Ethicist Rushworth Kidder recently explored a fascinating real life ethics problem on his excellent website for the Institute for Global Ethics, one of the web resources linked to the Scoreboard. In 1995, the dean of a Midwest medical school learned that one of his school’s graduating seniors had died in an accident in his home a few weeks before commencement. He had completed every requirement for a medical degree, but his death occurred when the pipe bomb he was apparently assembling exploded. The medical student was a member of a military militia group in the era of the Oklahoma City bombing, and seemed likely up to no good when he died, there being limited philanthropic uses to pipe bombs.

The dean wondered if he should award the degree posthumously, especially since he had always told students in speeches that the white coat of a doctor was “a symbolic cloak of caring, compassion, and service… a symbol of your character, your ethics, and your responsibility to others.”

The dean sought guidance in the student handbook, where he read that graduation depended on more than mere academic achievement. A student, the handbook said, must have “demonstrated acceptable competence in the knowledge, skills, and attitudes required of a physician,’ and must have exhibited ‘the ethical, professional, behavioral, and personal characteristics necessary for the practice of medicine.” The dean was persuaded that legitimate case could be made against awarding the degree. The decision was his.

Before revealing what the dean ultimately decided, Kidder asked his readers to weigh in with their choice. By a six-to-one-margin, they (and Kidder himself) voted against awarding the degree, which was what the dean had decided as well. The dean explained his decision by saying that the “concerns and emotions” of the late student’s family asking for the posthumous honor were pitted against the “community impact of awarding the degree to someone who failed to meet the professional and ethical standards required of a physician.”

Do you agree with the dean’s decision? The Scoreboard won’t keep you in suspense about where it stands: it believes that the dean, the eminent ethicist, and six out of every seven responders were not just wrong, but clearly wrong. The key ethical value here is fairness, and withholding the degree was not fair.

The first reason it is not fair is related to the fact the student is dead. Oddly, Kidder’s article on the dilemma brushes aside that issue, but it is critical to any analysis. If the student had been alive, there is no way the medical school could have refused to award him a degree he had otherwise earned without him having the opportunity to challenge the decision and have a hearing. His substantive rights do not evaporate just because he is unable to pursue them. One reader favoring the dean’s decision applied the analogy of Ken Lay, the Enron CEO who died shortly after his conviction for his role in his company’s fraudulent schemes. Should we “rescind the indictment of Ken Lay because he is no longer alive?” she asked? No, but we rescinded his conviction…because he had an absolute right to an appeal that his death prevented him from exercising. An indictment by itself cannot be the basis for punishment, but that is essentially all there is against the dead student. If the school couldn’t refuse to award a live student’s degree on the basis of the explosion alone, with no further proceedings or inquiries, how can it argue that it is fair to treat a dead student differently?

The student’s demise eliminates one of the strongest arguments that would normally be applied to a decision to refuse a diploma on the basis of bad character. A medical school has an obligation not to graduate students, no matter how smart and skilled, who will be bad doctors. Unethical doctors, like unethical lawyers, accountants and legislators, can do a lot of harm, and the smarter unethical professionals are the more harm they can do. But a dead doctor isn’t going to hurt anyone. Had the student posthumously graduated from the class of 1995, I guarantee that today he would have been responsible for fewer instances of malpractice, negligence, inattention, arrogance, over-billing, botched operations and misdiagnosis than any of his classmates. If the dean’s concern is truly “community impact,” I suggest that he review the records of the live doctors he sends into the world.

I am an admirer of Kidder, but I must say he omitted some essential information from his story, information that casts the dean’s decision in a somewhat different light. He identified the dean as “Tom Allen,” but said only that his was a “medical school in the American Midwest.” Well, his was a medical school in Tulsa, Oklahoma—OSU College of Osteopathic Medicine, to be exact. The fact that this incident occurred so soon after the Oklahoma City bombing in the same state was obviously a major factor in Allen’s decision. No doubt about it— the public in his community, many of whom lost loved ones in the Oklahoma City disaster, would be up in arms over the graduation of a militia member, and the resulting controversy could have cost the school prestige and support. But those are non-ethical considerations. A medical school should not hesitate to do what is right because it might cost it some local contributions and community good will. It was a tough decision, no question. I suspect, however, that the passions of the times had too much influence in it, and Kidder was wrong to keep that fact out of his discussion.

Another fact left out of Kidder’s description was that the school is a state institution that may not, under the U.S. Constitution, punish someone for his political views and beliefs. A racist, a bigot, a sexist, a radical terrorist or a Nazi has a right to graduate from medical school. Militia groups are not illegal, and there is freedom of association in this country. One of those who supported Allen in his comments to the Institute for Global Ethics website, a policeman, asserted that possession of a pipe bomb is a felony, so the medical student was a criminal. Not so fast, officer. He is not a criminal until he has been tried, found guilty of a crime and failed all appeals. And unlike Ken Lay, it is doubtful that he ever committed a criminal act, or “possessed” a pipe bomb at all. It wasn’t a bomb until he assembled it, and it exploded more or less the second it became a bomb. Is “possession” of a pipe bomb for a couple of seconds sufficient for a charge and conviction under the statute? Maybe, and maybe not. But the dean’s decision cannot be based on the fact that the medical student was a criminal. He has no criminal record.

“AHA!” cry alert Scoreboard readers. “But you are guilty of outrageous inconsistency! Didn’t you recently write, with unwavering fervor, that former baseball slugger Mark McGwire should be kept out of baseball’s Hall of Fame, despite having ample credentials for election, on the grounds that his conduct indicated that he has used prohibited steroids to achieve success? McGwire has had no trial or hearing. Do you think a higher standard should be applied to baseball players than the medical profession?”

There is no inconsistency. Mark McGwire was a major league baseball player, and retains all those things that a major league baseball player earns during his career: his salary, pension, his records, and his championship rings. Nobody has proposed taking any of those things from him, despite well-founded suspicions that he cheated during his career by using performance-enhancing drugs. What he has been denied, so far at least, is the special honor of representing his sport in perpetuity as one of the most outstanding players ever to step on a baseball field. Unlike graduation requirements, the criteria for admission to the Hall of Fame are flexible and subjective. McGwire has had the opportunity to address, counter, deny or disprove the allegations against him, and has refused to do so, while the dead medical student had no such opportunity.

Rest assured that if there were an Oklahoma Medical Student Hall of Fame, I would not support the pipe-bomb making student’s posthumous candidacy. But he earned his degree before blowing himself up, and he, no less than any criminal, deserved due process before the school stripped him of what he had earned based on political and financial considerations as much as ethical ones.

I have reluctantly come to suspect that Dean Allen too doubts the fairness of his decision, and re-opened the case on Kidder’s website to receive some balm for his troubled conscience. He got what he came for, but should not have.

Kidder closes his discussion of the problem by observing that

…arguments for awarding the degree lean heavily on a Kantian perspective, requiring us to hold to a standard that, however tough it may seem, we want to see universalized. In this case, the standard concerns due process: Is the student really guilty, and do we know all we need to know to make that determination? On the other hand, arguments for withholding the degree rely on the impact of the message sent by university officials who, if they made the award, would be pilloried for doing so.

What message, exactly, is Kidder referring to? The message that due process and fairness matter, even when applied to unpopular individuals? The message that a person’s political beliefs shouldn’t disqualify him from the practice of medicine? The message that the parent of dead students deserve to see their children’s rights treated with as much respect as if they were alive?

Kidder and six out of seven of his readers should recognize that any of these were preferable to the message that was sent by the Allen’s decision: that state school administrators are not going to have the courage to do the right thing when it is sure to outrage public opinion.