Doe v. Board of Regents

John D oe , appellant, v. BoarD of regents of the
University of neBraska et al ., appellees.
809 N.W.2d 263
Filed February 17, 2012. 	No. S-11-214.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Judgments: Appeal and Error. An appellate court will affirm a lower court’s
ruling which reaches the correct result, albeit based on different reasoning.
4. Colleges and Universities. Deference should be given to the substantive decision
to dismiss a medical student for academic reasons.
Appeal from the District Court for Lancaster County: JoDi
nelson, Judge. Affirmed.
John Doe, pro se.
Amy L. Longo and George T. Blazek, of Ellick, Jones,
Buelt, Blazek & Longo, L.L.P., for appellees.
heavican, c.J., connolly, MccorMack , and M iller-lerMan,
JJ., and sievers and Moore , Judges.
M iller-lerMan, J.
NATURE OF CASE
John Doe filed a lawsuit arising from the termination of his
enrollment as a medical student at the University of Nebraska
Medical Center (UNMC) College of Medicine against the
Board of Regents of the University of Nebraska (Board of
Regents), UNMC, and the following UMNC faculty members
in each individual’s official and individual capacities: John
Gollan, M.D., Ph.D.; Robert Binhammer, Ph.D.; Jeffrey Hill,
M.D.; Gerald Moore, M.D.; David O’Dell, M.D.; Wendy Grant,
M.D.; Sharon Stoolman, M.D.; and Michael Spann, M.D. (col-
lectively defendants). The amended complaint filed December
21, 2009, is the controlling complaint.
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Cite as 283 Neb. 303
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

During the pendency of the case, all causes of action except
the claim for breach of contract were dismissed. The defend-
ants filed a motion for summary judgment as to the remaining
contract cause of action. On February 17, 2011, the district
court for Lancaster County determined that Doe’s dismissal
was not in violation of the October 3, 2006, contract regarding
the conditions of his continued enrollment. The district court
sustained the defendants’ motion for summary judgment and
dismissed Doe’s cause of action for breach of contract, thereby
dismissing the case. Doe appeals. Because we determine that
the district court did not err when it sustained the defendants’
motion for summary judgment, we affirm.
STATEMENT OF FACTS
This is Doe’s second appearance before this court in con-
nection with his dismissal from UNMC. In addition to the two
state cases, Doe filed an action in the U.S. District Court for
the District of Nebraska, which was dismissed without preju-
dice on October 27, 2010. The current case concerns only a
breach of contract claim. In Doe v. Board of Regents, 280
Neb. 492, 788 N.W.2d 264 (2010) (Doe I), this court treated
the breach of contract claim alleged therein as a reformulation
of his due process claims and affirmed the dismissal of Doe’s
breach of contract claim as alleged therein. In Doe I, Doe did
not rely on the October 3, 2006, agreement, whereas in the
present appeal, he relies on the October 3 document, discussed
below. Although the current breach of contract claim has not
been previously considered by this court, certain facts and legal
principles are common to both cases. Accordingly, we make
reference to Doe I as it relates to the jurisprudence applicable
to this case.
Doe began his enrollment as a medical student at UNMC in
the 2003-04 academic year. During Doe’s second year of medi-
cal school, UNMC granted Doe a leave of absence from school
to receive treatment for depression, insomnia, and anxiety.
In the fall of 2005, Doe returned to UNMC and began
his third year of medical school. During his third year, Doe
received failing grades in his internal medicine clerkship and
his obstetrics and gynecology clerkship. He also received a
304 	283 NEBRASkA REPORTS

near-failing grade in his pediatrics clerkship. Doe appealed his
obstetrics and gynecology grade, which was upheld by both the
obstetrics and gynecology department and UNMC. Doe did not
appeal his pediatrics clerkship grade or his internal medicine
clerkship grade. He alleges that O’Dell told him that his fail-
ure of the “NBME shelf exam,” one component of his internal
medicine clerkship grade, was not appealable and resulted in
an automatic failure of the clerkship.
In July 2006, Hill, the associate dean for admissions and stu-
dents, and Binhammer, the chair of the Scholastic Evaluation
Committee (SEC), met with Doe to discuss his academic per-
formance. The SEC had determined that Doe would have to
repeat his third year of medical school. The SEC presented a
contract to Doe that set forth terms for Doe’s continued enroll-
ment at UNMC. Doe did not sign this contract, and the matter
was referred to the SEC for further consideration.
On October 3, 2006, the SEC held its regular meeting and
placed Doe’s academic issues on the agenda. Doe attended
this meeting, and the SEC again presented him with a contract
for continued enrollment. This time, the proposed contract
contained a “professionalism clause,” which stated: “I under-
stand that any ratings of −2 or below on the professionalism
ranking system, coupled with any negative comments con-
cerning professional behavior, on any required clerkship or
senior elective will be grounds for termination of enrollment.”
Doe signed this contract, and the SEC permitted Doe to con-
tinue his enrollment under the terms and conditions expressed
in the October 3 contract. Throughout this case, the “rating”
encompassed in the expression “ratings of −2 or below on
the professionalism ranking system” has been referred to as
the “checklist” and the expression “comments concerning
professional behavior” has sometimes been referred to as
an “evaluation.”
In the fall of 2006, Doe was completing his surgery clerk-
ship. During this time, Doe developed an umbilical hernia. Doe
scheduled a surgery to repair the hernia for the afternoon of
October 20, 2006. On the morning of October 20, all third-year
medical students on surgery clerkship were scheduled to take
the required surgical shelf exam.
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Doe did not take the surgical shelf exam. Before the exam,
Spann required Doe to participate in patient rounds, beginning
at 6:30 a.m. Spann released Doe from rounds early so that Doe
could take the surgery shelf exam. After rounds, Doe met with
Grant, who was the associate director of medical student clerk-
ships in the department of surgery. Grant gave Doe the option
of taking the surgical shelf exam that morning or postponing
the exam until after his pediatric clerkship, which would be
several weeks later. Doe chose to postpone his exam. Grant
informed Doe that she would review this decision with Hill or
the SEC, because not taking the shelf exam would result in an
incomplete or a failure grade for the rotation.
On November 7, 2006, the SEC held its regular meeting
and again placed Doe’s academic issues on its agenda. Doe
was notified of the meeting, and he attended. At the meeting,
the SEC determined that Doe violated the October 3, 2006,
contract for continued enrollment and recommended the ter-
mination of Doe’s enrollment at UNMC. By a letter from the
SEC dated November 7, 2006, Doe was notified of the SEC’s
decision and was informed of his right to appeal.
Doe timely appealed the SEC’s decision to the “Appeal
Board.” On December 19, 2006, the Appeal Board reviewed
evidence and decided that dismissal was indicated. By a let-
ter dated December 19, 2006, Gollan, the dean of the UNMC
College of Medicine, agreed with the Appeal Board’s decision
and terminated Doe’s enrollment at UNMC. Doe requested fur-
ther review of the decision, but none was granted.
The present case is the second of three lawsuits Doe has filed
regarding the termination of his enrollment at UNMC. The first
two cases were filed in state court and the third was filed in
federal court. Doe filed his first lawsuit in the district court
for Douglas County against the Board of Regents, UNMC,
and UNMC faculty members. This case resulted in Doe I. Doe
sought damages for fraudulent concealment, alleged violations
of his constitutional rights, and breach of contract. In that suit,
the district court for Douglas County dismissed with prejudice
Doe’s complaint against the UNMC faculty members in their
individual capacities, because Doe did not perfect service. The
court also dismissed with prejudice Doe’s complaint against
306 	283 NEBRASkA REPORTS

the Board of Regents, UNMC, and the UNMC faculty mem-
bers in their official capacities. The court determined that Doe
failed to state a claim for which relief can be granted or that his
claims were barred by sovereign immunity.
Doe appealed the district court’s decision to this court.
In Doe I, this court affirmed in part, reversed in part, and
remanded for further proceedings. This court concluded that
Doe failed to state a claim for relief on his claims of fraudulent
concealment, violations of due process, and breach of con-
tract and affirmed the district court’s decision in this regard.
However, this court concluded that the district court erred
when it dismissed Doe’s lawsuit against the UNMC faculty
members in their individual capacities without determining
whether service by certified mail on the risk manager of
UNMC was reasonably calculated to notify the members, in
their individual capacities, of the lawsuit. This court also con-
cluded that the district court erred when it dismissed Doe’s
claims under the Americans with Disabilities Act of 1990 and
the Rehabilitation Act against the Board of Regents, UNMC,
and the faculty members in their official capacities, based on
our conclusion that the Americans with Disabilities Act of
1990 abrogates 11th Amendment immunity for title II claims
against the State.
Doe filed the third lawsuit stemming from his termination
as a medical student at UNMC in the U.S. District Court for
the District of Nebraska, in case No. 8:10CV85, against the
Board of Regents, UNMC, and UNMC faculty members. Doe
filed a motion to dismiss that case on October 1, 2010, and
the federal district court dismissed it without prejudice on
October 27.
In the present case, Doe filed the initial complaint in the
district court for Lancaster County against the defendants on
July 31, 2009. On December 21, Doe filed a second amended
complaint, which alleged five causes of action. Doe subse-
quently filed a motion to dismiss his causes of action one
through four, which the district court sustained on September
24, 2010. Therefore, the only remaining cause of action con-
sidered by the district court and this court in the instant appeal
concerns the fifth cause of action, in which Doe alleged that
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the defendants breached the contract of October 3, 2006,
when the SEC determined to dismiss him from the UNMC
College of Medicine without sufficient proof he had violated
its terms.
The contract upon which Doe relies is the October 3, 2006,
document. Doe alleged that under the “professionalism clause”
of the October 3 contract, the SEC could terminate Doe’s
enrollment only if both a “−2 or below” rating on a checklist
and a negative comment concerning professional behavior on
an evaluation were in existence and presented to the SEC at the
time the SEC made its decision. There is no material dispute
that the SEC had a negative evaluation before it. Doe alleged,
however, that the undated “Professionalism Checklist” com-
pleted by Spann upon which the defendants rely, which con-
tained more than one rating below −2, did not exist at the time
the SEC terminated Doe’s enrollment on November 7. Doe
alleged that the defendants breached the October 3 contract
when they dismissed him without proof before the SEC of both
a negative checklist rating and a poor evaluation.
On August 18, 2010, the defendants moved for summary
judgment. A hearing on the motion for summary judgment
was held on December 20. During the hearing, the defendants
offered exhibits that were received, including a “Primary
Clerkship Clinical Evaluation Form” and a Professionalism
Checklist concerning Doe’s surgery clerkship. Spann com-
pleted the Primary Clerkship Clinical Evaluation Form and
the Professionalism Checklist as part of Doe’s plastic sur-
gery clerkship. On the Primary Clerkship Clinical Evaluation
Form, Spann commented that Doe was “often late for rounds,
minimal active participation in [patient] care” and that Doe
was “severely deficient in many areas: knowledge, patient
care, team approach, communication, personal responsibility.”
On the Professionalism Checklist, Spann gave Doe four rat-
ings of −3, one rating of −1, and one rating of “[p]redicted.”
Neither the Primary Clerkship Clinical Evaluation Form nor
the Professionalism Checklist was dated. The defendants con-
tended that this poor evaluation and this checklist estab-
lished Doe’s lack of professionalism and justified the rec-
ommendation of dismissal by the SEC under the October
308 	283 NEBRASkA REPORTS

3, 	2006, 	contract. 	Doe 	questioned 	whether 	the 	checklist
existed on November 7 and was presented to the SEC. Doe
asserts throughout this case that the first time he saw the
Professionalism Checklist was on December 18, which was
after the November 7, 2006, SEC ruling but 1 day before his
hearing with the Appeal Board.
At the hearing on the motion for summary judgment, the
defendants also offered an e-mail from Spann to Grant dated
October 20, 2006, which was received. In the e-mail, Spann
provided a summary of Doe’s performance during his plas-
tic surgery rotation. Spann stated, “[Doe] continually demon-
strated a lack of responsibility to the service and his educa-
tion.” Spann also stated that Doe “has critical weaknesses in
many areas: knowledge base, communication, responsibility,
motivation, and patient care.”
On February 17, 2011, the district court sustained the defend-
ants’ motion for summary judgment and dismissed Doe’s
remaining cause of action for breach of contract. Although
it expressed some doubt whether the October 3, 2006, agree-
ment constituted a contract, the district court nevertheless
proceeded to the merits, stating that the motion for summary
judgment should not be sustained on the basis of an absence
of a contract. Instead, the court found that there was no evi-
dence to support Doe’s claim the checklist was not before
the SEC and that therefore, the defendants did not breach the
contract. The court dismissed all the claims against all the
defendants, including all persons named in their official and
individual capacities.
Doe appeals.
ASSIGNMENT OF ERROR
Doe claims, restated and summarized, that the district court
erred when it granted the defendants’ motion for summary
judgment and dismissed Doe’s remaining cause of action for
breach of contract.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admitted evidence
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show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of
law. Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890,
807 N.W.2d 184 (2011). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.
ANALYSIS
Doe claims that the district court erred when it sustained the
defendants’ motion for summary judgment. Doe contends that
the October 3, 2006, contract ensured his continued enrollment
unless both a negative checklist and a poor evaluation were
presented to the SEC. Doe argues that the Professionalism
Checklist completed by Spann was neither in existence nor
before the SEC at its meeting on November 7 and that there-
fore, the SEC did not have evidence of both checklist “ratings
of −2 or below on the professionalism ranking system” as well
as an evaluation reflecting “negative comments concerning
professional behavior.” Doe asserts that because the SEC did
not have evidence of checklist ratings of −2 or below when it
terminated Doe’s enrollment as a medical student at UNMC,
the defendants breached the October 3 contract of continued
enrollment. We reject Doe’s argument.
[3] As explained below, regardless of whether the checklist
was before the SEC, the negative checklist and a poor evalua-
tion were before the Appeal Board and justified the dismissal.
We believe the district court was in error when it states there
was no evidence to support Doe’s assertion that the Spann
checklist was not before the SEC. To the contrary, there are
inferences supporting Doe’s claim. However, we will affirm
a lower court’s ruling which reaches the correct result, albeit
based on different reasoning. See Tolbert v. Jamison, 281 Neb.
206, 794 N.W.2d 877 (2011) (affirming summary judgment for
reasons different from that of lower court). Although our analy-
sis differs from that of the district court, the district court did
not err when it determined that the defendants did not breach
310 	283 NEBRASkA REPORTS

the October 3, 2006, contract and granted summary judgment
in favor of the defendants.
As an initial matter, we note that there is no issue that Doe
complied with the State Contract Claims Act, see Neb. Rev.
Stat. § 81-8,304 (Reissue 2008), and that his contract-based
case was filed in the district court for Lancaster County, see
Neb. Rev. Stat. § 25-21,206 (Reissue 2008). He was entitled
to pursue his contract cause of action in the district court for
Lancaster County.
Although the district court expressed doubt whether the
October 3, 2006, agreement constituted a contract, neither Doe
nor the defendants challenge the existence or enforceability of
the October 3 contract. It is commonplace to find a contractual
relationship between a public postsecondary educational insti-
tution and a student. See Kashmiri v. Regents of University of
Cal., 156 Cal. App. 4th 809, 67 Cal. Rptr. 3d 635 (2007). We
agree that the October agreement is a contract. Indeed, in Doe I
in dicta, we referred to the October 3 agreement as a “contract”
and distinguished it from the SEC guidelines, which permit an
appeal and allegedly formed an additional “implicit contract
between [Doe] and the Board [of Regents], UNMC, and the
UNMC faculty members in their official capacities.” 280 Neb.
at 532, 788 N.W.2d at 294. The due process feature of the
SEC guidelines, not the October 3 contract, was at issue in the
breach of contract claim in Doe I.
In Doe I, we recognized that with regard to dismissed
medical students, the U.S. Supreme Court has distinguished
between “academic” and “disciplinary” dismissals. See Board
of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S.
Ct. 948, 55 L. Ed. 2d 124 (1978). In Doe I, as in the instant
case, Doe’s claim of wrongful dismissal involves an academic
dismissal. Courts have found that academic decisions made
by universities are given deference. E.g., Bell v. Ohio State
University, 351 F.3d 240 (6th Cir. 2003); Abdullah v. State, 771
N.W.2d 246 (N.D. 2009); Gupta v. New Britain General Hosp.,
239 Conn. 574, 687 A.2d 111 (1996).
[4] In Abdullah, supra, the Supreme Court of North Dakota
concluded that the trial court properly applied deference to
a medical school’s decision to dismiss a student and that
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Cite as 283 Neb. 303

the trial court did not err when it granted summary judg-
ment against the student on his breach of contract claim. In
Abdullah, the student was dismissed from a residency training
program at a public educational institution for reasons involv-
ing professionalism and academic performance. In analyz-
ing the student’s breach of contract claim, relying on state-
ments made by the U.S. Supreme Court, the North Dakota
Supreme Court noted, “‘Courts are particularly ill-equipped
to evaluate academic performance.’” Abdullah, 771 N.W.2d at
254 (quoting Horowitz, supra). Additionally, the court stated,
“‘Academic evaluations of a student, in contrast to discipli-
nary determinations, bear little resemblance to the judicial and
administrative factfinding proceedings . . . which . . . tradi-
tionally attached a full-hearing requirement.’” 771 N.W.2d at
254 (quoting Horowitz, supra). The court also stated, “‘[T]he
determination whether to dismiss a student for academic rea-
sons requires an expert evaluation of cumulative information
and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.’” 771 N.W.2d at 254 (quoting
Horowitz, supra). In Doe I, we recognized that “expertise” is
required in matters of academic judgment. 280 Neb. at 531,
788 N.W.2d at 294. It has been stated that deference should be
given to the substantive decision to dismiss a medical student
for academic reasons. See Abdullah, supra. We apply defer-
ence in this case.
The parties agree that the evaluation form completed by
Spann was in existence and before the SEC at its November
7, 2006, meeting, when the SEC decided to terminate Doe’s
enrollment at UNMC for failure to meet professionalism stan-
dards. The evaluation form contains obvious negative com-
ments concerning Doe’s professional behavior. To the extent
this decision and that of the Appeal Board were based on the
evaluation, we give it deference.
Doe acknowledges that the evaluation was before the SEC.
He asserts, however, that at its November 7, 2006, meeting,
the SEC did not have evidence of any checklist ratings below
−2, and that, given this lacuna in the evidence, the SEC could
not have properly found that Doe violated the professional-
ism clause of the contract. At the summary judgment hearing
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and again on appeal, Doe questions whether the checklist
was in existence on November 7. Doe asserts that without the
checklist rating, the SEC could not have properly found that
he violated the professionalism clause of the October 3, 2006,
contract and the defendants breached the October 3 contract
when the SEC dismissed him.
The defendants contend that the greater weight of the evidence
at the summary judgment hearing shows the Professionalism
Checklist completed by Spann was in existence and before the
SEC at its meeting on November 7, 2006, and that therefore,
proof of the two bases for termination was present before the
SEC, as the district court found. The defendants acknowl-
edge that the checklist is undated but contend that there is
other evidence from which it can be found that the checklist
existed prior to November 7 and formed a basis upon which
the SEC decided to terminate Doe’s enrollment for failure
to comply with the conditions for his continued enrollment,
set forth in the October 3, 2006, contract. For example, the
defendants refer us to the record and note that certain UNMC
faculty members stated that the checklist was before the SEC
at its November 7 meeting. However, there are inconsistencies
among the witnesses as to which documents were presented to
the SEC. The defendants also direct us to the termination letter
sent to Doe from the SEC immediately after the November 7
meeting which states that Doe’s termination was due to profes-
sionalism issues.
In reviewing a grant of summary judgment, we view the
evidence in the light most favorable to the party against whom
the judgment was granted, and give that party the benefit of
all reasonable inferences deducible from the evidence. See
Alsidez v. American Family Mut. Ins. Co., 282 Neb. 890, 807
N.W.2d 184 (2011). Contrary to the defendants’ suggestion that
the greater weight of the evidence supports a finding that the
checklist ratings were before the SEC, in our analysis, we are
required to give the reasonable inferences on this issue in favor
of Doe as we review this appeal from a summary judgment
ruling. As Doe contends, contrary to the defendants’ argument
and the district court’s finding, a review of the record dem-
onstrates that reasonable inferences can be made which favor
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Doe to the effect that the Professionalism Checklist completed
by Spann was neither in existence nor before the SEC at its
November 7, 2006, meeting.
In addition to the inconsistencies among the witnesses,
the evidence from which it can be inferred that the Spann
checklist or other checklists did not exist before the SEC on
November 7, 2006, includes but is not limited to the follow-
ing facts. On October 20, 2006, Spann sent an e-mail to Grant
which provided a “brief summary” of Doe’s performance
during his 2-week plastic surgery rotation. After providing
the summary, Spann concludes, “I am available to discuss
these issues in further detail if necessary.” The statement
suggests that Spann had completed his reporting and prom-
ises nothing further. The e-mail does not make reference to
a Professionalism Checklist or ratings given on the profes-
sionalism ranking system. The transmittal does not include a
checklist, and Spann does not suggest or promise to complete
a checklist in the near future.
On October 22, 2006, Grant sent an e-mail to Hill, which
stated that she had received but “not yet revie[w]ed two of the
three evaluations from the 8 weeks, just the one from plastics,
which is poor.” The e-mail refers to the evaluation from Spann
but does not make reference to having also received a checklist.
One can reasonably infer that no checklists had been received
on this date and that, as Doe contends, Grant was neither aware
of nor awaiting a checklist.
The record shows that on November 6, 2006, in preparation
for the meeting, a department of surgery employee indicated
that she had Doe’s evaluations, had no “ER information,”
and had found the checklist forms. Given the context, it can
be inferred that the employee had discovered blank checklist
forms. November 6 was the day before the SEC meeting in
question. An inference can be made that no completed check-
lists had been received, had been anticipated, or were available
for the SEC meeting on November 7.
On December 18, 2006, the coordinator for admissions
and students faxed 31 pages consisting of many documents
to the defendants’ counsel, stating that all the information
transmitted had been provided to the SEC at its meeting on
314 	283 NEBRASkA REPORTS

November 7, 2006, plus Doe’s letter of termination. These
documents contained several checklist ratings, including a
Professionalism Checklist completed by Spann, a Primary
Clerkship Clinical Evaluation Form completed by Spann, and
a 2-week course evaluation completed by Dr. kristine Bott.
With the exception of the course evaluation completed by
Bott, dated November 10, 2006, none of these documents con-
tained a date. The date on Bott’s evaluation is obviously after
the SEC meeting held November 7 and casts doubt on the
assertion that all these documents had been before the SEC.
Doe suggests and we agree that, for purposes of summary
judgment, it can be inferred that the remainder of the undated
documents were not necessarily in existence or viewed by the
SEC at its meeting on November 7, at which it determined to
dismiss Doe. This group of documents was, however, before
the Appeal Board.
Because we are required to view the evidence from the
summary judgment hearing in the light most favorable to
Doe as the nonmoving party, see Alsidez v. American Family
Mut. Ins. Co., 282 Neb. 890, 807 N.W.2d 184 (2011), infer-
ences can be made that no checklist—in particular, Spann’s
Professionalism Checklist—was in existence or before the SEC
at its November 7, 2006, meeting. Given this inference, we
must assume that when the SEC decided to terminate Doe’s
enrollment at UNMC on November 7, it did not have evidence
of a checklist rating of −2 or below on the professionalism
ranking scale. There is no real dispute that the SEC had a poor
evaluation before it when it met on November 7. However,
given the inference that the SEC did not also have a negative
checklist and lacked evidence that Doe had violated this aspect
of the professionalism clause of the October 3, 2006, contract,
the defendants were not warranted in terminating Doe’s enroll-
ment at this point in time. This determination, however, does
not conclude our inquiry.
According to the SEC guidelines which are in evidence,
Doe was entitled to a review by the Appeal Board of the SEC’s
decision to terminate his enrollment. Upon Doe’s request, he
was given a hearing before the Appeal Board. According to
the SEC guidelines, if a student requests a personal appearance
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before the Appeal Board, the request shall be granted. The
SEC guidelines permit the receipt of additional evidence by the
Appeal Board at its review.
The SEC guidelines state, “If a request for a tape recording
of the meeting is made, the secretary shall arrange for a tape
recording of the student’s testimony and the testimony of any
other witnesses and also prepare a digest of the hearing.” The
SEC guidelines further provide:
After thorough consideration of all the presented writ-
ten and/or oral testimony, the Appeal Board shall deter-
mine by secret ballot, either to sustain the original recom-
mendation of the [SEC] or recommend its abrogation or
modification. The decision of the Appeal Board, which
will be based solely on the results of its investigation and,
if a hearing has been held, the evidence presented at the
hearing, shall be presented to the Dean of the College of
Medicine as a recommendation. The Dean shall make the
final decision.
According to the SEC guidelines, the Appeal Board makes its
decision based on the results of its own investigation and evi-
dence that is presented at the hearing. Referring to the guide-
lines concerning the appeal procedure, in Doe I, we described
the procedural due process that Doe received thereunder as
adequate. We reach the same conclusion here.
According to the SEC guidelines, the Appeal Board is not
limited to the record made at the SEC; evidence consists of
its own investigation, and such investigation can include addi-
tional evidence. Thus, the Appeal Board could consider the
Professionalism Checklist completed by Spann, even if it was
not before the SEC.
Allowing new evidence to be presented on review, although
not commonplace, finds support within our jurisprudence. For
example, in Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009,
759 N.W.2d 464 (2009), a group of taxpayers sought review
in the district court of the decision of the county freeholder
board which had approved the transfer of property from one
school district to another. We concluded that according to stat-
ute and case law, the district court was allowed to accept new
evidence on the appeal, because the appeal was taken as a trial
316 	283 NEBRASkA REPORTS

de novo before the district court. In Koch, we explained the
trial de novo:
“When an appeal is conducted as a ‘trial de novo,’ as
opposed to a ‘trial de novo on the record,’ it means liter-
ally a new hearing and not merely new findings of fact
based upon a previous record. A trial de novo is con-
ducted as though the earlier trial had not been held in the
first place, and evidence is taken anew as such evidence is
available at the time of the trial on appeal.”
276 Neb. at 1019, 759 N.W.2d at 473 (quoting In re Covault
Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984)).
Thus, allowing an appellate body to accept new evidence on
appeal is allowable where provided for by statute or internal
guidelines which are consistent with due process. We read the
SEC guidelines as permitting the taking of such evidence as is
available at the time the Appeal Board meets.
In the present case, there is no dispute that the Professionalism
Checklist completed by Spann was in existence and before the
Appeal Board at the December 19, 2006, hearing. The parties
agree that the Appeal Board received the negative checklist
document and considered it in its decision to dismiss Doe from
UNMC. Because the Appeal Board had the checklist showing
that Doe had received ratings below −2 on the professionalism
ranking system as well as the negative evaluation, it had before
it the two necessary items which supported the determination
that Doe violated the professionalism clause in the October 3,
2006, contract. UNMC did not breach its contract with Doe
when it terminated his enrollment. Although our reasoning dif-
fers somewhat from that of the district court, the district court
did not err when it determined that the defendants did not
violate the October 3 contract and sustained the defendants’
motion for summary judgment.
CONCLUSION
The district court did not err when it sustained the defend-
ants’ motion for summary judgment and dismissed the com-
plaint. Accordingly, we affirm.
affirMeD.
Wright and stephan, JJ., not participating.
DOE v. BOARD OF REGENTS 	317
Cite as 283 Neb. 303