RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Bell v. Ohio State University, et al. No. 02-3293 ELECTRONIC CITATION: 2003 FED App. 0434P (6th Cir.) File Name: 03a0434p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Erik G. Chappell, LYDEN, LIEBENTHAL & FOR THE SIXTH CIRCUIT CHAPPELL, Toledo, Ohio, for Appellant. Craig R. Carlson, _________________ PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellees. ON BRIEF: Erik G. Chappell, SHEILA J. BELL, X LYDEN, LIEBENTHAL & CHAPPELL, Toledo, Ohio, for Plaintiff-Appellant, - Appellant. Craig R. Carlson, David S. Bloomfield, Jr., - PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, - No. 02-3293 Ohio, for Appellees. v. - > _________________ , OHIO STATE UNIVERSITY, et - OPINION al., - _________________ Defendants-Appellees. - - ALICE M. BATCHELDER, Circuit Judge. Sheila Bell N appeals from the district court’s order granting summary Appeal from the United States District Court judgment to the defendants in their individual capacities on for the Southern District of Ohio at Columbus. Ms. Bell’s claims, brought under 42 U.S.C. §§ 1981 and No. 98-01274—Edmund A. Sargus, Jr., District Judge. 1983, that during her enrollment in, and ultimately her dismissal from, the Ohio State University College of Argued: August 8, 2003 Medicine, the defendants denied her due process and equal protection and discriminated against her because of her race Decided and Filed: December 9, 2003 and gender. The district court held that those claims which arose prior to July 6, 1996, were barred by the statute of Before: BATCHELDER and ROGERS, Circuit Judges; limitations; that Ms. Bell had failed to present any evidence RUSSELL, District Judge.* to support either a substantive or procedural due process claim; that Ms. Bell had neither stated an equal protection claim nor provided evidence to support such a claim; and that Ms. Bell had failed to make out a prima facie case of a violation of Section 1981, and, alternatively, that she had wholly failed to counter the defendants’ evidence that she was dismissed from the College of Medicine for purely academic reasons. We affirm the judgment of the district court, * although with different reasoning as to some of the claims. The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting by designation.
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Factual Background in the Internal Medicine program on August 27. Although Ms. Bell claimed at the time and continues to claim that she Sheila Bell is an African-American woman, who was was too ill to take the exams, she does not dispute that she did admitted to the Ohio State University College of Medicine not seek medical attention, or that she was not excused from (“the medical school”) in the fall of 1987. Although the appearing for the exams, either by anyone in the medical parties are not in complete agreement about Ms. Bell’s school in Columbus or at the Cleveland Clinic. Ms. Bell was performance with regard to completing the requirements of not permitted to take the exams at a later date, but was told the first two years of medical school, the essential facts are that she must repeat the two-month rotation before she would not genuinely in dispute. Ms. Bell started out in the be allowed to take either the final written exam or the clinical Independent Study Program (“ISP”), where she had exam; and she received an unsatisfactory grade for the considerable academic difficulty and was warned that she was rotation, in part because she failed to take the exams. She in danger of failing “Med Coll 662,” which she was required appealed her unsatisfactory grade to the Internal Medicine to pass in order to advance to the second year of medical Evaluation Committee, which denied the appeal and required school. She was advised to transfer into the more traditional as remediation for the missed exams that Ms. Bell repeat one Lecture and Discussion Program (“LDP”), but she refused to month—rather than two—of internal medicine rotation and do so and was permitted to continue in the ISP. Ms. Bell take the clinical and written exams. Ms. Bell appealed this failed “Med Coll 662" and was permitted to repeat that course decision in turn to the Internal Medicine Appeals Committee, work in the LDP program; she then successfully completed the Med III-IV Committee and the Student Progress her first year and moved on to her second year in the LDP Committee, each of which recommended that the appeal be program. Ms. Bell continued to have academic difficulty, and denied. ultimately she was required to retake her second year. In June of 1992, after successfully completing her second year course While these appeals were pending, Ms. Bell was advised work, she retook Part 1 of the national medical licensing that she had received an “incomplete” for a rotation in examination (“the Boards”), which she had taken but had not Clinical Pediatrics in September and October of 1993, and passed during her first year of medical school; she did not, that she would have six months to rewrite and resubmit her however, have her scores from Part 1 sent to the medical paper for that course. Also during this time period, Ms. Bell school. In August 1992, the medical school instituted a new requested and received permission from the administrative requirement that students pass Parts 1 and 2 of the Boards assistant to the Med III-IV Committee to schedule a one- before advancing to the third year curriculum, but because month internal medicine rotation at Mt. Carmel Hospital. She that requirement had not been in place when she entered did not, however, advise the assistant that she intended this medical school, Ms. Bell asked for and was granted rotation to fulfill the remediation requirement for internal permission to proceed to her third year of study without medicine. After she had completed the rotation in April 1994 passing Parts 1 and 2 of the Boards. Ms. Bell learned that because the medical school required that the remediation rotation be a “core” rotation at an Ohio State Ms. Bell’s problems continued through her third year of University Hospital, rather than an “elective” rotation at medical school, and again, the material facts are not genuinely another hospital, the Mt. Carmel rotation did not satisfy the disputed. In July and August of 1993, Ms. Bell took an remediation requirement. Internal Medicine rotation at the Cleveland Clinic. Ms. Bell did not appear for her final written and clinical examinations No. 02-3293 Bell v. Ohio State University, et al. 5 6 Bell v. Ohio State University, et al. No. 02-3293
On May 25, 1994, the Clinical Academic Standing “reviewed by faculty committees at several levels and the Committee sent Ms. Bell a letter advising her that she would outcome has always been the same.” Ms. Bell did not pursue not be permitted to graduate in June 1994. That letter further any further attempt to complete the requirements for advised: graduation during the summer of 1994, and from September 1994 until June 1995, she was in Africa doing missionary The following issues must be resolved before you can be work. During that period, she learned that she had been reconsidered for certification for graduation: withdrawn from the medical school, but that she could apply 1. Successful passage and release of scores for for reinstatement. She did so, and on May 28, 1996, the USMLE, Step 2. medical school sent her a letter advising that her petition for 2. Release of scores for USMLE, Step 1. reinstatement had been granted and further advising that: 3. Successful remediation of the core Internal Medicine rotation and exams as outlined by the Your readmission is subject to the following conditions: department. 1) You must meet the current cognitive and non- 4. Successful resolution of Anesthesia elective or cognitive standards of the College of Medicine, completion of another clinical rotation including passage of Step 1 and Step 2 of the (awaiting grade). USMLE. The earliest date you would be eligible to graduate would 2) You must meet all curricular requirements be at the end of Autumn Quarter. established by the Clinical Academic Standing Committee. At some point during May 1994, in response to Ms. Bell’s 3) You will be granted an exemption from the inquiry, the administrative assistant to the Med III-IV College’s Six-Year Rule until 7/31/97. Committee told Ms. Bell that although she would not be 4) You must meet all the above requirements by July eligible to participate in the June graduation ceremony, she 31, 1997 or be subject to final dismissal from the would be permitted to participate in the convocation College of Medicine. ceremony. Ms. Bell was not, however, permitted to participate in the convocation, although she apparently did This letter also instructed Ms. Bell to contact the Associate not receive the letter from the medical school advising her of Dean for Student Affairs in order to resume her studies. Ms. that until after the ceremony. Bell contacted the Associate Dean, but was unhappy with his instruction that she would need to complete at least one During the summer of 1994, Ms. Bell complained to month of an internal medicine rotation. Ms. Bell expressed various officials at the Ohio State University, including the her dissatisfaction in a letter to the Dean of the Medical University Provost, that the College had not properly handled College, dated June 14, 1996, complaining that she had been her appeals with regard to the internal medicine rotation denied due process during the 1994 appeals process, that she requirement. On September 2, 1994, the Provost issued his had satisfied the internal medicine rotation requirement, that report, stating first that his office did not have the authority to but for the “lack of due process, general unfairness and review the appeals, but nonetheless advising Ms. Bell that his harassment,” she would have received her medical degree review of her case resulted in his conclusion that the review long since, and that unless the medical school corrected the process within the Medical College had been “fair and problem, she would have no choice but to file a lawsuit. forthright.” He further noted that her complaint had been No. 02-3293 Bell v. Ohio State University, et al. 7 8 Bell v. Ohio State University, et al. No. 02-3293
Ms. Bell’s threat of litigation did not have the desired University and the College of Medicine in both their official effect, and the Clinical Academic Standing Committee and their individual capacities. The complaint claimed that advised her on September 9, 1996, that, if she wanted to the plaintiff has both a property interest and a liberty interest continue her studies, she would be required to do one month in her continued enrollment in the Medical College, and that of internal medicine at the Ohio State University Medical the defendants had deprived her of those interests without due Center and to take and pass the clinical exam and the written process and had denied her equal protection of the law, in final exam by June 30, 1997. Ms. Bell complied with neither violation of the Fifth and Fourteenth Amendments and the of these requirements, and the Med III-IV Student Review Ohio Constitution; had deprived her and conspired to deprive Subcommittee recommended to the Clinical Academic her of her rights on the basis of her race and gender in Standing Committee that Ms. Bell be dismissed from the violation of 42 U.S.C. §§ 1981, 1983, 1985 and 1986; and medical school. On October 24, 1997—after a meeting which had intentionally inflicted emotional distress and damaged her in which Ms. Bell participated—the Clinical Academic reputation and had intentionally breached “their contractual Standing Committee recommended that she be dismissed for agreement to provide Plaintiff with a Doctor of Medicine failure to complete the conditions to which her reinstatement Degree,” in violation of Ohio law. The Complaint sought was subject, including her failure to complete the internal both monetary damages and injunctive relief. medicine rotation and to take the exams. Ms. Bell was notified of the Committee’s recommendation by letter dated The district court granted the defendants’ motion to dismiss October 27, 1997. The Committee’s recommendation was Ms. Bell’s state law claims and her claims brought under reviewed by the Academic Review Board at a meeting which 42 U.S.C. §§ 1985 and 1986. The district court then granted Ms. Bell attended and in which she was given the opportunity the defendants’ motion for summary judgment on the claims to present information. The Academic Review Board found brought under 42 U.S.C. §§ 1981 and 1983, holding that all that both the Student Review Subcommittee and the Clinical the official capacity claims were barred by the Eleventh Academic Standing Committee had conducted their Amendment and that the claims against the defendants in proceedings in accordance with the policies and procedures of their official capacities were either barred by the statute of the Medical College, and that the results of the Board’s limitations, unsupported by any evidence or wholly without review and the recommendations of the Committees would be merit. Ms. Bell now appeals from those portions of the forwarded to the Dean. After review of all of the district court’s orders that granted summary judgment to the proceedings, the Dean notified Ms. Bell by letter dated individual defendants on the Section 1981 and 1983 claims. December 24, 1997, that she had been dismissed from the She does not appeal the dismissal of the state law claims or Medical College and that she was not eligible for future the Section 1985 and 1986 claims, or the judgment dismissing reinstatement. the official capacity claims on the basis of the Eleventh Amendment. Ms. Bell filed suit against the defendants on July 6, 1998, in the United States District Court for the Eastern District of Analysis Michigan. That action was dismissed without prejudice for lack of subject matter jurisdiction. On December 17, 1998, Standard of Review Ms. Bell filed this action against Ohio State University, its Board of Trustees, the Ohio State University College of We review de novo a district court’s grant of summary Medicine, and numerous officials and administrators of the judgment, using the same standard under Rule 56(c) used by No. 02-3293 Bell v. Ohio State University, et al. 9 10 Bell v. Ohio State University, et al. No. 02-3293
the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th basis of his action.” Id. at 273. “In determining when the Cir. 1999) (en banc). We must view the evidence, all facts, cause of action accrues in section 1983 actions, we have and any inferences that may be drawn from the facts in the looked to what event should have alerted the typical lay light most favorable to the nonmoving party. Matsushita person to protect his or her rights.” Dixon v. Anderson, Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 928 F.2d 212, 215 (6th Cir. 1991). (1986). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 file, together with the affidavits, if any, show that there is no (6th Cir. 1997). The exceptions to that rule are two: where genuine issue as to any material fact and that the moving the plaintiff can show prior discriminatory activity that party is entitled to a judgment as a matter of law.” FED . R. continues into the present, as opposed to prior discriminatory CIV . P. 56(c). To withstand summary judgment, the non- activity whose effects continue into the present, see Tolbert movant must show sufficient evidence to create a genuine v. State of Ohio Dept. of Transp., 172 F.3d 934, 940 (6th Cir. issue of material fact. Klepper v. First Am. Bank, 916 F.2d 1999); and where the plaintiff can show “a longstanding and 337, 341 (6th Cir. 1990). A mere scintilla of evidence is demonstrable policy of discrimination.” Dixon, 928 F.2d at insufficient; “there must be evidence on which the jury could 217. Ms. Bell contends that she has presented evidence reasonably find for the [non-movant].” Anderson v. Liberty sufficient to require the application of both of these Lobby, Inc., 477 U.S. 242, 252 (1986). Entry of summary “continuing violation” exceptions. judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element In Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 essential to that party’s case, and on which that party will bear (2002), a Title VII action, the Court addressed the first of the the burden of proof at trial.” Celotex Corp. v. Catrett, 477 two types of continuing violation, namely, the prior U.S. 317, 322 (1986). discriminatory activity that continued into the present. The Court held that while the continuing violation doctrine applies Statute of Limitations in hostile environment Title VII discrimination actions, it does not permit recovery for discrete acts of discrimination Ms. Bell contends that the district court erred in holding that occurred outside the statutory period. Id. at 113. That that to the extent that her Section 1981 and 1983 claims are reasoning, this court recently held, applies to claims brought based on events that occurred more than two years before she under Section 1983. Sharpe v. Cureton, 319 F.3d 259, 267 filed her first lawsuit, they are barred by the statute of (6th Cir. 2003) (“We can find no principled basis upon which limitations. Ms. Bell does not argue that the court applied an to restrict Morgan to Title VII claims, and we therefore erroneous statute of limitations, but rather that the court erred conclude that the Supreme Court’s reasoning must be applied in holding that the “continuing violations theory” is to the firefighters’ § 1983 claims.”) We noted in Sharpe that inapplicable to this case. Morgan does not implicate the second continuing violation exception, involving a longstanding policy of discrimination. The date on which the statute of limitations begins to run Id. at 268. in a § 1983 action is a question of federal law. Sevier v. Turner, 742 F.2d. 262, 272 (6th Cir. 1984). Ordinarily, Here, we conclude that all of the allegedly unconstitutional the limitations period starts to run “when the plaintiff and discriminatory actions that took place prior to July 6, knows or has reason to know of the injury which is the 1996, are discrete acts of which Ms. Bell was immediately No. 02-3293 Bell v. Ohio State University, et al. 11 12 Bell v. Ohio State University, et al. No. 02-3293
aware when they occurred, and Ms. Bell has presented no The undisputed facts establish that on May 9, 1995, Ms. evidence of a longstanding policy of discrimination. We Bell was involuntarily withdrawn from the medical school; hold, therefore, that all of the Section 1983 claims based on that on May 28, 1996, her petition for reinstatement was events prior to July 6, 1996, are time-barred. granted subject to very specific conditions; and that on June 14, 1996, Ms. Bell objected to the terms of her This circuit has not addressed the question of whether the reinstatement and threatened litigation. Ms. Bell did not reasoning of Morgan and Sharpe extends to discrimination comply with any of the required conditions of her claims brought under Section 1981. And, although Ms. Bell reinstatement, and on December 24, 1997, after medical does not distinguish between her Section 1983 and 1981 school academic committees at several levels reviewed her claims with regard to the statute of limitations, this circuit has failure to comply with those requirements, the medical school recently held that the presumptive four-year statute of dismissed Ms. Bell because of that failure. The issue before limitations of 28 U.S.C. § 1658 applies to Section 1981 us is whether Ms. Bell has presented evidence sufficient to actions “premised upon alleged discriminatory actions permit a jury to conclude that after July 6, 1996, in occurring after the formation of the employment performing that review and in ultimately dismissing her, any relationship.” Anthony v. BTR Auto. Sealing Sys., 339 F.3d or all of the defendants discriminated against her because of 506, 514 (6th Cir. 2003). This latter issue, we note, is her race or gender, or deprived her of due process, either currently before the Supreme Court in Jones v. R.R. procedural or substantive, or denied her the equal protection Donnelley & Sons Co., 305 F.3d 717 (7th Cir. 2002), cert. of the law. We hold that she has not. granted 123 S. Ct. 2074 (May 19, 2003). We conclude, however, that it is unnecessary to decide whether the 1. Procedural Due Process continuing violations exception applies to Ms. Bell’s Section 1981 claim, because, as we will more fully explain below, “Because property interests are creatures of state law, Ms. Bell has wholly failed to provide any evidence to support [plaintiff] would have been required to show at trial that her her Section 1981 claim, regardless of when it accrued. seat at the Medical School was a ‘property’ interest recognized by [] state law.” United States v. Horowitz, 435 The Remaining Section 1983 Claims U.S. 78, 82 (1978) (citations omitted). Ms. Bell gives us little to go on here. She points us generally to The Student In order to state a claim under Section 1983, a plaintiff Handbook and The Student Handbook Supplement for must allege the deprivation of a constitutional right caused by support for her belief that she had a property interest in her a person acting under color of state law. Black v. Barberton continued medical education at the medical school, but she Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). In order cites to no particular provision of those handbooks. As to survive a motion for summary judgment, a plaintiff must further support for this proposition, she cites the deposition present evidence sufficient to raise a genuine issue of fact testimony of Dr. Kantor, an Associate Dean of the Medical material to her claim. Klepper, 916 F.2d at 341-42. Ms. Bell College during some of the period when Ms. Bell was a claims that she has both a property interest and a liberty student there: “. . . and it has always been the policy of the interest in her continued enrollment at the medical school, and college, that once you’re in, we try everything we can to help that the defendants’ conduct unconstitutionally deprived her you pass and succeed.” of both. No. 02-3293 Bell v. Ohio State University, et al. 13 14 Bell v. Ohio State University, et al. No. 02-3293
Assuming, however, for the purposes of this summary occurred after July 6, 1996 (which is not clear either in her judgment motion, that Ms. Bell does have such an interest, we complaint or in her brief on appeal), she appears to contend hold that Ms. Bell has not presented any evidence that the that her ultimate dismissal from the Medical College was the defendants denied her procedural due process in reviewing result of her failure to complete the internal medicine rotation her failure to comply with the conditions of her reinstatement in 1994, and that the defendants’ requiring her to take an or in dismissing her because of that failure. To the contrary, additional month of an internal medicine rotation once she all of the evidence in this case demonstrates that, like the was reinstated—and dismissing her when she refused to plaintiff in Horowitz (where the Supreme Court assumed comply—was racially discriminatory and, therefore, arbitrary, without deciding that the plaintiff had a property interest in capricious, and unfair. We find no merit to these arguments. her medical school enrollment), Ms. Bell received “at least as much due process as the Fourteenth Amendment requires.” The interests protected by substantive due process are of Id. at 85. As was the case in Horowitz, the administration of course much narrower than those protected by procedural due the medical school advised Ms. Bell fully of her failures, process. Most property interests warranting the protection of explained the consequences, and “the ultimate decision to procedural due process, for instance, may be substantively dismiss [plaintiff] was careful and deliberate.” Id. Indeed, in modified or abolished by the legislature. See, e.g., Atkins v. Bell’s case, medical school committees on at least three levels Parker, 472 U.S. 115, 129-31 (1985). Interests protected by reviewed her failure to comply with the requirements upon substantive due process, which the legislature may not which her readmission was explicitly conditioned, and she infringe unless supported by sufficiently important state was given the opportunity to participate in at least two of interests, include those protected by specific constitutional those committees’ reviews. The Fourteenth Amendment guarantees, such as the Equal Protection Clause, freedom requires nothing more. from government actions that “shock the conscience,” see Braley v. Pontiac, 906 F.2d 220, 224-25 (6th Cir. 1990), and 2. Substantive Due Process certain interests that the Supreme Court has found so rooted in the traditions and conscience of our people as to be Ms. Bell contends that she has a both a property interest fundamental. See, e.g., Youngberg v. Romeo, 457 U.S. 307, and a liberty interest in continued enrollment in the Medical 321-23 (1982) (right to reasonable care and safety while in College; that those interests are subject to the protections of government custody); Johnson v. Cincinnati, 310 F.3d 484, substantive due process; and that the actions of the defendants 495-98 (6th Cir. 2002) (right to travel locally through public deprived her of those interests and denied her that protection. spaces and roadways);1 but see DeShaney v. Winnebago As we understand the argument she presents in her brief, Ms. Bell’s principal contention is that she was arbitrarily and unfairly dealt with in 1994 with regard to both the medical 1 school’s insistence that she fulfill a remediation requirement Others recognized by the Supreme Court include: after receiving an unsatisfactory grade for her internal the rights to m arry, Lov ing v. Virgin ia, 388 U.S. 1 (19 67); to medicine rotation, and the school’s refusal to permit her to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. graduate because she had not fulfilled the remediation 535 (1942); to direct the education and upbringing of one’s requirement. These matters are, as we have already held, children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. outside the period of the statute of limitations. To the extent Soc iety of Sisters, 268 U.S. 51 0 (1925 ); to marital privacy, Grisw old v. Conne cticut, 381 U.S. 47 9 (1965); to use that Ms. Bell complains of any actions of the defendants that contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to No. 02-3293 Bell v. Ohio State University, et al. 15 16 Bell v. Ohio State University, et al. No. 02-3293
County Dep’t of Social Servs., 489 U.S. 189, 194-197 (1989) Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (no substantive due process right to government protection (citations and quotations omitted). Where, as we explain from an abusive domestic situation). As the Supreme Court below, there is no equal protection violation, we can see no reasoned in denying a substantive due process right to commit basis for finding that a medical student’s interest in suicide: continuing her medical school education is protected by substantive due process. Cf. Gutzwiller v. Fenik, 860 F.2d we have always been reluctant to expand the concept of 1317, 1328-29 (6th Cir. 1988) (stressing, in the public substantive due process because guideposts for university context, the similarity of equal protection and responsible decisionmaking in this unchartered area are substantive due process).2 Certainly the contention that the scarce and open-ended. By extending constitutional medical college’s actions were arbitrary or capricious cannot protection to an asserted right or liberty interest, we, to a be sufficient; otherwise judicial review for compliance with great extent, place the matter outside the arena of public substantive due process would become the equivalent of a debate and legislative action. We must therefore exercise typical state or federal Administrative Procedure Act. See, the utmost care whenever we are asked to break new e.g., 5 U.S.C. § 706 (2)(A) (review of agency action under ground in this field, lest the liberty protected by the Due arbitrary or capricious standard). Process Clause be subtly transformed into the policy preferences of the members of this Court. Even if Ms. Bell could claim an interest in her continued enrollment that would be protected by substantive due Our established method of substantive-due-process process, she has presented no evidence that she was denied analysis has two primary features: First, we have that protection by the defendants. In Regents of the regularly observed that the Due Process Clause specially University of Michigan v. Ewing, 474 U.S. 214 (1985), the protects those fundamental rights and liberties which are, Supreme Court addressed the claim of a medical student who objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they 2 None of the case s cited b y Bell in support of her claim actually ho ld were sacrificed. Second, we have required in that such an interest exists. See Regents of Univ. of Michigan v. Ewing, substantive-due-process cases a careful description of the 474 U.S. 214, 222 (1985) (assuming arguendo the existence of a asserted fundamental liberty interest. Our Nation’s constitutionally protected property right in continued enrollment in medical school); Board of Cu rators of the Un iv. of M issouri v. Ho rowitz, history, legal traditions, and practices thus provide the 435 U.S. 78, 91-92 (19 78) (assuming arguendo a constitutionally crucial guideposts for responsible decisionmaking, that protected interest in continued enrollment in med ical scho ol); Martin v. direct and restrain our exposition of the Due Process Helstad, 699 F.2d 387 , 390 (7th C ir. 1983) (assuming arguendo a Clause. property interest in law school adm ission); Amelunxen v. Univ. of Puerto Rico, 637 F.Supp. 426, 431 n.3 (D.P .R. 1986) (assuming arguendo that a student has a property or a liberty interest in continuing education). In fact, these decision s note that concerns of federalism, judicial capacity, and academic freedom counsel against the recognition of such an interest. bod ily integrity, Rochin v. California, 342 U.S. 165 (1952), and Ewing, 474 U .S. at 226 (expressing “a reluctance to trench on the to abortion, [Planned Parenthood v. Casey, 505 U.S. 833 prerogatives of state and local educational institutions and our (1992)]. respo nsibility to safeguard their acad emic freedom” ); Ho rowitz, 435 U.S. at 92 (noting that courts “are particularly ill-equipped to evaluate Wash ington v. Glucksberg, 521 U.S. 702 , 720 (1997 ). academic performance”). No. 02-3293 Bell v. Ohio State University, et al. 17 18 Bell v. Ohio State University, et al. No. 02-3293
complained that the University defendants had denied him 3. Equal Protection substantive due process after he failed Part I of the NBME, which was required in order for him to proceed to the final Ms. Bell claims that she was treated differently from non- two years of the medical school program in which he was African American students and male students in the Medical enrolled. Rather than permitting the plaintiff to retake Part I, College, and that her dismissal from the medical school was the University dismissed him from the program after therefore in violation of the Equal Protection guarantee of the evaluating his entire academic record. The Supreme Court Fourteenth Amendment. The district court found that Ms. assumed, without deciding, that there was “a constitutionally Bell had failed to provide any evidence whatsoever that she protectible right in [the plaintiff’s] continued enrollment.” Id. was treated differently from similarly situated students at 223. Nonetheless, the Court made it clear that the because of her race or gender, and we agree. judiciary’s review of academic decisions is limited: Although Ms. Bell claims that she was treated differently When judges are asked to review the substance of a from similarly situated non-minority and male students, her genuinely academic decision, such as this one, they brief on appeal points to no specific instances of such should show great respect for the faculty’s professional disparate treatment occurring after July 6, 1996. We have judgment. Plainly, they may not override it unless it is reviewed the record and conclude that it contains no evidence such a substantial departure from accepted academic that during the statutory period the defendants treated Ms. norms as to demonstrate that the person or committee Bell differently from any non-minority student or male responsible did not actually exercise professional student, or that they made any decisions or took any actions judgment. with regard to her on the basis of either her race or gender.
Id. at 225. The Court went on to point out that courts are ill- The Section 1981 Claim suited to “evaluate the substance of the multitude of academic decisions that are made daily by faculty members of public Ms. Bell claims that by virtue of her enrollment in the educational institutions—decisions that require ‘an expert Medical College, she had a contractual relationship with the evaluation of cumulative information and [are] not readily Medical College, and that the defendants discriminated adapted to the procedural tools of judicial or administrative against her with regard to that contract because of her race in decisionmaking.’” Id. at 226 (quoting Horowitz, 435 U.S. at violation of 42 U.S.C. § 1981. That section provides: 89-90). Our review of the record in Ms. Bell’s case persuades us beyond peradventure that, even if we assume that All persons within the jurisdiction of the United States substantive due process protects Ms. Bell’s interest in staying shall have the same right in every State and Territory to in medical school, the decisions of the defendants in this case, make and enforce contracts, to sue, be parties, give like the defendants’ determination in Ewing, “rested on an evidence, and to the full and equal benefit of all laws and academic judgment that is not beyond the pale of reasoned proceedings for the security of persons and property as is academic decision-making when viewed against the enjoyed by white citizens, and shall be subject to like background of [her] entire career.” Ewing, 474 U.S. at 227- punishment, pains, penalties, taxes, licenses, and 28. exactions of every kind, and to no other. No. 02-3293 Bell v. Ohio State University, et al. 19 20 Bell v. Ohio State University, et al. No. 02-3293
42 U.S.C. § 1981(a). The statute defines the term “make and prima facie case, she has come forward with not even a enforce contracts” as including “the making, performance, scintilla of evidence of the fourth, namely, that the defendants modification, and termination of contracts, and the enjoyment treated any similarly situated non-minority student differently of all benefits, privileges, terms and conditions of the from the way they treated Ms. Bell with regard to any aspect contractual relationship.” 42 U.S.C. § 1981(b). The district of her relationship with the Medical College. The district court did not address Ms. Bell’s claim that her relationship court correctly held that without such evidence, Ms. Bell had with the College was contractual, but held that Ms. Bell had failed to make out a prima facie case of discrimination on the presented no evidence, either direct or circumstantial, to basis of race. support a claim of racial discrimination. We accept Ms. Bell’s contention that she had a contract with the Medical Ms. Bell argues before us that she met her burden by College, see Behrend v. State, 379 N.E.2d 617, 620 (1977), presenting her deposition testimony. According to Ms. Bell, and, as we noted above, we review this claim without regard she testified that she knew Caucasian students were permitted to any statute of limitations. We find that Ms. Bell has to retake exams, but she was not given that opportunity. Ms. wholly failed to present any evidence to support her claim Bell declares, that the defendants’ actions were in violation of Section 1981. [i]n essence, the trial Court requires that Plaintiff Ms. Bell does not appear to appeal the district court’s identify by name an individual who received more conclusion that she presented no direct evidence of race favorable treatment. This is not required under the law. discrimination. In the absence of direct evidence, a claim of Plaintiff testified that she was aware that Caucasian race discrimination under Section 1981 not only requires students were treated differently. This is sufficient evidence sufficient to make out a prima facie case of evidence of disparate treatment . . . . Plaintiff has indeed discrimination under the McDonnell Douglas Corp. v. Green, come forth with sufficient evidence to demonstrate that 411 U.S. 792 (1973) framework, see Mitchell v. Toledo the students who were allowed to retake exams had the Hosp., 964 F.2d 577, 582 (6th Cir. 1992), it requires evidence most important characteristic, namely, they were that the discrimination was intentional. See General Bldg. Caucasian. The trial Court requires too much when it Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389-91 asks the Plaintiff to identify the similarly situated (1982). To establish her prima facie case in the context of her students by name, etc. contractual relationship with the Medical College, Ms. Bell must provide evidence that (1) she is a member of a protected Not surprisingly, Ms. Bell cites no authority for this class; (2) she suffered an adverse action at the hands of the proposition. Merely reading Fed. R. Civ. Pro. 56(e) would defendants in her pursuit of her education; (3) she was disabuse her of this view: qualified to continue in her pursuit of her education; and (4) she was treated differently from similarly situated students When a motion for summary judgment is made and who are not members of the protected class. See Mitchell, supported as provided in this rule, an adverse party may 964 F.2d at 582 (noting that a plaintiff may substitute for the not rest upon the mere allegations or denials of the fourth element in the typical McDonnell Douglas framework adverse party’s pleading, but the adverse party’s evidence that similarly situated individuals outside the response, by affidavits or as otherwise provided in this protected class received better treatment than he). Even rule, must set forth specific facts showing that there is a assuming that Ms. Bell could meet the third element of the genuine issue for trial. No. 02-3293 Bell v. Ohio State University, et al. 21 22 Bell v. Ohio State University, et al. No. 02-3293
FED . R. CIV . PRO . 56(e) (emphasis added). And this circuit requirements, the defendants dismissed her for purely has long held that “[m]ere conclusory and unsupported academic reasons. In short, she has wholly failed to present allegations, rooted in speculation, do not meet that burden.” any evidence to support her claim that the defendants violated Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1274 Section 1981. (6th Cir. 1974) (per curiam). Conclusion We think it is important to note here that not only does Ms. Bell egregiously misstate the law, she egregiously misstates For the foregoing reasons, we affirm the judgment of the her own deposition testimony. When asked whether she was district court. aware of other students who had missed the final exam for the internal medicine rotation in August of 1993, or who had been permitted to take makeup exams in internal medicine after missing the final, Ms. Bell responded that she did not know of or could not recall any such students. When asked whether she knew of any student who had been allowed to take makeup exams in any other clinical rotation, she said that she knew of such a student but could not recall the student’s name, the clinical rotation at issue, or any other specific detail about the student or the rotation. Significantly, she did not remember whether this unidentified student was a member of a minority race, although she thought the student was male. In short, we have read Ms. Bell’s deposition and we conclude that it contains no information whatsoever in support of her claim that she was treated differently from similarly situated medical students on the basis of her race, her gender or any other characteristic. Further, as the district court correctly held, Ms. Bell has presented no evidence whatever that the defendants purposefully discriminated against her on the basis of her race. To the contrary, the evidence is overwhelming that Ms. Bell did not meet the academic requirements of the Medical College and was withdrawn in 1994; the defendants reinstated her and went to great lengths to give Ms. Bell every opportunity to do those things which were required of her in order to earn her medical degree; when she failed and refused to comply with the requirements, the defendants engaged in three levels of committee review of that non-compliance; in 1997, after Ms. Bell had complied with none of those