be considered one for injunctive relief.46 Mitchell involved a challenge

to a law creating a time requirement before Minnesota residents could receive

general assistance and work readiness benefits.47 The plaintiffs sought retroactive

payment ofbenefits that they would have received had the statute not been

amended.48 The State was being compelled to perform as it would have performed

ifnot for an unconstitutional statute. The plaintiffs were being put in the "same

45 The funds Zinter seeks would be paid from the budget of the University andsuch relief would interfere with the fiscal autonomy of the University ofMinnesota, a branch of the state, which is precisely the type of relief that is barredby the Eleventh Amendment. See Jagnandan v. Giles, 538 F.2d 1166, 1176 (5thCir. 1976).

46 487 N.W.2d 896, 906-07 (Minn. St. App. 1992).

47Id. at 899.

48 Id. at 905.

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position they would have been in" but for the unconstitutional statute. 49 As a

result, the Court of Appeals detennined that the plaintiff's request was not a

request for money damages, but rather a request for equitable relief in the fonn of

specific perfonnance and therefore not barred by the Eleventh Amendment.50

As the District Court corrected noted, differences between Mitchell and

Zinter's case are "glaring.,,51 Zinter is not asking to be put in the place where she

would have been ifnot for the alleged wrongful act (the requirement to take two

additional classes). She is asking for money she would not have received

regardless of her academic advisor's judgment. There is no entitlement involved

in this case, unlike in Mitchell. Zinter was not entitled to the money she is seeking

or, for that matter, to a degree. Zinter's claim for relief, unlike the claim in

Mitchell, is for money damages and therefore is barred by the Eleventh

Amendment.

Zinter, in her brief to this Court, does not mention Mitchell, but instead

cites to general cases discussing restitution and damages. These cases do not

support her position. As Zinter notes, restitution or unjust enrichment only applies

where a defendant retains a benefit without paying for it.52 Here, that element is

not satisfied. The University provided a benefit to Zinter and the University

49 Id. at 907.

sOld.

51 Appellant's Addendum at 018.

52 Acton Constr. Co. v. State, 383 N.W.2d 416,417 (Minn. Ct. App. 1986).

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expended resources in providing this benefit. As the District Court correctly

reasoned:

Even assuming that Defendants' decision to require Zinter to taketwo additional courses was arbitrary and motivated by bad faith,Zinter paid tuition to take the courses (and all courses prior to thealleged due process violations) and the University enrolled her inthose courses. There is nothing wrongful about the University'sretention of tuition money in this case.53

Even if cases generally discussing restitution and injunctive re1iefwere relevant

(which they are not), they would not support Zinter's claim.

Zinter request for monetary relief can only be considered a request for

damages. The District Court should be affirmed.

B. The District Court correctly concluded that it did not haveauthority to order the University to change Zinter's transcript.

Zinter also asked the District Court to remove an "F" from her transcript.

Zinter earned the failing grade because she made the decision to stop attending

one of the classes that her advisor had directed her to take.54 The District Court

rejected her request because it would require improper intrusion into the academic

judgment of the University.55

This Court has observed that "Courts have historically deferred to the

decisions of academic institutions on the academic achievements or failures of

53 Appellant's Addendum at 017.

54 [d. at 013.

55 [d. at 019.

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their students.',56 "[C]ourts will ordinarily defer to the broad discretion vested in

public school officials and will rarely review an educational institution's

evaluation of the academic performance of its students."57 Where academic

determinations are III question, due process protections are less appropriate

because a hearing IS not the appropriate method to evaluate the academic

performance of a student.58 "A graduate or professional school is . . . the best

judge of its students' academic performance and their ability to master the

required curriculum.,,59

Here, Zinter asks that the Court intrude into the academic judgment of the

University-both in tenns of the ultimate grade as well as the decision of Zinter's

advisor to direct her to take the course. She does so without claiming the grade

was imposed in an arbitrary or capricious manner and without claiming that she

was deprived of a significant liberty or property interest in the imposition of the

grade.6o Instead, she simply wants the District Court to order the University,

contrary to its policy, to remove the "F" from her transcript and to substitute the

56 Ross v. Univ. o/Minn., 439 N.W.2d 28,33 (Minn. Ct. App. 1989).

57 Greenhill v. Bailey, 519 F.2d 5, 7 (8th Cir. 1975); see also A/sides, 592 N.W.2dat 472.

58 Abbariao v. Hamline Univ. Sch. o/Law, 258 N.W.2d 108, 112 (Minn. 1977).

59 Greenhill, 519 F.2d at 9 (citations omitted).

60 In limited circumstances, a court will review whether due process has beenfollowed where these are the allegations. Abbariao v. Hamline Univ. Sch. 0/Law,258 N.W.2d 108, 112 (Minn. 1977). But these are not Zinter's allegations.

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Court's judgment for that of Zinter's academic advisor. Notably, she does not

request any additional process-she simply wants the "F" grade removed. The

District Court properly determined that this was an inappropriate request.

In support ofher request, Zinter cites one case, University ofTexas Medical

School v. Than. 61 Than is a Texas state court decision involving a medical student

charged with academic dishonesty. In Than, the student was given an "F" in a

course after allegedly cheating on an exam.62 The court determined that the

student's due process rights were violated during investigation of the charge and

ordered removal of the grade from the student's transcript pending a new hearing

on the academic dishonesty charge.63

Than does not support Zinter's theory. Than involved a failing grade that

resulted from a disciplinary matter.64 "Courts have invoked different protections

for disciplinary and academic expulsions.,,65 Disciplinary expulsions may result in

numerous due process safeguards.66 However, judicial interventions are less

appropriate for academic deficiencies, because an adjudicative hearing will not

61 901 S.W.2d 926 (Tex. 1995).

62 Id. at 928.

63 Id. at 934.

64 Id. at 931.

65 Abbariao v; Hamline Univ. Sch. ofLaw, 258 N.W.2d 108, Il2 (Minn. 1977).

66 Id. at 112.

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determine whether a student's educational performance was unsatisfactory.67

Further, the Court's removal of the "F" in Than was expressly subject to further

process. Zinter does not seek further process; instead, she wants a grade removed

from her transcript permanently.

Zinter's requested removal of the grade from her transcript is not an

available remedy in this case and the District Court's determination on this point

should be affirmed.

CONCLUSION

The judicial system is not the place for debate about academic judgment.

Here, Zinter's claims would put this Court in precisely that place-deciding

whether Zinter was or was not adequately prepared to prepare a Final Project

about architecture. The University's MLS graduate program clearly and expressly

places in the hands ofacademic advisors the role ofdetermining adequacy of

course programs both for enrolling in the Final Project seminar and for graduation.

Zinter's advisor properly performed this role. It is not the role of the courts to

second-guess this academic judgment. The University and President Bruininks

ask that the District Court's dismissal ofZinter's claims be affirmed.

67 Id.

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Dated: January 19,2010

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Respectfully submitted,

MARK B. ROTENBERGGeneral CounselUniversity 0 innesota

BY__~:::"-~~->J- _

Brian J. Slovut (# 236846)Associate General Counsel360 McNamara Alumni Center200 Oak Street SEMinneapolis, MN 55455-2006(612) 624-4100

Attorneys for Respondents

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Certificate of Brief Length

I hereby certify that this brief conforms to the requirements of the Minn. R.

Civ. App. P. 132.01, subd. 3, for a briefproduced with a proportional font of 13 pt.

The length of the brief is 3,264 words. This briefwas prepared using Microsoft

Office Word 2003 software.

Dated: January 19, 2010

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Respectfully submitted,

MARK B. ROTENBERGGeneral CounselUniversity of Minnesota

By-----'--7#~~----T---<--------Brian J. S ovut ( 36846)Associate General Counsel360 McNamara Alumni Center200 Oak Street SEMinneapolis, MN 55455-2006(612) 624-4100

Attorneys for Respondents

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