Taking it back

Today, when I attend meetings and speak with colleagues, one topic that often comes up is the character of today’s younger practitioners. Some observations concern competency. I often hear that dental school graduates today seem to come out learning less than what they learned years ago, that these graduates are not as prepared, that their ethical tenor is less than desired, that the degree of “gradeflation” is absurd, and so on. Obviously, this does not apply to most graduates, but it applies to enough to cause concern among many elders in our clan. As I read the case below, I couldn’t help but be brought back to a number of conversations and, if truth be told, to a number of personal encounters and situations that echoed these concerns. I caution all readers that I’m not painting with a broad brush but, rather, expressing concerns espoused by some about a few who unfortunately cause a certain reflection to be cast across many.

The plaintiff in this case, Powers v. St. John’s University School of Law , NY Slip Op 02799 (NY Ct. App. 4/2/15), applied to law school. One question on the application read, “Have you ever been charged with, pleaded guilty to, or been found guilty of any crime, offense, or violation (other than a minor traffic violation), or is any such action pending or expected to be brought against you? If yes, please explain in a supplementary statement or electronic attachment the relevant facts, including the nature of the offense, the dates and courts involved, and the penalty imposed, if any. Note: Although a conviction may have been sealed or expunged from the record by an order of the court, it nevertheless should be disclosed in answer to this question.”

The plaintiff wrote a 3-page explanation about having used drugs and having been stopped by the police; he pleaded guilty to possession, underwent rehabilitation, and completed a period of probation. Although all of this was true, he did not disclose that he was also charged with possession of a number of drugs with intent to distribute, possession of drug paraphernalia, and other less minor charges. In short, he disclosed what he convicted of but not everything he was charged with.

Regardless, he was admitted to law school and was by all accounts a decent and successful student. Three semesters into his degree program and while studying abroad on a leave of absence, he planned to seek an advance ruling from the Character and Fitness Committee of the New York Bar regarding his future application for entrance to the bar, so he wrote to the dean of his law school asking whether he could receive a letter of support in the future. In his request for the letter of recommendation, he disclosed the charges that were not disclosed in his law school application. The dean responded that since he did not disclose this information in his original application, a letter of support would not be forthcoming. As things progressed, the school advised the student that it was considering whether some type of disciplinary action was required because of the omissions in his original application; one option was rescission of his admission. The student responded that when he applied, he had consulted with an attorney who advised him that his disclosures were sufficient, and that everything he disclosed was truthful. He was then offered the option of amending his application but decided that his original disclosures were absolutely truthful, and that nothing more needed to be disclosed. The school subsequently rescinded his admission, resulting in this lawsuit.

In its decision, the appellate court noted that courts generally have a limited or restricted role when they review determinations of institutions of higher education, particularly when they deal with academic and administrative aspects as opposed to disciplinary ones. A university’s findings “will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one’s sense of fairness.”

The school, it seems, had an unwritten policy that although it might admit students who have used or possessed drugs, it did not accept students who sell them. The court noted that schools are allowed such honest policies of discretion. As to the informality of the policy, the court noted that

It is not necessary that the policy be in writing for the school to apply the policy. It would be untenable for courts to require that every factor that is taken into consideration during the admission process be reduced to writing. Further, the law school’s response to [the plaintiff’s] belated disclosure was not arbitrary or capricious, given that [he] was on notice, based on the electronic certification that he submitted with his application, that the failure to provide truthful answers to the questions could result in denial of admission, dismissal, or rescission of an awarded degree from the school.

In addition, the court found that the school did not fail to follow its own rules and procedures as claimed by the plaintiff according to the guidelines in the student handbook. The court noted that those guidelines related to academic issues and did not apply to preadmission concerns. Lastly, the court addressed the issue of whether the penalty was disproportionate to the misconduct so as to shock one’s conscience. The application itself alerted the applicant about the potential consequences for not fully disclosing the requested information. The rescission was upheld.

Commentary

I discuss this case because for the last half of my career, having transitioned from full-time practice to full-time academia, I have been dealing with issues relating to student veracity both before and after admission. In addition, through my travels, I have met with hundreds of practitioners, academicians, and administrators who have expressed concerns about the character of those entering our profession. Although most of our discussions have centered around the predoctoral setting, some issues have dealt with our postgraduate programs.

Those directors running orthodontic residency programs, whether DDS, MS, or certificate programs, have an awesome responsibility. We are the gatekeepers. We are the ones who allow our graduates to go out in society, practice their chosen profession, care for and protect those who seek our services, represent both our institutions and our profession to society, and in reality tell all that a graduate of our program is fit in terms of character and competence to be granted a license, specialty permit, or certification. In all honesty, I don’t believe we do all we can. We are quite good but not perfect, and we can and should do better.

It’s now time to wash my dirty laundry in public. I found out just recently that I was scammed, twice, many years ago, by applicants who sold me and my interview committee a bill of goods about themselves during the admission process that frankly did have an impact on my ultimate decision to accept them. Shame on me for being so gullible. I now have in my application a paragraph that says that if it is discovered that an applicant lied or misconstrued any material information related to the questions asked on the application, regardless of his or her performance in the program or how far along into the program, the person will be immediately terminated. Prospective residents must acknowledge this paragraph with their signature.

At one of my previous facilities, I discovered about halfway into the program that a resident had lied about a material issue pertaining to professional character and fitness. At that point, I wanted to dismiss this person from the program. The legal department wouldn’t allow it. As it turned out, this person has had several run-ins, both civil and administrative, since beginning practice. No surprise. Clocks can’t be turned back; bells can’t be unrung. Unfortunately, I know I’m not alone. I have had the pleasure (or displeasure, depending upon your perspective) of speaking with others in my position, and many of them relate similar stories. Again, it is nowhere near rampant, but it happens often enough to be disconcerting. The question, of course, becomes whether it is an issue of the caliber of student we have today, or an issue, after having discovered a person’s shortcomings, of not having the intestinal fortitude to deal with the prospective headache. Does this issue stem from the personal character of some of today’s students or does it have to do with institutions that are so averse to possible negative publicity that they shirk their responsibility of prudent gatekeeping? How egregious does an incident have to be, and must it involve patient safety or an unsafe work environment to rise to the level at which something will be done? I don’t know. I just know that I’m concerned. I’m concerned for my program, concerned for my institution, and concerned for the public fiduciary responsibility I carry.

Don’t misread what I have said. Currently, I am unaware of any such issues; for all of you residents out there who want to scream “How dare you accuse me,” I’m not. I’m talking about a small problem that some of us must face every now and then. Just remember that the courts will generally support us. They have to. We know best. We just have to act like the gatekeepers we are supposed to be.

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Apr 6, 2017 | Posted by in Orthodontics | Comments Off on Taking it back
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