United States District Court, N.D. Alabama, Southern Division
ABDUL K. KALLON, District Judge.
This lawsuit stems from Douglas Lee Rollins, III's dismissal for academic reasons from The University of Alabama at Birmingham School of Dentistry ("SOD") program after his first year. According to Rollins, the SOD should have allowed him to remediate the Dental Anesthesia course he failed or to repeat his first year. Doc. 20. Rollins contends that his dismissal violated his due process rights and that the SOD treated him less favorably than two classmates - an African American female (Comparator One) and a white female (Comparator Two). Consequently, Rollins filed this lawsuit against the Board of Trustees of The University of Alabama ("UAB") and Dean Michael S. Reddy, DMD (collectively "Defendants"), seeking declaratory and injunctive relief for alleged violations of his due process and equal protection rights under the Fourteenth Amendment and the Constitution of Alabama of 1901, Article I, §§ 1, 6, and 22 (Counts I and II), and, as to UAB solely, for alleged violations of his rights under Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972 (Counts III and IV). The court has for its consideration the parties' cross motions for summary judgment. Docs. 46, 48, 54. For the reasons outlined fully below, Defendants' motions are due to be granted, and Rollins' motion is due to be denied.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56 (c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c). "Rule 56 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Id. However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) ( per curiam ) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
II. FACTUAL BACKGROUND
UAB admitted Rollins to the SOD in the fall of 2011 and dismissed him before his second year for academic reasons. Doc. 50-1 at 22. The dispute in this case hinges, in part, on the SOD's practice of allowing students who fail a course a chance to remediate and hopefully obtain a passing grade. According to Rollins, the SOD's policies provide for remediation as an automatic right for all courses - a contention that the SOD disputes.
A. The Academic Guidelines, Academic Performance Committee, and Faculty Council
The Academic Guidelines (the "Guidelines") provide two mechanisms for a student to challenge a grade, and, if necessary, their proposed dismissal from the SOD. To appeal a grade,  a student must (1) attempt to resolve the disagreement with the course director, (2) file a written appeal to the chair of the department, and, if denied, (3) submit a final appeal to the Associate Dean. Doc. 50-2 at 3. A student must base an appeal on one of the following grounds:
1. The grading was not in accordance with the published course grading policy; 2. Inconsistencies were made in the application of evaluation standards among students; 3. A procedural error occurred in establishing the grade (i.e. mathematical error); 4. The grading was arbitrary or capricious; or 5. The grading was affected by considerations of basis of race, disability, gender, ethnicity, or religious affiliation.
The SOD utilizes a separate process to address overall academic performance issues. In pertinent part, the Guidelines state:
The Academic Performance Committee [APC] is charged with monitoring and assessing the academic status of students in the DMD program. The Associate Dean of Academic Affairs (Associate Dean) serves as the Chair of the APC.... The APC will review grades and other material pertinent to student progress and evaluate the information as it relates to established school policy. Based on this information, the APC will make recommendations to the Associate Dean regarding promotion, probationary status, repetition, remediation, and dismissal. The final decision of academic status rests with the Associate Dean.... [A]cademic decisions will be governed by the version of the Academic Guidelines in place at the time of the decision.
It should be noted that the APC reviews materials, in addition to grades, when determining promotion recommendations for students. Grades, professionalism including ethics, academic interactions, performance on the National Dental Board Examination, among other relevant indicators are considered in the evaluation process.
Students with satisfactory professional conduct, no standing course failure, and a yearly and cumulative grade point average  of 2.0 or greater may be recommended for promotion to the succeeding term....
A recommendation for repetition of the academic year will be made if the APC determines that a student has the potential to complete the DMD program, but has not met the criteria to justify promotion to the next class level....
A recommendation for academic dismissal may be made if sufficient evidence exists to indicate that a student will not be able to correct past academic deficiencies within a reasonable time. Once a student has been dismissed for academic reasons or ethics violations, future readmission to the SOD will not be considered.
[Any failing grade] may justify the APC's recommendation for repetition or dismissal....
Doc. 50-2 at 1-2. Basically, if a student receives a failing grade, "the APC will make recommendations to the Associate Dean as to whether to allow remediation of the failed course o[r] if more severe academic action is justified (repetition or dismissal)." Id. at 4. While "[a]ny failing course grade must be remediated, " however, "[s]ome courses, [such as the large preclinical/clinical courses and most basic science courses], may not offer remediation, as determined by the course director and Associate Dean." Id. at 5. Instead, students failing a basic science course may be offered an optional comprehensive examination in lieu of remediation "since the systems courses build on previously presented material." Doc. 51-9 at 6; see also doc. 50-2 at 5. Alternatively, "if no remediation is offered, the APC may allow a student to remediate a course while repeating the year." Doc. 50-2 at 5. The "APC and Associate Dean may consider other methods of remediation as well." Id. Finally, the APC may also recommend the dismissal of a student. Id.
SOD students can appeal the APC's recommendation to the Faculty Council,  which "[f]unction[s] as the executive committee of the faculty and as the advisory board to the Dean on... matters pertaining to academic and administrative policies." Doc. 52-12 at 8; see also doc. 50-2 at 3. "If a student believes there is reasonable cause to request an appeal, " the student must submit the request in writing "along with a rationale... for the request." Doc. 50-2 at 3. In accordance with the Guidelines, the Faculty Council will conduct a hearing at which the Associate Dean presents the "rationale for the recommendations and decision relating to the student's academic status" and the student presents her rationale in support of a reversal of the decision. Id. The Faculty Council's majority vote in support of the Associate Dean's decision "will end the appeal process at the SOD level." Id. at 4. However, a majority vote in favor of the student "will be followed by discussion and recommendations by the Council to the Dean of the SOD" and the Dean "may implement or modify the Faculty Council's recommendation." Id.
B. Rollins' Academic Performance
During the fall semester, Rollins earned two "A"s (Dentistry and Culture, and Evidence-Based Dentistry), seven "B"s (Fundamentals I and II, Ethics in Dentistry, Dental Radiology, Oral Microbiology/Immunology, Entry Level Clinical Skills, and Dental Anatomy), and two pass grades (Communications and Cultural Competency). Doc. 52-16 at 7. Rollins finished the semester with a 3.17 GPA and ranked 51 out of 56 in his first year class. Id.; doc. 53-4 at 2. The spring semester proved more challenging, with Rollins earning four "B"s (Case Based Education, Medical Emergencies, Periodontology, and PCD: Operative), three "C"s (Gross Anatomy, Neuroanatomy, and Cardiovascular and Renal Systems), one pass (High Stakes Assessments), and one "F" (Dental Anesthesia). Doc. 53-26 at 3. Rollins finished the semester with a GPA of 2.34, a cumulative GPA of 2.72, and a class rank of 54 out of 56. Id.; doc. 53-26 at 3.
Gross Anatomy and Dental Anesthesia caused Rollins particular difficulty. In Gross Anatomy, a basic science course in which the SOD "instituted a retest'" or competency examination for students who failed "within a certain grade range, " doc. 51-9 at 6, Rollins failed all the graded assessments and finished the course with a average of 53.3%, doc. 53-3 at 5; 53-26 at 3. Although the syllabus stated that only "[s]tudents who earn a grade of 60-69... will be allowed to take a competency exam..., " doc. 56-34 at 1, Dr. Steven Zehren, the course director, made an exception for Rollins because "a precedent had been set in 2009, " when seven students with averages below 60% were allowed to take the examination, and he "thought there would be little or no opportunity for [Rollins] to make up the course that summer, " doc. 56-35 at 7; see also docs. 52-23 at 8; 50-4 at 3. Rollins scored 80% on the comprehensive competency exam, which raised his final grade to a "C." Doc. 50-5 at 58.
In Dental Anesthesia, Rollins failed both examinations, and finished the course with a weighted grade of 67.46%. Docs. 51-3 at 9, 69; 53-35. Because Dr. Louis followed a practice of scaling a grade of 69.1 or higher to a "C, " Rollins failed the class by approximately 1.64 points. Doc. 51-3 at 14, 44. To make matters worse for Rollins, in non-basic science classes like Dental Anesthesia, the SOD contends that remediation "is not a prerogative" and "is a determination by the associate dean of academic affairs after consultation with the APC." Doc. 51-9 at 6.
On June 8, 2012, three months after the final examination, Dr. Louis reported Rollins' final grade to Dr. Tilashalski and posted the grades. Docs. 53-15 at 8.Thereafter, Rollins met with Drs. Louis and Tilashalski to discuss his grade and academic status, attributed his failing grade to his decision to get engaged during the semester, and asked about remediation. Docs. 51-10 at 3, 6-7; 50-6 at 71. Consistent with SOD policy, Dr. Tilashalski informed Rollins "when the APC [was] going to meet, " "what [the] potential consequences could be as a result of that meeting, " and "the appeal process both for the grade and for any potential academic status." Doc. 50-6 at 71; see also doc. 51-10 at 5.
C. Academic Performance of Alleged Comparators
Rollins identifies two classmates, who also experienced difficulties in the spring semester, as comparators. The Comparators failed Cardiovascular and Renal Systems, and also failed the comprehensive competency exam offered as remediation. Doc. 53-8 at 1. Comparator Two, a white female, whose other grades included three "B"s (Case-Based Education, Medical Emergencies, and PCD: Operative), four "C"s (Dental Anesthesia, Gross Anatomy, Periodontology, and Neuroanatomy), and one pass (High Stakes Assessments), finished with a 2.10 semester GPA, a 2.55 cumulative GPA, and a class rank of 55 out of 56. Docs. 52-12 at 21; 53-1 at 2. Comparator One, an African American female, finished the semester ranked last in the D1 class, and her other grades consisted of a "B" (PCD: Operative), six "C"s (Case-Based Education, Dental Anesthesia, Medical Emergencies, Periodontology, Gross Anatomy, and Neuroanatomy), and one pass (High Stakes Assessments), for a semester GPA of 1.95, and a cumulative GPA of 2.38. Docs. 52-13 at 16; 53-1 at 2. In other words, at the end of the first year, the students at the bottom of the class were Rollins (#54), Comparator Two (#55), and Comparator One (#56).
D. The APC's Review of Rollins, and Comparators One and Two's Academic Status
Rollins and Comparators One and Two's performances prompted the APC to review their academic standing. Ultimately, the APC voted to dismiss Rollins and Comparator One, and to allow Comparator Two to repeat the D1 year. Doc. 53-8 at 1-2. Prior to the vote, Dr. Tilashalski, in his capacity as chair, provided the committee with preliminary data that outlined details about the three students' academic performance. Doc. 52-23 at 2, 5. Dr. Tilashalski indicated that Rollins failed Cardiovascular and Renal Systems,  Dental Anesthesia (adding that he could not "recall the last time that a student has failed this course (if ever)"), and Gross Anatomy with a 53.3% average (but noted that Rollins "successfully passed the retest, " which the instructor allowed Rollins to take even though the syllabus "indicate[d] that a retest will only be offered to students that have final course grades between 60-69%"). Id. at 1-2, 5-6. Dr. Tilashalski subsequently provided the APC updated information that reported Rollins' final grades as: 67.5% in Dental Anesthesia, 53.3% in Gross Anatomy (ultimately, 80% after the comprehensive examination), "B" in Fundamentals I (although he pointed out that Rollins failed the first two examinations even though Rollins took the same course previously while pursuing a master's degree), 72% in Cardiovascular and Renal Systems, and "B" in Medical Emergencies (although he reported that Rollins failed the final examination and earned a "B" primarily because of a group project). Doc. 53-1 at 2. When the APC convened on June 20, 2012, doc. 56-8 at 1, after the committee members reviewed and discussed Rollins' academic performance, four members voted in favor of dismissal and two voted for repetition, doc. 50-3 at 44-45. Dr. Ramp, Rollins' advisor, abstained. Id.
Dr. Tilashalski informed Rollins the following day of the APC's decision and relayed the options for an appeal. Docs. 50-5 at 65; 52-7 at 10. As a result, Rollins devised a two-prong attack that consisted of appealing both the APC decision and his Dental Anesthesia grade. Consequently, a few days later, Rollins notified Dr. Louis of his intent to appeal his grade in Dental Anesthesia. Doc. 53-22 at 5. Because Rollins had completed step one when he met with Dr. Louis shortly before the June 8 posting of grades, see doc. 51-10 at 6-8, 16, Rollins proceeded to step two and filed a written appeal with Dr. Waite, in which he alleged that "[i]nconsistencies were made in application of evaluation standards among students, " and that "the grading was arbitrary, " doc. 53-22 at 5. In support of his appeal, Rollins presented a paper entitled "Clinical Complications of Dental Anesthesia, " doc. 50-1 at 29, presumably to demonstrate his competency in the subject matter. On June 30, 2012, Dr. Waite denied Rollins' grade appeal. Doc. 51-10 at 3. Rollins did not advance his appeal to step three. Docs. 50-3 at 36; 50-5 at 79-80.
Rollins separately challenged the APC's decision to dismiss him by filing an appeal to the Faculty Council on June 28, which he amended on July 3. Docs. 53-23; 53-24 at 1; 50-1 at 28; 60-61; 51-1 at 60; 52-7 at 1-9. When the Faculty Council met on July 3 to discuss Rollins' appeal, Dr. Tilashalski comprehensively summarized Rollins' academic record by noting Rollins' grades and the specific circumstances that led to a passing grade in some classes. Doc. 53-25 at 1. Dr. Tilashalski also pointed out that although Rollins earned a "B" in Fundamentals I, Rollins failed the first two examinations even though Rollins took the same course while pursuing his master's degree in oral biology. Docs. 53-25 at 1; 56-39 at 25-27. Next, regarding Gross Anatomy, Dr. Tilashalski reported:
Gross Anatomy was really the disturbing thing. Got a 53.3 percent course average. Failed every single assessment in the class.... His performance went down towards the end of the course. His last lab exam was 42 percent, his last written exam was 44 percent. [Rollins] attended all of the labs and extra help sessions. I mean, this is a student that is going. I mean, we can't say he didn't do well because he wasn't trying, he was there. [Rollins] expresses genuine interest in anatomy and said he wanted to do well in the course. He told me during my initial talk with him after his poor performance on the first quiz. And then it went down, it didn't get better. Which was really a question whether he could do it. Steve [Zehren] allowed [Rollins] to take the retest even though he didn't qualify for it. [Zehren's] syllabus says quite clearly, to qualify for the retest you have to get between a 60-6. So he really should have failed gross anatomy, he shouldn't have been qualified for the retest. He did pass the retest with an 80 percent, but never should have been allowed to take it. Should have been a straight failure with those numbers. Now the retest was meant for somebody that had a bad day. Oh, I just barely failed a course because, you know, I did have a bad day or, you know, I struggled a little bit. It is not I struggle[d] on every single assessment. You know, a 42 percent, boy! And so while he passed gross anatomy, we really look at this as really poor performance.
Doc. 56-39 at 26. In summary, Dr. Tilashalski informed the Faculty Council that Rollins "failed [Dental] Anesthesia, should have failed gross anatomy, and came in and was - performed poorly on a course he already had the previous year." Doc. 56-39 at 28. According to Dr. Tilashalski, the APC "looked at that [record] as somebody that... we are not sure can make it through." Id. Dr. Louis, who was a member of the Faculty Council, added after Dr. Tilashalski's presentation that he "curved the grades [in Dental Anesthesia], ... and [Rollins] still didn't meet the criteria [and] wasn't on the borderline." Doc. 56-39 at 35-36; see also doc. 56-50 at 1. Ultimately, after discussing Rollins' appeal, the Faculty Council voted unanimously to affirm the APC's decision to dismiss Rollins. Doc. 52-9 at 16-18.
The parties have filed cross motions for summary judgment. In a nutshell, Rollins alleges that he is due summary judgment because Defendants violated his equal protection and due process rights by failing to follow the Guidelines and the course syllabus when they denied his request for remediation in Dental Anesthesia, and that UAB violated his rights under Titles VI and IX by treating him less favorably than Comparators One and Two. Doc. 20. Defendants raise multiple arguments in favor of their motions, including that they are immune under the Alabama and United States Constitutions to Rollins' claims arising from alleged due process and equal protection rights violations. This opinion is divided into three parts. First, the court will analyze the immunity defenses in Section A. Second, the court will analyze the contentions regarding the substantive and procedural due process claims in Section B. Finally, the court will analyze the equal protection and Titles VI and IX claims in Section C.
In Counts I and II, Rollins asserts equal protection and due process claims for alleged violations of the United States and Alabama Constitutions. Defendants contend that they are entitled to immunity under the Eleventh Amendment and Alabama Constitution. As to the alleged violations of the United States Constitution, which Rollins is bringing pursuant to 42 U.S.C. § 1983, because "an unconsenting state is immune from lawsuits brought in federal court by the state's own citizens, " Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990) (citing Hans v. Louisiana, 134 U.S. 1 (1980)), UAB is immune from § 1983 liability as an instrumentality of the state, see Harden v. Adams, 760 F.2d 1158, 1164 (11th Cir. 1985) (citation omitted); Cox v. Bd. of Trs. of Univ. of Ala., 161 Ala. 639, 648 (Ala. 1909). Likewise, UAB is immune under the Alabama Constitution, which states, in relevant part, that the "State of Alabama shall never be made a defendant in any court of law or equity." Ala. Const. Art. I, § 14; Hutchinson v. Bd. of Trs. of Univ. of Ala., 256 So.2d 281, 283 (Ala. 1971). The Alabama Supreme Court has described this immunity as "almost invincible, " Ala. State Docks v. Saxon, 631 So.2d 943, 946 (Ala. 1994), and one that bars "almost every conceivable type of case, " Hutchinson, 256 So.2d at 282. Therefore, summary judgment is due to be granted as to Rollins' claims against UAB for alleged violations of the Alabama and United States Constitutions. However, Rollins is also pursuing a claim for injunctive relief against UAB. Moreover, he is only pursuing a claim against Dr. Reddy in Dr. Reddy's official capacity for prospective declaratory and injunctive relief, doc. 61 at 16 n.6, and, as such, Dr. Reddy is not entitled to Eleventh Amendment immunity in his official capacity for the alleged violations of the United States ...