This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Mulugeta Gebremeskel,





University of Minnesota, Twin Cities,




Filed July 23, 2002


Gordon W. Shumaker, Judge


Hennepin County District Court

File No. CT00011880




Mulugeta Gebremeskel, 1005 Portland Avenue, No. 112, Minneapolis, MN 55404 (appellant pro se)


Mark B. Rotenberg, General Counsel, University of Minnesota, Jeffrey G. Vigil, Associate General Counsel, 360 McNamara Alumni Center, 200 Oak Street S.E., Minneapolis, MN 55455-2006 (for respondent)




            Considered and decided by Willis, Presiding Judge, Harten, Judge, and Shumaker, Judge.





U N P U B L I S H E D   O P I N I O N



After hearings before the University of Minnesota Campus Committee on Student Behavior and the President’s Student Behavior Review Panel, appellant was expelled from the university.  He then sued the university.  The district court dismissed with prejudice appellant’s claims of breach of contract, breach of covenant of good faith and fair dealing, breach of public interest, and wrongful expulsion for failure to state a claim for which relief can be granted.  Additionally, the district court granted the University of Minnesota summary judgment on appellant’s claims of liability for breach of contract, discrimination, retaliation, and due-process violations.  Because we find appellant’s breach-of-contract claims have no merit, the law does not recognize his claims for breach of public interest or wrongful expulsion, no evidence supports his claims of discrimination or retaliation, and he was not denied due process, we affirm.


Appellant Mulugeta Gebremeskel was a student at the respondent University of Minnesota.  It is undisputed that he was charged with a number of violations of the student conduct code.  He was notified of these charges by letters from the Director of Student Judicial Affairs.  To address the charges, Gebremeskel elected to participate in a formal hearing before the Campus Committee on Student Behavior (CCSB).

The university’s policy permitted Gebremeskel to have an attorney or a non-attorney represent him at the hearing.  Prior to the preliminary hearing, as required by the university’s policy, Gebremeskel did not inform the CCSB who his representative would be.  Nevertheless, the CCSB extended the deadline for him and encouraged him to seek representation.  Gebremeskel represented himself at the hearing.

The CCSB found Gebremeskel guilty of six violations of the student conduct code.  He then appealed the decision to the President’s Student Behavior Review Panel (PSBRP).  Although again encouraged to seek representation, Gebremeskel represented himself at the preliminary hearing.  The PSBRP unanimously denied Gebremeskel’s request for a full review hearing.  The university president concurred with the panel, and Gebremeskel was expelled.  He then sued the university, asserting various violations of his rights.  The district court dismissed some claims and granted summary judgment in favor of the university as to others.  Gebremeskel appealed.


Gebremeskel challenges the district court’s dismissal of several of his claims and the court’s grant of the university’s summary-judgment motion.  Generally, when reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  However, in this case the district court considered matters outside the pleadings, and therefore the motion to dismiss shall be treated as one for summary judgment.  Minn. R. Civ. P. 12.02; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

On appeal from summary judgment, the appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation and citation omitted).  The facts must be viewed in the light most favorable to the party against whom judgment was entered.  Fabio, 504 N.W.2d at 761.  Therefore, in a case such as this, the factual allegations presented by Gebremeskel must be taken as true.  See id.  However, the party resisting summary judgment must do more than rest on mere averments.  DLH, Inc., 566 N.W.2d at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

Contract Claims

Gebremeskel challenges the district court’s dismissal of his contract claims.  In response, the university challenges this court’s jurisdiction over these claims.  The university argues that, because the sole method of review of a quasi-judicial decision made by an administrative body is a writ of certiorari, the claims were not properly before the district court and are therefore not properly before the appellate court.  Whether the court has subject-matter jurisdiction is a question of law, which this court reviews de novo.  Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999).  Whenever it appears that the court lacks subject-matter jurisdiction, the court shall dismiss the action.  Minn. R. Civ. P. 12.08(c).

Unless a plaintiff has a cause of action granted by statute, a writ of certiorari is the exclusive method of review of a quasi-judicial decision made by an administrative body that does not have statewide jurisdiction.  Willis v. County of Sherburne, 555 N.W.2d 277 (Minn. 1996).  The university is part of the executive branch of state government, its decisions are given deference by the appellate court under the principle of separation of powers, Maye v. Univ. of Minn., 615 N.W.2d 383, 385 (Minn. App. 2000), and we hold that the decision to expel Gebremeskel was a quasi-judicial decision.

Quasi-judicial proceedings are evidenced by three factors: (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard, and (3) a binding decision regarding the disputed claim.  Handicraft Block Ltd. P’ship. v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000).  In this case, Gebremeskel met with the Director of Student Judicial Affairs to discuss the charges against him, and Gebremeskel was afforded a formal hearing at which he was permitted to offer his own witnesses and evidence and to cross-examine the university’s witnesses.  The facts were found and applied under a prescribed standard, the student conduct code.  Finally, the CCSB and PSBRP provided a binding decision regarding the disputed claims.  Therefore, the proceedings were quasi-judicial. 

Although this jurisdictional issue has not yet arisen in the context of student expulsion, we hold that a writ of certiorari was the sole method of review available for Gebremeskel.  Because he did not file a writ of certiorari within 60 days after receiving notice of the university’s decision, we believe we have no jurisdiction over his contract claims.  See Minn. Stat. § 606.01 (2000) (stating that a writ of certiorari must be filed within 60 days after the party seeking review receives notice of the decision).  Even if we had jurisdiction, we find Gebremeskel’s claims are without merit.

Appellant alleges both breach of contract and breach of an implied covenant of good faith and fair dealing.  A student may bring a suit against an educational institution for breach of contract if the institution failed to perform specific promises it made to the student and the claims “would not involve an inquiry into the nuances of educational processes and theories.”  Alsides v. Brown Inst. Ltd., 592 N.W.2d 468, 473 (Minn. App. 1999) (quotation and citation omitted).  Additionally, every contract includes an implied covenant of good faith and fair dealing requiring that one party not “unjustifiably hinder” the other party’s performance of the contract.  In re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d 494, 502 (Minn. 1995) (citation omitted).  However, a student handbook or bulletin outlining disciplinary procedures does not form a unilateral contract between the university and the student, requiring strict compliance with every provision, as it might in an employment situation.  Rollins v. Cardinal Strich Univ., 626 N.W.2d 464, 471 (Minn. App. 2001); Ross v. Univ. of Minn., 439 N.W.2d 28, 34 (Minn. App. 1989), review denied (Minn. July 12, 1989).  We agree with the district court that Gebremeskel “fails to allege what terms of an express contract the [respondent] university breached.”  Because no contract was established, no covenant of good faith and fair dealing could have been established or breached either.

Due Process

Gebremeskel argues that he was denied due process because the university denied his request to continue his hearing and forced him to proceed without the assistance of a representative.  The Due Process Clause protects a student’s interest in attending a public university.  Abbariao v. Hamline Univ. Sch. of Law, 258 N.W.2d 108, 112 (Minn. 1977).  A student is afforded more due-process protection when school-imposed sanctions are for misconduct rather than for academic failings.  Id.  When sanctions are for misconduct, the student must be given notice and some opportunity to be heard.  Dixon v. Ala. State Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961), cert. denied, 368 U.S. 930, 82 S. Ct. 368 (1961); Shuman v. Univ. of Minn. Law Sch., 451 N.W.2d 71, 74 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990).  If a student’s expulsion results from arbitrary, capricious, or bad-faith actions of the university officials, the court will intervene and direct the university to treat the student fairly.  Abbariao, 258 N.W2d at 112. 

Although university policy states that students may have a representative present during the hearing, neither university policy nor the law requires that Gebremeskel be provided with a representative.  See Shuman, 451 N.W.2d at 74 (where students given a full evidentiary hearing with a right to counsel and chance to call witnesses and cross-examine, due-process requirements were met) .  Gebremeskel was given notice by letter of all the complaints filed against him.  He was given a chance to resolve the complaints through an informal process with the Director of Student Affairs and was given the choice to elect a formal hearing.  When Gebremeskel failed to inform the CCSB who his representative would be two days prior the preliminary hearing, the CCSB gave Gebremeskel additional time to do so.  Gebremeskel received a hearing where he had the opportunity to present evidence and cross-examine the university’s witnesses.  Because the notice and hearing Gebremeskel received met the requirements outlined in Dixon and Shuman, we hold that the district court did not err by dismissing Gebremeskel’s claim.


Gebremeskel argues that the district court erred by determining that he failed to present a prima facie case of discrimination in violation of the Minnesota Human Rights Act.  Gebremeskel alleged that his expulsion violated Minn. Stat. § 363.03, subd. 5(1), (2) (2000), which prohibits excluding, expelling, or otherwise discriminating against a person enrolled as a student because of race.  We find, as did the district court, that the record is devoid of evidence supporting Gebremeskel’s claim.  Therefore, we hold that the district court did not err in dismissing this claim.


Gebremeskel also argues that he was expelled in retaliation for a visit he made to the university president’s office to voice complaints about how the Director of Student Affairs treated him.  The Minnesota Human Rights Act prohibits educational institutions from intentionally engaging in any reprisal against any person that opposed any discriminatory practice forbidden under the act.  Minn. Stat. § 363.03, subd. 7 (2000).  To show a prima facie case of retaliation, Gebremeskel must show by the preponderance of the evidence that (1) he engaged in statutorily protected conduct; (2) adverse action was taken by the university; and (3) there exists a causal connection between the two.  See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101-02 (Minn. 1999) (applying the standard in an employment situation).  We find, as did the district court, that the record is devoid of any evidence supporting Gebremeskel’s claim of retaliation.  Therefore, we hold the district court did not err in dismissing this claim.

Wrongful Expulsion & Breach of Public Interest

Gebremeskel argues on appeal that the district court erred as a matter of law by dismissing his claims for wrongful expulsion and breach of public interest.  Wrongful-expulsion claims have been recognized in various contexts such as business associations, fraternal orders, and unions, but not in the context of student expulsion.  See, e.g., Benson Coop. Creamery Ass’n v. First Dist. Ass’n, 284 Minn. 335, 170 N.W.2d 425 (Minn. 1969) (business association); Brooks v. Int’l Bhd. of Boilermakers, 262 Minn. 253, 114 N.W.2d 647 (1962) (union membership); Rubbelke v. Mabley, 410 N.W.2d 880 (Minn. App. 1987) (fraternal order).  Gebremeskel cites no legal authority to support his claim for breach of the public interest but merely argues that his loss is bad public policy.  The district correctly determined that the law does not recognize such claims.

Constitutional Claims

Gebremeskel asserted a number of constitutional claims for the first time on appeal.  Although constitutional claims may be considered for the first time on appeal in the interests of justice, if the parties had adequate briefing time and the issues were implied in the district court, Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982), generally issues not argued below are waived on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant’s constitutional claims were not implied below, they are waived, and we decline to consider them.

Documents Outside the Record

Finally, we address the university’s request that we disregard a number of documents and factual references from Gebremeskel’s appellate brief because they were not part of the district court record.  The record on appeal consists of the papers filed in the district court, the exhibits, and the transcripts of proceedings, Minn. R. Civ. App. P. 110.01, and this court will strike any documents included in a party’s brief if they are not part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  With the exception of a reference to a Minnesota Daily article, which this court may consider because it is publicly available, Fairview Hosp., v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n.3 (Minn. 1995), all the documents and factual references the university complains of are stricken from the record because neither the documents nor support for factual references is found in the district court record.