KERN, Associate Judge:
Appellant unsuccessfully sought in the trial court to recover damages from Howard University incurred, he alleged, because the University proceedings followed in determining a charge of misconduct against him were improper.
Appellant, a student enrolled in appellee's college of medicine, was accused of cheating on an examination he took during the spring of his sophomore year. The University's System of Judiciaries and Code of Conduct (Code) establishes a two-tier system of panels to hear and act upon allegations of student misconduct, including cheating. The Judiciary Board conducts a trial-type proceeding where testimony and
The Judiciary Board heard the charge against appellant during June 1973, but one of the four student members had by that time graduated and another student member was not present. Appellant's counsel objected to the Board then proceeding but the Chairman overruled him and the witnesses and other evidence were presented. Four members of the Board found appellant guilty of cheating, one abstained from voting and the remaining member present voted in favor of appellant. The Board recommended appellant's indefinite suspension.
Appellant sought Board of Appeals' review of the Judiciary Board's decision. Prior to the commencement of the Board of Appeals' proceedings, appellant objected to its membership composition since one of the four student members was absent. His objection was overruled and the Board of Appeals then denied the request of appellant's counsel to recall witnesses who had appeared at the initial hearing before the Judiciary Board. The appeal was argued on the basis of the record established before the Judiciary Board. The Board of Appeals upheld by a vote of six to one the Judiciary Board's determination of guilt. However, the Board modified the penalty from indefinite suspension to suspension for one year and applied this suspension to the 1973-74 academic year.
Following the Board of Appeals' adverse decision, appellant initiated suit against appellee, alleging that the "hearing conducted by the Judiciary Board was in contravention of the rules and provisions governing such proceedings." He sought, inter alia, $100,000 in damages and injunctive relief from his suspension for cheating. Appellant's requests for a temporary restraining order and a preliminary injunction were heard and denied. Meanwhile, appellant was readmitted to the medical college for the fall term beginning in August 1974. Because of the earlier finding of cheating, appellant's reenrollment was with the understanding that he was on academic probation and subjected him to two conditions: that he (1) repeat his entire sophomore year, and (2) be subject to dismissal for failure of any one of his courses. After his reinstatement, appellant failed four subjects and his enrollment was terminated during January 1975, one semester after his readmission on probation.
When appellant's case against the University came to trial, counsel and court agreed that the merits of the cheating charge would not be retried; rather, they settled on the issues to be resolved as (1) whether or not the university bodies which heard and determined the cheating charge against appellant were properly constituted, and (2) assuming not, whether their finding of cheating on his part constituted such a stigma as to have caused his failure after he was readmitted for the 1974-75 academic year. The court, after hearing testimony, concluded that appellant "had been afforded a fair hearing" and "any defect
We have no occasion to consider the correctness of the trial court's second and third conclusions. We rest our decision of affirmance on a different ground than the trial judge: that the Judiciary Board and the Board of Appeals were not so deficient in composition as to invalidate their decisions.
We understand appellant's argument to rest on the proposition established by Basch v. George Washington University, D.C.App., 370 A.2d 1364, 1366 (1976), that a contractual relationship exists between a university and its students.
We said in Basch, supra at 1367, a case raising the construction of a student-university contract, that "the document itself must be viewed as a whole" and "the court should view the language of the document as would a reasonable person in the position of the parties."
We note that "the document itself" in the instant case, viz., the Code, is abbreviated in nature; it does not purport to establish university disciplinary procedures with the particularity of a criminal code, and it does not specify the mechanics of the hearing process or state what constitutes a quorum. The Code is silent concerning removal or replacement of members of the Board who refuse to attend, are no longer enrolled in the University, or are themselves accused of misconduct. Appellant's interpretation, which would require every member of the Judiciary Board to be present before it could proceed, is likely to generate excessive delay — wholly contrary to the intent of the System of Judiciaries.
There is another reason why we must reject appellant's contention that by proceeding without all eight Board members the University breached its contract, viz., the Code. A fair reading of the record
Similarly, we conclude in the instant case that the usual disciplinary procedure and practice of the Judiciary Board in effect at the time of the formation of the contract between Howard University and appellant, viz., hearing and determining a case without a member who has graduated, effectively constituted a part of their agreement.
Appellant also argues that the University breached its contract because the Board recommended his suspension in the face of a provision in the Code that such penalty may be recommended by "majority vote of the membership" and only four members voted to suspend. However, as we have pointed out, the membership of the Board in June 1973 was but seven and hence the four who voted to suspend appellant did constitute a "majority" as prescribed by the Code.
Appellant advances at some length an argument on the sufficiency of the evidence adduced at the Board's hearing to support the cheating charge but this argument was waived in the trial court and hence it is not properly before us.
The Code also provides that "the Board of Appeals, in all instances shall be composed of four faculty members and four students."
Although there is no comparable requirement expressly applying to the appointment of Board members who serve during the regular academic year, it seems logical to conclude that enrollment in the university is a prerequisite to Board membership. To conclude otherwise would produce the unreasonable result that a non-student could sit on a Board in the fall and spring semesters, but not during the Summer Session. As a result, we are of the opinion that the provisions of the Code limit membership on the Boards to students who are currently enrolled in the University. This conclusion is fatal to appellant's argument that under the Code, a penalty could be imposed only by a majority vote of the eight members of the Board. Appellant contends that since the Code expressly provides the Judiciary Board may impose a penalty "by majority vote of the membership," this means a majority not of the members present who constitute a quorum, but a majority of the eight voting members. However, since the "membership" of the Board can consist only of students enrolled in the university and since the Code is silent regarding the replacement of duly appointed members, we conclude that the "membership" of the Board, at the time the appellant's case was heard, consisted of only seven members since the eighth member had graduated from the university and was no longer eligible to serve. As a result, appellant was properly penalized by indefinite suspension even under a literal meaning of the phrase "majority of the membership" which he urges upon this court since the "membership" consisted of seven members and four voted to suspend.