Draft Legislation on
Assignment of Grades
The following memorandum and draft legislation were written by Professor Dwight Aarons, UT College of Law, and were discussed by the Senate Executive Committee on April 23, 2001. On May 7, 2001, the Faculty Senate endorsed legislation like the draft proposal.
This proposed law is designed to reverse Parate v. Isibor, 868 F.2d 821 (6th Cir. 1989). In that case the United States Court of Appeals for the Sixth Circuit, issued a ruling in a case involving a professor at a Tennessee public university. The court decided that "the assignment of a letter grade is symbolic communication intended to send a specific message to the student, [thus] the individual professor's communicative act is entitled to some measure of First Amendment protection." Id. at 827. The Sixth Circuit also wrote that an instructor "has no constitutional interest in the grades which his students ultimately receive." The court essentially suggested that school officials can unilaterally change a student's grade, without notifying the instructor. Id. at 829. Thus, under Parate, an instructor's use of grades to communicate his or her view of that student's performance, in the course, can be muted when administrators change those grades, without notifying the instructor.
This law responds to Parate. It outlines grade appeal changes. It provides that grades may be appealed through established grade appeals procedures, as provided at each university. To the extent that the grade appeal is eventually determined by an administrative official or governing board at the university, this proposal states that, when practicable, the teacher who assigned the grade is to be given an opportunity to state the reasons why the challenged grade was given. It also requires that the need for grade changes be established by clear and convincing proof.
AN ACT to amend Tennessee Code
Annotated, Title 49, Chapter
7, relative to appeals of
grades at public universities.
AN ACT to amend Tennessee Code Annotated, Title 49, relative to postsecondary education in Tennessee.
WHEREAS, in Parate v. Isibor, a decision of the United States Court of Appeals for the Sixth Circuit, ruled that a university professor has free speech rights to assign grades according to his or her own professional judgment;
WHEREAS, that same decision stated that a university professor does not have a constitutional interest in the grades that his or her students ultimately receive;
WHEREAS, the General Assembly "recognizes the inherent value of education and encourages its support," Tennessee Constitution Article 11, Section 12;
WHEREAS, the following statute created by this act is the General Assembly's response to the Parate decision; now, therefore,
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. By enacting this law, it is the intent of the General Assembly to reaffirm the academic integrity of grades assigned by teachers at public universities within Tennessee.
SECTION 2. (a) When grades are given for any course of instruction taught at a public university, the grade given to each pupil shall be the grade determined by the teacher of the course and the determination of the pupil's grade by the teacher, in the absence of clerical or mechanical mistake, fraud, bad faith, physical disability, shall be final. If the teacher becomes medically or physically unable to assign grades, the university may make reasonable accommodations for the assignment of grades for the course. A student may appeal any grades awarded through established grade appeals procedures at the university.
(b) In deciding an appeal of a student's grade, administrative officials of the university, or the university's governing board, shall not order the student's grade to be changed unless the teacher who determined such grade is, to the extent practicable, given an opportunity to state orally, in writing, or both, the reasons for which such grade was given and is, to the extent practicable, included in all discussions relating to the changing of such grade.
(c) Notwithstanding the above, grades given by a teacher at a university can be changed by administrative officials of the school, or the university's governing board, only upon a showing of clear and convincing proof that the grade given by the teacher is not a reasonable exercise of professional judgment. A teacher's professional judgment in assigning a course grade includes considering the quality of the student's work and other factors that the student has been reasonably informed are relevant, including possible honor code violations.
SECTION 3. This act shall take effect July 1, 2001, the public welfare requiring it.
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