Rollins v. Board of Trustees of The University of Alabama, The et al

Filing 5

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 07/30/12. (CVA)

FILED
2012 Jul-30 AM 08:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOUGLAS LEE ROLLINS, III,
Plaintiff,
vs.
THE BOARD OF TRUSTEES
OF THE UNIVERSITY OF
ALABAMA, et al.,
Defendants.

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Civil Action Number
2:12-cv-2458-AKK

MEMORANDUM OPINION
Before the court is Plaintiff Douglas Lee Rollins, III’s (“Rollins”) motion
for a preliminary injunction. Doc. 1-5. On July 5, 2012, Dr. Michael S. Reddy,
Dean of the School of Dentistry (“Dean Reddy”) at the University of Alabama at
Birmingham (“UAB”), dismissed Rollins from the School of Dentistry (“SOD”)
for academic reasons. See doc. 1-1, at 10. Rollins filed this action in the Circuit
Court of Jefferson County, Alabama on July 11, 2012 against the Board of
Trustees of the University of Alabama (the “Board”) and Dean Reddy in his
official capacity. Rollins alleges constitutional due process and equal protection
violations arising from his dismissal and seeks declaratory and injunctive relief
against both Defendants such that he “can either (1) repeat his first year of dental
school . . . or (2) be offered remediation and start his second year of dental school

Page 1 of 46

immediately.” Id. at 10-12. Rollins also alleges that he suffered gender
discrimination in violation of Title IX of the Education Amendments of 1972
(“Title IX”), 20 U.S.C. §§ 1681-1688 (1988), and seeks injunctive and declaratory
relief as well as compensatory damages from the Board. Id. at 12-13. On the day
of filing this action, Rollins also obtained an ex parte Temporary Restraining
Order from the state court judge enjoining Defendants “from preventing Plaintiff
from repeating his first year of dental school” and directing Defendants “to allow
Plaintiff to enroll as a first year dental school student for the term commencing on
Monday, July 16, 2012.” Doc. 2, at 17.
The Board and Dean Reddy properly removed this action on July 13, 2012
pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. Doc. 1. This court held a
telephone conference with the parties on July 13, 2012 regarding the state court
restraining order and Rollins’ corresponding motion for a preliminary injunction,
see doc. 1-5, and, in the interest of preserving the status quo, left the temporary
restraining order in tact.1 The court, however, also set the preliminary injunction

1

Defendants raised certain objections to the state court’s TRO during the telephone
conference and in their motion to dissolve, doc. 2—namely, Rollins failed to “certif[y] to the
court in writing the efforts, if any, which had been made to give the notice and the reasons
supporting the claim that notice should not be required,” Ala. R. Civ. P. 65(b), and that the state
court improperly granted the TRO without requiring any form of security, Ala. R. Civ. P. 65(c).
See also Spinks v. Automation Personnel Servs., Inc., 49 So. 3d 186, 191 (Ala. 2010) (“Alabama
law, however, clearly provides that [i]t is mandatory that security be given under Rule 65(c),
unless the trial court makes a specific finding based upon competent evidence that one or more of
the exceptions, stating them, do exist.”) (quotation marks and citations omitted, alteration and
emphasis in original). While the court is inclined to agree with Defendants’ objections,
nonetheless, the court decided to retain the state court’s TRO because it would have granted a
similar restraining order given the circumstances.
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motion for an evidentiary hearing, doc. 3, which the court held on July 19 and 24,
2012. After considering the evidence presented, for the reasons stated more fully
herein, Rollins’ preliminary injunction motion is due to be DENIED and the state
court’s temporary restraining order is due to be DISSOLVED, see doc. 2. The
court will enter a separate Order consistent with this Memorandum Opinion.
I.

Standard of Review

The Eleventh Circuit instructs that a “district court may grant injunctive
relief if the movant shows (1) a substantial likelihood of success on the merits; (2)
that irreparable injury will be suffered unless the injunction issues; (3) that the
threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party[;] and (4) that if issued the injunction
would not be adverse to the public interest.” All Care Nursing Serv., Inc. v.
Bethesda Mem’l Hosp., 887 F.2d 1535, 1537 (11th Cir. 1989). Moreover, “‘[a]
preliminary injunction is an extraordinary and drastic remedy not to be granted
unless the movant clearly establishes the “burden of persuasion” as to the four
requisites.’” Id. (quoting United States v. Jefferson Cnty., 720 F.2d 1511, 1519
(11th Cir. 1983)).
II.

Factual Background

The SOD utilizes Academic Guidelines that govern the academic affairs of
students. (Pl. Exh. 1).2 These Guidelines provide in relevant part:
2

Here, the Guidelines at issue are the December 29, 2011 guidelines. (P. Exh. 1).
Rollins presents two other versions dated March 27, 2012, (P. Exh. 18), and July 15, 2012, (P.
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ACADEMIC STATUS
The responsibility of the University of Alabama at Birmingham
School of Dentistry (SOD) includes the academic oversight of all
students pursuing the DMD degree. 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 meet on a regular basis, but no less frequently
than at the close of each term. 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.
These guidelines may be revised periodically, and academic 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.
...

Exh. 8), which the court finds irrelevant. As it relates to the March 27, 2012 version, Dr. Ken
Tilashalski (“Dr. Tilashalski”), Associate Dean of Academic Affairs for the SOD, testified that
this version is not, and never has been, in effect as it is merely a draft version. Moreover, the
March 2012 version is—for all relevant purposes—identical to the December 2011 Guidelines.
Compare (P. Exh. 1) with (P. Exh. 18). As it relates to the July 15, 2012 version, it is undisputed
that this version came into effect after the SOD dismissed Rollins. Accordingly, any reliance on
this document would be in error. Most importantly, Rollins failed to demonstrate that the July
15, 2012 version actually changed any procedures regarding remediation, repetition, or dismissal,
as opposed to redrafting language of the same procedures.
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Repetition/Dismissal
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 or for graduation . . . . Repetition of a year for
academic deficiencies . . . will be allowed to occur only once.
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 period of time. Once
a student has been dismissed for academic reasons or ethics
violations, future readmission to the SOD will not be considered.
...
Any of the following conditions may justify the APC’s
recommendation for repetition or dismissal:
Any failing grade.3
A failing grade and subsequent failure of the remediated
course.
Nonfulfillment of the outlined remediation of a failed course.
Lack of appropriate professional development.
Non-compliance with the Student Code of Ethics.
Continued poor/marginal academic performance.
...

3

Rollins also presents a SOD website printout titled “Repetition and Dismissal” which
states that “[t]wo or more failing grades during an academic year” are required for dismissal from
the SOD. (Pl. Exh. 13). Dr. Tilashalski testified that this link existed inadvertently on the
internet from the 2008 Academic Guidelines, and, currently, the effective Academic Guidelines
are on SharePoint—UAB’s intranet system. Perhaps more importantly, there is no evidence that
Rollins knew about or relied on these Guidelines prior to this litigation.
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GUIDELINES FOR APPEAL
Grade Appeal
A student may appeal a grade in a course if he/she feels one of the
following applies: 1. The grading was not in accordance with
published course grading policy; 2. Inconsistencies were made in
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 student should seek resolution using the following steps.
1)

Clarification should be sought from the course director in an
attempt to resolve the disagreement without further appeal . . . .

2)

If the matter is not resolved by consultation with the course
director, the student may submit a written appeal to the chair of
the department in which the course is given . . . .

3)

If the chair’s decision is against appeal, the student may make a
final appeal to the Associate Dean. This must be done within
two days after the department chair’s decision. The Associate
Dean will review the matter and then make a decision whether
or not to dismiss the appeal. If the decision is to hear the
appeal, the Associate Dean will appoint an ad hoc committee of
four faculty members and one student to conduct a hearing . . . .
The ad hoc committee will make a recommendation to the
Associate Dean, whose decision will be final.

Academic status appeal
If a student believes there is reasonable cause to request an appeal of
the decision made by the Associate Dean for dismissal or repetition of
a year, the student must address a request in writing to the Chair of
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the Faculty Council along with the rationale or basis for the request
within one week of the notification of the academic actions.
...
The Chair of the Faculty Council will communicate the results of the
vote and any recommendations to the Dean and the Associate Dean.
The Dean may implement or modify the Faculty Council’s
recommendation. The Dean of the SOD or their designee will issue a
written final decision to the student via certified mail or hand delivery
with copies distributed to the Chairs of the Faculty Council and to the
Associate Dean. The Dean’s decision is final for the SOD.
THE GRADING SYSTEM
Grades are intended to reflect the performance or degree of learning
by the individual student. All grades are assigned after a careful
review of information about a student’s performance that was
obtained in a systematic, reliable, and valid a manner as possible . . . .
F

An unacceptable performance. The F grade indicates that the
student’s performance in the required exercises has revealed
poor understanding of the course content and a lack of
competency in the stated area. The APC will make
recommendations to the Associate Dean as to whether to allow
remediation of the failed course of[sic] if more severe academic
action is justified (repetition or dismissal). If remediation is
allowed, the course director must submit to the student,
department chair, and the Office of Academic Affairs a
Deficient Grade Report Form . . . assessing the student’s
performance and potential, and outlining a remediation plan.

...
Remediation
Any failing course grade must be remediated. A fee, as approved by
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the University and the [Board], will be charged for any course that is
remediated. Remediated courses will have a new course number, and
will be graded on the Pass/Fail system. The original course grade as
well as the remediated course grade will both appear on student
transcripts. Some courses may not offer remediation, as determined
by the course director and the Associate Dean. Examples of such
courses are large preclinical/clinical courses, and most basic science
courses. In the basic science curriculum, an optional comprehensive
examination may be offered instead of remediation. If no remediation
is offered, the APC may allow a student to remediate the course while
repeating the year. The APC and Associate Dean may consider other
methods of remediation as well.
Id.
A.

Comparator Students and Courses

In a nutshell, Rollins’ case rests on his contention that the SOD treated him
less favorably than two similarly situated female students who also failed one of
their first year classes.4 Specifically, Rollins maintains that the SOD allowed these
two female students to “remediate” the class they failed (Cardiovascular & Renal
Systems), whereas the SOD did not offer him a similar option when he failed
Dental Anesthesia. As it relates to the relevant course syllabi for the classes in
question, the Cardiovascular & Renal Systems course syllabus stated “Students
who receive a grade between 65-69.99 may be eligible for remediation. A
remediation exam that will be comprehensive will be scheduled two weeks after
the completion of the course. If a student scores above a 70 on the remediation

4

To avoid revealing confidential academic information, the court refers to the two other
dental students discussed in this litigation as “Student 1” and “Student 2.”
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exam, then a grade of 71 will be submitted as your final grade within the course
(an equivalent of a C). If a student fails the remediation exam, then their course
grade is what will be reported. Students who receive a course grade below 65 will
receive an F for their grade with NO chance of remediation.” (Pl. Exh. 11). The
course syllabus for Dental Anesthesia provided that Dr. Patrick J. Louis served as
the course master, and under section 3 entitled “Remediation”—“Essay exam on
selected topics or oral exam.” (Pl. Exh. 4). Rollins asserts that this language in
the syllabus and other SOD policies granted him the automatic right to remediate
his failing grade.
B.

Dental Anesthesia Grade

On February 7, 2012, after receiving a failing 67.2% on his Dental
Anesthesia midterm exam, see (D. Exh. 22), Rollins emailed Dr. Louis about “any
suggestion you have for me towards picking up this material.” (Pl. Exh. 9, at *1).
A few days later, after making an appointment, Rollins met with Dr. Louis, and
Dr. Louis suggested that Rollins look at old exam material to help study. While
Rollins testified that he had some concern about the honor code policy as it relates
to viewing old exams, Dr. Louis testified that he explicitly allowed students to
study his old exams. Thereafter, in late February or early March 2012, Rollins
also failed the Dental Anesthesia final exam with a score of 64.1%. (D. Exh. 22).
Nonetheless, Rollins showed no urgency because he believed the clinical portion
of the class—a single injection the students gave to each other—would help him
pass the class. However, a few months later, Rollins became concerned because,
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on May 23, 2012, Rollins emailed Dr. Louis stating “I am not sure how the
injections factor into our averages, but currently my average is a 67.46%. I am
concerned about passing the course and wanted to know how to proceed.” Id. at
*3. Dr. Louis testified that he gave all students full credit for participation in the
“injections” exercise, as revealed on UAB’s BlackBoard system where Rollins
discovered his failing class average. (D. Exh. 22). In other words, after including
the clinical portion of the grade, Rollins still maintained a failing average of
67.46%.
Because Rollins realized that he had failed the class, he made several
attempts to contact Dr. Louis, see (Pl. Exh. 9, at *2), and finally met with Dr.
Louis on June 4, 2012. Dr. Louis testified that Rollins asked him about
remediation and that he informed Rollins that the APC would have to decide
whether to allow remediation for the failing grade, and that, if it did, the
remediation may include an essay or oral exam. Later that day, Rollins emailed
Dr. Louis with certain “areas where I may have struggled to understand;” Rollins
also stated “[w]hen you have decided the appropriate means for remediation please
let me know how to proceed.” Id. at *4.
C.

Rollins’ Efforts After-the-Fact to Change Grade

After meeting with Dr.Tilashalski on June 6, 2012 regarding his academic
status, Rollins emailed Dr. Louis on June 7, 2012 and outlined that he learned that
he would not have an automatic opportunity to attempt to erase the F as he had
initially thought:
Page 10 of 46

I met with Dr. T yesterday and wanted to update you on our
discussion. He said remediation is up to the discretion of the course
director. In other courses this semester, students with an average
below 70% were given an opportunity to take a competency exam or
final remediation examination. Upon passing the exam, students were
assigned a final average of “C”. However, despite my 67.5% final
average, my current understanding as to the means of remediation for
your course is different. There is no opportunity for remediation to
obtain a final “C” average. I don’t know why remediation for your
course differs from that of other course this semester. As it stands
now, a “F” will appear on my transcript in addition to a $500.00 fine.
The “F” will absolutely devastate my GPA. My case is then
presented to an academic performance committee and they will
determine the appropriate course of action being one of three things:
1. remediate of the course in some fashion
2. repeat the entire year
3. dismissal
Id. at *5 (emphasis added). Recognizing the severity of the situation, Rollins
basically asked Dr. Louis if there was anything Rollins could do after-the-fact to
get additional credit:
I would like to inform you I will go to any means necessary to make
up the 2.5% deficit for a passing grade in dental anesthesia. I dearly
hope this issue can be resolved between you and I. I do not want to
end up with a “F” for my final average nor incur the $500.00 fine or
even worse, repeat the year. I have been working on the list of
subjects you requested during our last meeting regarding clinical
complications. I will have a document for you to review on Monday.
Upon review, I hope you will consider the document as an assignment
permitting me to pass the course with a 70%. I will be available in
your clinics to receive your decision.
Id. (emphasis added).
Rollins also emailed Dr. Tilashalski on June 7, 2012, inquiring into the
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remediation policy for Dental Anesthesia—“Why is the policy for remediation in
dental anesthesia different than that for gross anatomy and cardio/renal? Is it
because Dr. Louis does not have as much time for students compared to that [of]
Dr. Zehren and Dr. Elzie? I know students remediated in cardio/renal this year
and I feel I was not given the same opportunity towards remediation as those
individuals. They will end up with a C for the course and avoid a $500 fine,
where I will have to accept my F, wrecking my GPA, and pay a $500 fine. I think
this is unfair. I do not think the policy should differ regardless of the course.”
(Ct. Exh. 4, at *4). Rollins continued “[a]lso, why am I just now finding this out?
In other courses, students were notified within a week of there[sic] remediation
opportunities by the course instructor. Dental anesthesia ended in March. All the
communication to voice my concern was done on my behalf and it tooks[sic] 2.5
weeks just to get an appointment. I think this is unacceptable.” Id.
Dr. Tilashalski responded the same day on June 7, 2012, explaining to
Rollins that:
We instituted a “retest” in the basic science curriculum only. This
was to be open to students that failed a course within a certain grade
range and is not open to any failing grade. The thought was that since
the systems courses build on previously presented material, a student
could not progress through the curriculum until they demonstrated
understanding of the material—if we did not allow for additional
study time and a new final exam, then any failing grade would
automatically trigger repetition of the year or dismissal from school.
You are undoubtedly familiar with this process as Dr. Zehren allowed
you to retest in Gross Anatomy–even though you should not have
been allowed to do so based on your overall average for the course
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which was 53.3%, which is well below the allowable range of 6069% as posted in the course syllabus.5
The retest for these select courses is a different process from
remediation.
Grades for the term are not due until June 15. And remediation is not
a prerogative of the course director—as we discussed yesterday,
allowing for remediation is a determination by the associate dean of
academic affairs after consultation with the academic performance
committee (APC). A decision as to whether to allow for remediation
will be made after the APC meeting scheduled for June 20.
Id. at *3. Moreover, Dr. Tilashalski testified that during the June 6, 2012 meeting,
he discussed the APC procedures and disclosed the members of the APC to
Rollins so that Rollins could meet with the committee members if he wanted.
Rollins, in fact, met with at least two APC members prior to the June 20, 2012
committee meeting.
In addition to meeting with some APC members, Rollins also tried again to
get Dr. Louis to change his grade. For example, Rollins emailed Dr. Louis on
June 11, 2012 and attached “a document I composed regarding clinical
complications and anesthesia . . . . I had originally hoped this document could
salvage the 2.5 points necessary to pass the course before grades are due at week’s
end. Since we last spoke, I had a misunderstanding of remediation. Apparently,

5

The “Dental Gross Anatomy” syllabus stated that “[s]tudents who earn a grade of 60-69
in the course will be allowed to take a competency exam about one week after the course ends.
The competency exam will be comprehensive and will include both a lab and a written
component. If a student receives a grade of 70 or higher on the competency exam, he/she will
then receive the lowest possible passing grade for the course (ie, 70=C).” (D. Exh. 9).
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there is a different policy for your course that does in fact differ from the basic
science courses with regards to a ‘retake’ examination[]. Lastly, I am open to the
idea of volunteering during any of your continuing education courses to help out
in any way. Please reconsider my final average in your course.” (Pl. Exh. 9, at
*6).
D.

APC Meeting and Decision to Dismiss Rollins

In accordance with the Academic Guidelines, the APC met on June 20,
2012, to discuss, among other things, the first year dental students with
outstanding failing grades—Student 1, Student 2, and Rollins. (Ct. Exh. 4, 5).
The minutes from this meeting provide that, as it relates to Student 1:
[F]ailed course #1260 (Cardiovascular & Renal Systems) with a 66%
mean average. She qualified for a comprehensive competency exam,
and failed this as well with a 63%. She was ranked 55/56 students
following the fall 2011 term. She also earned “C” grades in Dental
Anesthesia (was one of only 6 students that earned a “C” grade),
Periodontology D1 (one of only 8 students that earned a “C” grade),
Gross Anatomy, & Neuroanatomy. She was one of only 10 students
to receive a “B” in PCD” Dental Anatomy & one of only 11 students
to receive a “B” in PCD: Operative which puts her in the bottom 20
% of the class in the preclinical curriculum as well. After extensive
discussion, the consensus of the committee was that [Student 1]
showed enough potential to be allowed to repeat the D1 year in its
entirety.
(Ct. Exh. 5, at *1). For Student 2:
[F]ailed course #1260 (Cardiovascular & Renal Systems) with a 65%
mean average. She qualified for a comprehensive competency exam,
and failed this as well with a 59%. She was ranked 56/56 students
following the fall 2011 term. She also earned “C” grades in CasePage 14 of 46

Based Education 1 (failed the take-home, open book final exam &
was one of only 2 students that earned “C” grades in the course),
Dental Anesthesia (was one of only 6 students that earned a “C”
grade), Medical Emergencies (failed the final exam with a 55% and
was one of only 2 students that earned a “C” grade in the course),
Periodontology D1 (one of only 8 students that earned a “C” grade),
Gross Anatomy (initially failed the class with a 63.5% but qualified
for a comprehensive competency exam and passed with a 84.7%), &
Neuroanatomy. She was one of only 10 students to receive a “B” in
PCD” Dental Anatomy & one of only 11 students to receive a “B” in
PCD: Operative which puts her in the bottom 20% of the class in the
preclinical curriculum as well. After extensive discussion, and due to
the global marginal performance in all of her classes, the consensus of
the committee was that [Student 2] be dismissed from the SOD.
Id. at *1-2. Finally, for Rollins, the minutes provide:
Rollins failed course #1215 (Dental Anesthesia). He ranked 51/56
students following the fall 2011 term. He also earned “C” grades in
Gross Anatomy (initially failed the class with a 53.3% having failed
all 8 assessments in the course. According to Dr. Zehren, the course
director, [Rollins’] performance went down toward the end of the
course, as his last exam was a 42% and his last written exam was
44%. Lee did attend all of the labs and extra help sessions, and
indicated to the course director that he wanted to do well in the course
during an initial talk after his poor performance on the first quiz. Dr.
Zehren allowed him to take the comprehensive competency exam
even though his overall mean average fell below the cut-off point of
60%, [Rollins] passed the exam with a 80.0%).6 He also received “C”
grades in Neuroanatomy and Cardiovascular & Renal Systems.
While he received a “B” grade in Medical emergencies, he failed the
final exam with a 65%). While he took Fundamentals I & II before

6

Dr. Tilashalski also forwarded to the APC an email from Dr. Zehren regarding the
decision to allow Rollins to take the competency exam. According to Dr. Zehren, since he
allowed students in the past to take the competency exam with final averages below 60%, he
afforded Rollins the same chance, and, as Rollins and Student 2 “passed this exam[,] I believe
their understanding of anatomy is adequate for their future career as dentists.” (Ct. Exh. 4, at *5).
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admission to the DMD program as masters in science student, he
failed the first two exams in Fundamentals I in the fall of 2011 as a
dental student. After extensive discussion, the consensus of the
committee was that Mr. Rollins be dismissed from the SOD.
Id. at *2.
In light of the APC’s decision, Dr. Tilashalski sent Rollins a letter on June
21, 2012 to inform him that “The Academic Performance Committee met and
discussed grades for the year-end review of students. It was noted that you earned
a failing grade in Dental Anesthesia (course #1215). Also, it was noted that you
have experienced academic difficulties throughout your D1 year and have
performed marginally in a number of courses. The Committee recommends that
you be dismissed from the School of Dentistry. I concur with that
recommendation.” (D. Exh. 3). Dr. Tilashalski personally met with Rollins on
June 22, 2012, and also testified that he explained to Rollins the appeals procedure
for the dismissal and provided the identity of the Faculty Council chair person—to
whom, pursuant to the Academic Guidelines, the appeal is made.
E.

Rollins’ Appeal of his Dental Anesthesia Grade

Since Rollins’ efforts to get Dr. Louis to change his grade proved
unsuccessful, and, perhaps, in light of the APC’s decision, Rollins decided next to
appeal the grade. Consequently, on June 26, 2012, four days after the APC’s
decision to dismiss him from the SOD, Rollins emailed Dr. Louis appealing his
final grade “on the basis of 2. Inconsistencies were made in application of
evaluation standards among students, and 4. the grading was arbitrary, as listed on
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page 3 of the UAB Academic Guidelines.” (Pl. Exh. 9, at *7). Rollins also
provided that “I have been informed from other dental students in a similar
situation that their case was handled differently in the past.” Id. Finally, Rollins
asked Dr. Louis to “please consider my previously submitted document, which I
have attached below, into your decision as noted in Item #3 of the course
syllabus.” Id. This attachment refers to the 9-page paper Rollins gave to Dr.
Louis in hopes of obtaining extra credit after-the-fact. Id. at *5 (“I will have a
document for you to review on Monday. Upon review, I hope you will consider
the document as an assignment permitting me to pass the course with a 70%.”).
The next day, June 27, 2012, Rollins emailed Dr. Waite, the department
chair, to also appeal his Dental Anesthesia grade. Id. at *8. Rollins stated the
same basis for appeal as provided to Dr. Louis and also stated that “current
students have informed me that under a similar situation, their case was handled
differently. Specifically, they passed the course or similar course (Pain &
Anxiety) #1207 with a final average below which mine is currently listed.” Id.
Moreover, the email provided that “[m]aterial was submitted to the course director
as requested, but I have not received a response regarding this decision. Attached
is the material I submitted to him. It is a nine page document regarding clinical
complications and anesthesia.” Id. Rollins also asked Dr. Waite “how to proceed
with you to resolve this issue.” Id.
Dr. Louis responded on June 30, 2012 providing “I have reviewed the
recommendation from the APC and your appeal. Unfortunately, based on all of
Page 17 of 46

the information I am denying your grade appeal and your request to remediate.
Your appeal will be reviewed by the chair of our department, Dr. Peter Waite.” Id.
at *10. In turn, Dr. Waite emailed Rollins on the same day, stating that “I
reviewed your appeal, academic record and discussed this with Dr. Louis. I do not
find grounds to reverse his decision. Unfortunately you did not pass the course. I
am sorry.” Id. at *11. Subsequently, Rollins replied to Dr. Waite asserting that
“my request to Dr. Louis, as discussed in a previous meeting, was for remediation
as provided in the Dental Anesthesia #1215 syllabus under item #3. I was never
afforded this opportunity. Could you please explain the reasoning for your
decision.” Id. at *12.
F.

Rollins’ Appeal of his Dismissal

On June 28, 2012, pursuant to the Academic Guidelines, Rollins appealed
his dismissal to the Faculty Council. (D. Exh. 23). Dr. John Ruby, Chair of the
Faculty Council, sent Dean Reddy a letter on July 5, 2012, stating that “[o]n
Tuesday, 07/03/2012, Faculty Council met from 4:00 PM to 7:00 PM to conduct a
hearing of dental student appeals regarding their academic status as determined by
the Academic Performance Committee. The meeting was conducted in accordance
with the Academic Status Appeal of the School of Dentistry’s Academic
Guidelines (revised 12/29/2011). A majority ruling by secret ballot indicated that
Faculty Council was in agreement with the Academic Performance Committee
decision: 1) [Student 1] be allowed to repeat D1 year in its entirety, 2) [Student 2]
be dismissed from the School of Dentistry, 3) Douglas Lee Rollins be dismissed
Page 18 of 46

from the School of Dentistry.” (D. Exh. 5).
The minutes from the Faculty Council’s meeting establish that Dr.
Tilashalski provided the Council with minutes from the June 20, 2012 APC
meeting; “Laura Cotlin, Faculty Council, obtained additional information on the
performance of [student 2] and [Rollins] regarding their failing grades in Gross
Anatomy;” “[a]n Academic History Report was obtained from Dr. Steve Filler;”
and “class standing and grades were available for each student.” (Ct. Exh. 6, at
*1). Moreover, “[i]t was noted that: [Student 1] had a class rank of 55/56 and a F
in Cardiovascular & Renal Systems; [Student 2] had a class rank of 56/56 and a F
in Cardiovascular & Renal Systems; [Rollins] had a class rank of 54/56 and a F in
Dental Anesthesia.” Id. After stating that Dr. Tilashalski presented the APC’s
justifications for each recommendation, the minutes note that “[i]n addition []
Rollins’ paper entitled ‘Clinical Complications’ was handed to Dr. Louis as an
unsolicited document and was not authorized as remediation for failing the Dental
Anesthesia course. Moreover, Dr. Tilashalski found evidence of potential
plagiarism in ‘Clinical Complications’ utilizing an academic plagiarism detector
(www.turnitin.com). Also, Dr. Ruby indicated that [student 2] and [Rollins] failed
his open-book cariology essay exam that was part of their PCD: Operative course,
and after handing out these examinations Dr. Ruby asked that all students that
failed the examination to please come in and talk to him within the next 2
weeks—Mr. Rollins and [student 2] never came in to discuss why they failed this
examination. There were concerns that Mr. Rollins should not have been given a
Page 19 of 46

competency examination in Gross Anatomy since his failing average was 53.” Dr.
Tilashalski then excused himself from the Faculty Council meeting. Id. at *1-2.
Additionally, the Faculty Council heard presentations from Rollins, Student
1, and Student 2. The minutes provide that “Rollins had Dr. Merrie Ramp as a
witness—her comments were complimentary. Dr. Patrick Louis recused himself
during Mr. Rollins’ oral presentation7 . . . . Prior to entering dental school
[Rollins] was a graduate student of Oral Biology at UAB dental school and was
not granted a M.S. degree since his overall grade point average was < 3.0 although
he did complete a thesis defense.” Id. at *2. Following the student presentations,
the Faculty Council met in closed session to discuss each student’s appeal. By
secret ballot, the Council upheld the decision to dismiss Rollins from the
SOD—seven votes in favor and none opposed. Id. at *3.
III.

Analysis

Rollins asserts constitutional violations of procedural due process,
substantive due process, and equal protection, see 42 U.S.C. § 1983,8 and Title IX

7

Dr. Louis testified that he left the room to allow Rollins to speak freely about Dr. Louis
and the Dental Anesthesia class.
8

“Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .” 42
U.S.C. § 1983.
Page 20 of 46

violations, see 20 U.S.C. § 1681(a).9 The court finds that Rollins failed to
demonstrate a substantial likelihood of success for each claim and therefore cannot
satisfy the heavy burden warranting a preliminary injunction. The court will
address each individual claim in turn; however, before addressing the merits, the
court notes that the Eleventh Circuit recently reiterated that “no tenent of
constitutional law is more clearly established than the rule that a property interest
in continued enrollment in a state school is an important entitlement protected by
the Due Process Clause of the Fourteenth Amendment.” Barnes v. Zaccari, 669
F.3d 1295, 1305 (11th Cir. 2012) (citing Gross v. Lopez, 419 U.S. 565, 576 n.8
(1975) (“[T]he lower federal courts have uniformly held the Due Process Clause
applicable to decisions made by tax-supported educational institutions to remove a
student from the institution long enough for the removal to be classified as an
expulsion.”)).10
A.

Procedural Due Process

“With respect to the procedural due process claim, the legal standard
governing academic dismissals was enunciated in the Supreme Court’s decision”

9

“No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance . . . .” 20 U.S.C. § 1681(a).
10

Conversely, the court notes that the Supreme Court in Board of Curators of the
University of Missouri v. Horowitz, 435 U.S. 78, 84-85 (1978), and Regents of the University of
Michigan v. Ewing, 474 U.S. 214, 222-23 (1985)—the two seminal cases on due process rights
in the academic dismissal context—merely assumed, without deciding, the existence of a
constitutionally protectible property right in continued enrollment at a state university.
Page 21 of 46

in Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 86
(1978). Haberle v. Univ. of Ala. at Birmingham, 803 F.2d 1536 (11th Cir. 1986).
Generally, “‘[t]he very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation.’” Horowitz, 435
U.S. at 86 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
And indeed, the Court maintained that this “need for flexibility is well illustrated
by the significant difference between the failure of a student to meet academic
standards and the violation by a student of valid rules of conduct. This difference
calls for far less stringent procedural requirements in the case of an academic
dismissal.” Id. Put differently, “[a]cademic evaluations of a student, in contrast to
disciplinary determinations, bear little resemblance to the judicial and
administrative fact-finding proceedings to which we have traditionally attached a
full-hearing requirement.” Id. at 89. “Like the decision of an individual professor
as to the proper grade for a student in his course, the determination whether to
dismiss a student for academic reasons requires an expert evaluation of cumulative
information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.” Id. at 90.
Accordingly, the Court refused to require a hearing for academic dismissals,
and, as such, declined “to further enlarge the judicial presence in the academic
community and thereby risk deterioration of many beneficial aspects of the
faculty-student relationship.” Id. Thus, based on Horowitz, the Eleventh Circuit
established that, for academic dismissals, “the decision-making process need only
Page 22 of 46

be ‘careful and deliberate’” to survive a procedural due process challenge.
Haberle, 803 F.2d at 1539 (quoting Horowitz, 435 U.S. 85-87).
Here, Rollins focuses on two alleged procedural due process violations: (1)
unestablished and arbitrary course remediation procedures and (2) the timing of
the APC’s recommendation for dismissal compared to the availability of a grade
appeal. See doc. 1-1, at 9-10. Unfortunately for Rollins, he failed to establish a
substantial likelihood of success on either purported violation.
1.

Alleged Arbitrary Remediation Procedures

Throughout the preliminary injunction hearing, Rollins primarily argued
that Defendants utilized arbitrary procedures for determining whether to allow
remediation for a failing grade. Rollins contends that while certain courses
allowed for “automatic” remediation, Defendants failed to offer remediation for
the class he failed—Dental Anesthesia. However, the Academic Guidelines and
Dr. Tilashalski’s testimony reveal a convincing justification for the policy
distinction. Beginning approximately four years ago, the SOD changed its
policies for basic science courses, such as Gross Anatomy and Cardiovascular &
Renal Systems, to allow students to retake a “comprehensive competency” exam if
he or she receives a failing grade within a certain range (e.g. between 65-69 or 6069). See (D. Exh. 9); (Pl. Exh. 11). The SOD implemented this policy because
these courses are foundational in nature, and a student cannot continue his or her
studies without an adequate knowledge of the given basic science. To account for
the foundational nature of the classes, the SOD allows the students to take a
Page 23 of 46

comprehensive exam to salvage a failing grade in the course. Under this system,
although the student ended the class with a failing average, a student only “fails”
one of these courses if he or she fails the comprehensive competency exam. In
contrast, other courses, that are not as “foundational,” may offer a distinct
“remediation” for a failing course grade. However, in these courses, the “F”
actually is reflected in the transcript and, significantly, the decision to allow
remediation rests with the Associate Dean at the recommendation of the
APC—“The APC will make recommendations to the Associate Dean as to whether
to allow remediation of the failed course [or] if more severe academic action is
justified (repetition or dismissal).” (P. Exh. 1). Put simply, based on the policies
and overwhelming testimony, the SOD offers a competency exam in certain basic
courses that the SOD decided could not be singularly “remediated” and that would
necessarily require repetition or dismissal upon a failing grade. See (Ct. Exh. 4, at
*3).11 Likewise, the weight of the evidence does not support Rollins’ contention
that he had an automatic right to remediation in non-basic courses. Based on the
evidence before this court, the decision to distinguish basic science classes from
other classes was “careful and deliberate,” and, as such, survives Rollins’
procedural due process challenge.
Furthermore, Rollins failed to establish a substantial likelihood that, from a

11

To the extent Rollins maintains that Defendants violated due process by denying
“mandatory remediation,” the court hesitates to even assume some constitutionally protected
property right in remediation of a dental school class. See Barnes, 669 F.3d at 1305.
Page 24 of 46

procedural standpoint, the decision to dismiss—rather than allow remediation of
Dental Anesthesia—violated due process. Pursuant to the Academic Guidelines,
“any failing grade” may justify the APC’s recommendation for repetition or
dismissal. (P. Exh. 1). As Rollins failed Dental Anesthesia, the APC met on June
20, 2012, and discussed Rollins’ course failure, as well as his overall academic
performance, see (Ct. Exh. 5, at *2), as allowed by the Guidelines. See (P. Exh. 1)
(“It should be noted that the APC reviews materials, in addition to grades, when
determining promotion recommendation for students . . . .”). Indeed, even Rollins’
own advisor and supporter, Dr. Merrie Ramp, a member of the APC, testified that
the APC looks at a student’s full body of work. In that regard, based on Rollins’
entire performance as a first year, which included the F in Dental Anesthesia and
failing sixteen exams during the school year, the APC recommended dismissal,
and Dr. Tilashalski, the Associate Dean, accepted this recommendation as his
decision. See id. (“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 period of time.”).
Moreover, consistent with the SOD policies, Rollins appealed the dismissal
and received a formal hearing by the Faculty Council. (Ct. Exh. 6). The Faculty
Council received the APC’s minutes and a presentation regarding the APC’s
recommendation by Dr. Tilashalski, reviewed Rollins’ failing exams and overall
grades including an Academic History Report, and considered Rollins’ pre-dental
school academic history at UAB. Id. at *1-2. Dr. Tilashalski also presented the
Page 25 of 46

“Clinical Complications” paper Rollins prepared for Dr. Louis and included with it
a report by “turnitin.com”—an academic plagiarism detector. Id. Additionally,
the Faculty Council heard testimony from Rollins and his faculty advisor, Dr.
Ramp. Thereafter, following deliberation, the Council voted by secret ballot and
unanimously approved the Associate Dean’s dismissal. Id. at *3. Finally, Dean
Reddy adopted the Faculty Council’s decision.
Given the extensive levels of review provided before dismissing Rollins,
based on the evidence presented at the injunction hearing, Defendants’ procedures
appear sufficiently “clear and deliberate.” In fact, the court notes that the
procedures utilized by Defendants are substantially similar to those accepted by
the Supreme Court in Horowitz. The plaintiff in Horowitz, a former University of
Missouri-Kansas City medical student, performed poorly on her “rotational units,”
and the “Council on Evaluation” recommended that plaintiff “be dropped from the
school.” 435 U.S. at 81. The plaintiff finished the semester on a probationary
status, and after receiving all rotation reports, the Council on Evaluation
reaffirmed its recommendation to dismiss plaintiff from the medical school. The
Coordinating Committee and Dean approved the recommendation. Plaintiff
appealed the decision to the Provost, who “sustained the school’s actions after
reviewing the record compiled during the earlier proceedings.” Id. at 81-82.
Thus, the plaintiff in Horowitz received no opportunity to present witnesses or
evidence on her behalf, and the Court still found “[t]he ultimate decision to
dismiss [plaintiff] [] careful and deliberate.” Id. at 85. Similar to the plaintiff in
Page 26 of 46

Horowitz, Rollins also cannot legitimately claim lack of notice as the Academic
Guidelines establish that a failing grade may result in dismissal. See (P. Exh. 1).
Additionally, in Haberle, the Eleventh Circuit accepted UAB’s ad hoc
procedures prior to dismissing a student where UAB (1) afforded the student two
opportunities to take a preliminary qualifying examination, (2) allowed the student
to discuss his dismissal with the co-dean of the graduate school, the graduate
committee, and the Dean of the School of Natural Sciences and Mathematics, and
(3) appointed an impartial committee to review his complaint after he submitted
any further information to support his contentions. See 803 F.2d at 1539. In
contrast, here, since Defendants posted the Academic Guidelines to all dental
students, and these Guidelines specifically established the multiple level review
processes used by Defendants to dismiss Rollins—rather than utilizing the ad hoc
procedures the Eleventh Circuit still accepted—the procedural due process claim
regarding dismissal is likely to fail.
2.

Alleged Timing Deficiencies

As additional grounds for a purported procedural due process violation, at
the preliminary injunction hearing, Rollins also repeatedly addressed the timing of
the APC’s recommendation for dismissal and any available grade appeal. It is
undisputed that the APC meets to discuss each student’s academic record and the
possibility of remediation, repetition, or dismissal, and that this meeting occurs
before final grades are posted. Accordingly, Rollins argues that the APC decided
to dismiss him before he had a chance to appeal his failing grade in Dental
Page 27 of 46

Anesthesia. The court disagrees that Rollins is likely to prevail on this theory
because Dr. Tilashalski testified that the APC would have reconvened to possibly
amend the dismissal decision had Rollins succeeded on a grade appeal. In fact,
Dr. Tilashalski testified that this sequence of events occurred recently where the
APC subsequently changed its recommendation for a dismissal after a successful
grade appeal.
Ultimately, however, Rollins’ due process arguments as related to his grade
appeal are doomed by his failure to exhaust the “grade appeal” process outlined by
the Academic Guidelines. Rollins properly appealed his final grade to Dr. Louis
and then the department chair, Dr. Waite. (Pl. Exh. 9, at *7-8). However, Rollins
admits that he failed to make a final grade appeal to the Associate Dean as
required by the Academic Guidelines. (Pl. Exh. 1). Rollins tries to overcome this
flaw by contending that he fully appealed his dismissal to the Faculty Council. (D.
Exh. 23). This contention is unavailing because, as delineated by the Guidelines,
an “academic status” appeal differs from a “grade appeal,” and Rollins only
utilized the first two steps of the “grade appeal” process. Moreover, even though
the Associate Dean is a member of the APC and the final arbiter of a “grade
appeal,” the Academic Guidelines allow for different committees to hear these
different appeals. Because Rollins presents no evidence that he specifically
sought the final “grade appeal” step, the court finds little likelihood of success
regarding the purportedly inadequate process for grade appeals. Put differently,
the court cannot find that Defendants provided inadequate process when Rollins
Page 28 of 46

never exhausted the processes offered.
In sum, Defendants provided Rollins with an extensive framework to appeal
and dispute any adverse actions—the very key to the Fourteenth Amendment’s
procedural due process protections. In turn, Rollins establishes insufficient, if
any, evidence that Defendants failed to act clearly and deliberately by denying
remediation of Dental Anesthesia and dismissing Rollins. As the Supreme Court
succinctly put it, “‘[j]udicial interposition in the operation of the public school
system of the Nation raises problems requiring care and restraint . . . . By and
large, public education in our Nation is committed to the control of state and local
authorities.’ We see no reason to intrude on that historic control in this case.”
Horowitz, 435 U.S. at 91 (quoting Epperson v. Arkansas, 393 U.S. 97, 104
(1968)). The need to refrain from intruding is even more prevalent where, as here,
Rollins failed to fully utilize the procedures to challenge his grade and the SOD
afforded him sufficient opportunity to challenge his dismissal.
B.

Substantive Due Process

Similar to procedural due process, “the Supreme Court laid out a very
narrow standard of substantive review over academic decisions.” Haberle, 803
F.2d at 1539 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985)).
The Court in Ewing held that “[w]hen judges are asked to review the substance of
a genuinely academic decision, such as this one, they should show great respect
for the faculty’s professional judgment. Plainly, they may not override it unless it
is such a substantial departure from accepted academic norms as to demonstrate
Page 29 of 46

that the person or committee responsible did not actually exercise professional
judgment.” 474 U.S. at 225. Indeed, the Court quoted Horowitz for the
proposition that “[u]niversity faculties must have the widest range of discretion in
making judgments as to the academic performance of students and their
entitlement to promotion or graduation.” Id. at 225 n.11. Stated simply, the
decision to dismiss the plaintiff in Ewing “rested on an academic judgment that is
not beyond the pale of reasoned academic decision-making when viewed against
the background of [plaintiff’s] entire career at the University of Michigan,
including his singularly low score on the NBME Part I examination.” Id. at 22728. See also id. at 230 (Powell, J., concurring) (“Judicial review of academic
decisions, including those with respect to the admission or dismissal of students, is
rarely appropriate, particularly where orderly administrative procedures are
followed—as in this case.”).
Rollins raises the following alleged violations of his substantive due process
rights: (1) Defendants disregarded the SOD’s mandatory remediation policy, (2)
the APC and Faculty Council arbitrarily and improperly considered Rollins’ predental school academic work and “Clinical Complications” paper, (3) Dr. Louis
and Dr. Waite’s votes for dismissal in the Faculty Council constituted bias, and (4)
Dr. Waite failed to spend adequate time considering Rollins’ grade appeal. See
doc. 1-1, at 9-10. The court will address each allegation specifically.
1.

Alleged Mandatory Remediation Requirement

First, in addition to claiming that Defendants instituted a procedurally
Page 30 of 46

deficient remediation policy, Rollins contends that Defendants acted arbitrarily
and capriciously by failing to adhere to the SOD’s “mandatory remediation”
policy. To support the argument that the SOD utilizes a mandatory remediation
policy, Rollins myopically focuses on the Academic Guidelines’ language: “[a]ny
failing course grade must be remediated.” (P. Exh. 1). However, this contention
is likely to fail because Defendants convincingly demonstrate that Rollins takes
this language out of context. Indeed, based on this court’s review, the Academic
Guidelines’ plain language states unequivocally that the “remediation” decision
rests with the APC. After reviewing each student’s academic performance at the
end of each semester, “the APC will make recommendations to the Associate Dean
regarding promotion, probationary status, repetition, remediation, and dismissal.”
Id. (emphasis added). More specifically, if a student receives an “F” in a course,
“[t]he APC will make recommendations to the Associate Dean as to whether to
allow remediation of the failed course of[sic] if more severe academic action is
justified (repetition or dismissal). If remediation is allowed, the course director
must submit to the student, department chair, and the Office of Academic Affairs a
Deficient Grade Report Form . . . .” Id. (emphasis added). The next section that
addresses “Remediation”—and the only one that Rollins wants this court to read—
is only reasonably read in light of the proceeding paragraphs as applicable “if
remediation is allowed.” As such, “if remediation is allowed,” then “[a]ny failing
course grade must be remediated.” Id. Put differently, as the witnesses testified
ad nauseam, if the APC recommends remediation, a student cannot reject it and
Page 31 of 46

opt to accept the failing grade and move on to other classes.
In rejecting Rollins’ reading of the Guidelines, the court notes that each
SOD faculty member, including Dr. Merrie Ramp, Rollins’ academic advisor,
testified that remediation is at the discretion of the Associate Dean by
recommendation of the APC—not the individual course director. Moreover, Dr.
Tilashalski’s June 7, 2012 email to Rollins specifically explains the “remediation”
policy, and how this policy differs from the “retest” policy available in the basic
science courses. (Ct. Exh. 4, at *3). And, in fact, Rollins’ email to Dr. Louis on
June 7, 2012 reflects an understanding that, if Dr. Louis refused to change his
grade, “[m]y case is then presented to an academic performance committee and
they will determine the appropriate course of action being one of three things: 1.
remediate of the course in some fashion[,] 2. repeat the entire year[,] 3. dismissal.”
(Pl. Exh. 9, at *5). Finally, Rollins’ June 11, 2012 email to Dr. Louis states
“[s]ince we last spoke, I had a misunderstanding of remediation. Apparently, there
is a different policy for your course that does in fact differ from the basic science
courses with regards to a ‘retake’ examination[].” (Pl. Exh. 9, at *6). In other
words, the evidence falls significantly short of supporting Rollins’ contention that
remediation is mandatory at the SOD for all courses.
Alternatively, Rollins contends that, even if remediation is not mandatory,
Defendants arbitrarily disregarded the remediation policy based on Dr. Louis’ June
30, 2012 email stating “I have reviewed the recommendation from the APC and
your appeal. Unfortunately, based on all of the information I am denying your
Page 32 of 46

grade appeal and your request to remediate.” (Pl. Exh. 9, at *10). Basically,
Rollins argues that this email reveals that Dr. Louis, rather than the APC, decided
to reject Rollins’ request for remediation. The court disagrees for several reasons.
First, Rollins received Dr. Louis’ email ten days after the APC met to recommend
dismissal rather than remediation, (Ct. Exh. 5), and nine days after Dr. Tilashalski
informed Rollins of this recommendation and decision, (D. Exh. 3). This evidence
establishes unequivocally that the APC, rather than Dr. Louis, made the decision
to deny remediation. Second, Rollins takes Dr. Louis’ statement out of context
and overlooks that the email is a response to an email where Rollins appeals his
Dental Anesthesia grade and asks Dr. Louis to “please consider my previously
submitted document, which I have attached below, into your decision as noted in
Item #3 of the course syllabus” (the remediation section). (Pl. Exh. 9, at *7); (Pl.
Exh. 4). In a nutshell, Rollins wanted Dr. Louis to allow him to “remediate”
through the unsolicited paper that Rollins submitted after he failed the class. Dr.
Louis’ response reveals simply that he denied the grade appeal, and pursuant to the
APC’s decision to recommend Rollins’ dismissal, also had to deny Rollins’
request to remediate after-the-fact with the nine page “Clinical Complications”
paper. See (Pl. Exh. 9, at *10). As Dr. Louis testified, it would be unethical for
him to change a grade based on additional work a student submits after-the-fact or
simply because the student wants a higher grade. In any event, there is no
indication that, in this June 30, 2012 email, Dr. Louis acted outside the accepted
norms of professional judgment. See Haberle, 803 F.2d at 1539.
Page 33 of 46

2.

Alleged Improper Reliance on Pre-Dental School Academic
Work and Plagiarism Allegation

Next, as a second ground for an alleged substantive due process violation,
Rollins claims that the APC and the Faculty Council improperly considered his
pre-dental school academic performance and the potential plagiarism in his
“Clinical Complications” paper. As it relates to Rollins’ pre-dental school
academic record, Rollins attempted to obtain an oral biology masters degree at
UAB prior to admission into the SOD. In this masters program, Rollins took two
dental school classes, Fundamentals I and II, and received a “C” in each class.
(Ct. Exh. 1). Dr. Tilashalski testified that, while Rollins successfully defended his
masters thesis and had taken enough course hours to obtain his masters degree,
Rollins never received the degree because he failed to obtain the requisite GPA.12
Additionally, upon entry to the SOD, Rollins failed the first two exams in
Fundamentals I, a class he had previously taken—although, Rollins ultimately
received a final “B” grade in both Fundamentals I and II. (Ct. Exh. 1). Rollins
contends that the APC and Faculty Council violated his substantive due process
rights when they considered this information in the decisions to dismiss. (Ct. Exh.

12

Rollins takes issue with this assertion and claims that he did not obtain his masters
degree because of his decision to enroll in the SOD. Rollins may well have obtained this degree
eventually. Nonetheless, Dr. Tilashalski’s contention that Rollins failed to obtain the necessary
GPA for the degree is true. As Dr. Tilashalski testified and as the transcripts show, see (Ct. Exh.
1), Rollins had taken the required hours to qualify for the degree but his GPA fell below the
requisite level to graduate with a degree. Rollins’ contention that he would have raised his GPA
eventually but for his decision to enroll at the SOD does not negate Dr. Tilashalski’s statement
that Rollins failed to receive a degree because of the GPA he earned.
Page 34 of 46

5, at *2); (Ct. Exh. 6, at *2). This contention is also unavailing because the
Academic Guidelines provide that “[i]t should be noted that the APC reviews
materials, in addition to grades, when determining promotion recommendations
for students,” and “[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 period of time.” (Pl. Exh. 1). Rollins’
pre-dental school academic performance, especially that of related subject matters,
certainly provides relevant information on the ability to maintain the required
standards of a SOD student. The court passes no judgment on Rollins’ academic
capacity, but, rather, finds that the Defendants’ use of this information is most
likely still within the realm of reasonable “professional judgment.” Haberle, 803
F.2d at 1539.
As it relates to the “Clinical Complications” paper, see (D. Exh. 12, 26),
Rollins submitted to Dr. Louis and eventually read and analyzed for plagiarism by
Dr. Tilashalski, the court again finds insufficient evidence of impropriety. Taken
in the light most favorable to Rollins, he submitted this paper to Dr. Louis as an
unsolicited attempt to “remediate” Dental Anesthesia, or, put differently, to
demonstrate adequate competence in the subject matter to receive a passing grade.
See (Pl. Exh. 9, at *6-8). As discussed previously, the Faculty Council reviews
appeals from the APC, and, for dismissals, considers whether “sufficient evidence
exists to indicate that a student will not be able to correct past academic
deficiencies within a reasonable period of time.” (Pl. Exh. 1). The Faculty
Page 35 of 46

Council’s minutes establish that Dr. Tilashalski presented this paper to the Council
along with a “turnitin.com” report.13 (Ct. Exh. 6, at *1). An academic paper
submitted by the dismissed student is certainly relevant to ascertain the ability to
correct certain deficiencies, and Dr. Tilashalski’s use of “turnitin.com” simply
offers additional evidence regarding possible plagiarism and thus the “academic
rigor” of the paper. Again, courts must “show great respect for the faculty’s
professional judgment,” and the Faculty Council’s consideration of Rollins’ paper,
with the turnitin.com report, is highly unlikely to represent a “substantial departure
from accepted academic norms.” Haberle, 803 F.2d at 1539.
3.

Alleged Bias of Drs. Louis and Waite

As a third purported violation of substantive due process, Rollins argues
that Dr. Louis and Dr. Waite’s Faculty Council votes for dismissal were biased
due to previous judgments made about him. Stated differently, Rollins contends
that these two individuals “had clear bias and w[ere] not [] objective committee
member[s], given that [they] had already pre-judged the merits of the appeal.”
Doc. 1-1, at 10.14 The court disagrees because these two professors “pre-judged”
(if anything) Rollins’ grade appeal, not the academic status decision of dismissal.
The Academic Guidelines provide two separate processes for academic status

13

This website produces an “Originality Report” that matches the submitted document
with other published sources. See (D. Exh. 13).
14

The Complaint contends that Dr. Waite improperly voted on the Academic
Performance Committee, see doc. 1-1, at 10; however, the evidence reveals that Dr. Waite served
on the Faculty Council, (Ct. Exh. 6), not the APC, (Ct. Exh. 5).
Page 36 of 46

appeals and grade appeals. (Pl. Exh. 1). After the Associate Dean and APC
decided to dismiss Rollins, he appealed this decision to the Faculty Council which
included committee members Drs. Louis and Waite. (D. Exh. 23). Conversely,
Rollins appealed his Dental Anesthesia grade first to his course director, Dr.
Louis, and subsequently to the department chair, Dr. Waite—which both
professors denied. (Pl. Exh. 9, at *10-11). Thus, the evidence offers no support
that Dr. Louis or Dr. Waite had a preconceived bias as it relates to Rollins’
dismissal, as opposed to the grade appeal.15
Furthermore, the Eleventh Circuit instructs that “[a]n impartial decisionmaker is an essential guarantee of due process.” Nash v. Auburn Univ., 812 F.2d
655, 665 (11th Cir. 1987). However, in “Duke we refused ‘to establish a per se
rule that would disqualify administrative hearing bodies . . . solely for the reason
that . . . some of [the members] participated in the initial investigation of the
incident and initiation of the cause under consideration.’” Id. at 666 (quoting Duke
v. N. Tex. State Univ., 469 F.2d 829, 834 (5th Cir. 1972)). “‘The record must
support actual partiality of the body or its individual members.’” Id. (quoting
Megill v. Bd. of Regents, 541 F.2d 1073, 1079 (5th Cir. 1976)). Here, Rollins
failed to show any alleged partiality by the Faculty Council. In fact, Rollins fails
to present any evidence that, assuming Dr. Louis and Dr. Waite had recused
15

A better case for bias would exist if Rollins actually took the final step of a grade
appeal, and the Associate Dean’s ad hoc committee consisted of Dr. Louis and/or Dr. Waite, see
(Pl. Exh. 1); however, as stated previously, Rollins failed to take this final step pursuant to the
Academic Guidelines.
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themselves from the Faculty Council vote, the Faculty Council would have
reached a different decision on the appeal of his dismissal. The evidence here
shows that the Faculty Council voted by secret ballot to uphold Rollins’ dismissal
“seven votes in favor and none opposed.” (Ct. Exh. 6, at *3). Thus, even
eliminating Dr. Louis and Dr. Waite still results in a unanimous vote against
Rollins.
4.

Alleged Failure to Properly Consider Grade Appeal

Fourth and finally, Rollins alleges that Dr. Waite failed to adequately
consider his grade appeal. Although Dr. Louis testified that he discussed Rollins’
Dental Anesthesia final grade with Dr. Waite before June 30, 2012, at 5:05 P.M.
on June 30, 2012, Dr. Louis denied Rollins’ grade appeal, (Pl. Exh. 9, at *10), and
approximately one hour later, at 6:13 P.M. on June 30, 2012, Dr. Waite found no
“grounds to reverse” Dr. Louis’ decision, id. at *11. Basically, despite appealing
his grade to Dr. Waite on June 27, 2012, id. at *8, i.e. three days before Dr. Waite
answered his appeal, Rollins focuses on the one hour gap between Drs. Louis and
Waite’s response to maintain that Dr. Waite only considered the appeal for an
hour. This contention is speculative at best and, as such, carries no evidentiary
weight. Moreover, given the narrow standard to review substantive academic
decisions, see Ewing, 474 U.S. at 225, the court finds no indication of arbitrary or
capricious conduct by Dr. Waite. In other words, Rollins failed to demonstrate to
the court why an hour is insufficient to review a final grade for the objective,
multiple choice, and computer graded examinations given in Dental Anesthesia.
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To conclude, Rollins’ substantive due process arguments are precisely the
type of allegations that led the Supreme Court to hold: “If a ‘federal court is not
the appropriate forum in which to review the multitude of personnel decisions that
are made daily by public agencies,’ Bishop v. Wood, 426 U.S. 341, 349, 96 S. Ct.
2074, 2079, 48 L. Ed.2d 684 (1976), far less is it suited to evaluate the substance
of the multitude of academic decisions that are made daily by faculty members of
public educational institutions—decisions that require ‘an expert evaluation of
cumulative information and [are] not readily adapted to the procedural tools of
judicial or administrative decisionmaking.’ Board of Curators, Univ. of Mo. v.
Horowitz, 435 U.S., at 89-90, 98 S. Ct., at 954-955.” Ewing, 474 U.S. at 226.
Thus, by producing only sparse, if any, evidence of arbitrary or capricious
conduct, Rollins failed to satisfy the preliminary injunction burden for a purported
violation of substantive due process. See All Care Nursing, 887 F.2d at 1537.
C.

Equal Protection and Title IX

“[T]he Equal Protection Clause requires government entities to treat
similarly situated people alike.” Campbell v. Rainbow City, Ala., 434 F.3d 1306,
1313 (11th Cir. 2006). To sufficiently state a claim, the plaintiff “must allege that
‘through state action, similarly situated people have been treated disparately,’
Thigpen v. Bibb County Sheriff’s Dep’t., 223 F.3d 1231, 1237 (11th Cir. 2000),
and put forth evidence that [defendant’s] actions were motivated by” gender.
Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004). See also 42
U.S.C. § 1983.
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Other circuits generally assess “Title IX discrimination claims under the
same legal analysis as Title VII claims.” Gossett v. Oklahoma ex rel. Bd. of
Regents for Langston Univ., 245 F.3d 1172 (10th Cir. 2001); Wolfe v. Fayetteville,
Ark. Sch. Dist., 648 F.3d 860, 865 n.4 (8th Cir. 2011); Torres v. Pisano, 116 F.3d
625, 630 n.3 (2d Cir. 1997) (“We have held that Title VII principles apply in
interpreting Title IX.”); Preston v. Virginia ex rel. New River Cmty. College, 31
F.3d 203, 206 (4th Cir. 1994) (“We agree that Title VII, and the judicial
interpretations of it, provide a persuasive body of standards to which we may look
in shaping the contours of a private right of action under Title IX.”). However, in
holding that a private plaintiff may not recover compensatory damages pursuant to
Title IX, the Eleventh Circuit stated:
[Plaintiff] has invited this court to apply a Title VII analysis to this
case. Titles VI and IX, as well as Title VII, all have an
antidiscrimination purpose. But while Titles VI and IX speak in
terms of conditional grants which may be terminated if discrimination
occurs under any federally funded program, Title VII (which we find
unnecessary to extensively analyze for these purposes) speaks in
terms of outright prohibitions, making discrimination in an
employment setting an unlawful employment practice. See, e.g. 42
U.S.C. § 2000e-2. We do not believe applying Title VII to Title IX
would result in the kind of orderly analysis so necessary in this
confusing area of the law. For this reason, we decline to do so.
Franklin v. Gwinnett Cnty. Pub. Sch., 911 F.2d 617, 622 (11th Cir. 1990),
reversed on other grounds by Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60
(1992). In reversing the Eleventh Circuit as it relates to the available remedies
under Title IX—thereby finding compensatory damages recoverable pursuant to
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Title IX—the Supreme Court expressly declined to consider the use of Title VII as
an analogous statute. See Franklin, 503 U.S. at 65 n.4. Accordingly, this court is
still bound by the Eleventh Circuit’s instruction that, when analyzing Title IX,
courts should focus on the structure of Title VI, 42 U.S.C. § 2000d, rather than
Title VII. Franklin, 911 F.2d at 622. Nevertheless, as it relates to liability under
Title VI, and for that matter Title IX as well,16 the Eleventh Circuit established that
“‘discrimination that violates the Equal Protection Clause of the Fourteenth
Amendment committed by an institution that accepts federal funds also constitutes
a violation of Title VI.’” Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325,
1329 n.1 (11th Cir. 2005) (quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23
(2003)). Therefore, to ascertain the “likelihood of success on the merits,” the
court utilizes the same analysis for Rollins’ Equal Protection and Title IX
claims—(1) whether Defendants treated similarly situated people disparately and
(2) whether gender animus motivated Defendants’ disparate treatment.
Rollins claims that Defendants treated Student 1 more favorably than him in
violation of the Equal Protection Clause and Title IX. See doc. 1-1, at 10-13. To
support this discrimination allegation, Rollins contends that both he and Student 1
failed a course, but Defendants allowed Student 1 to remediate her failed course
16

Title IX “was modeled after Title VI of the Civil Rights Act of 1964, which is parallel
to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all
programs receiving federal funds, not only in education programs. The two statutes operate in
the same manner, conditioning an offer of federal funding on a promise by the recipient not to
discriminate . . . .” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (internal
citations omitted).
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and to repeat her first year of dental school. Id.; see also doc. 4, at 12-18.
However, as shown by Defendants, this simplistic contention distorts the
similarities and differences between Student 1 and Rollins. Student 1 earned a
66% final failing average in Cardiovascular & Renal Systems—a basic science
course. (Ct. Exh. 5). Accordingly, pursuant to the course syllabus and the
Academic Guidelines, (Pl. Exh. 11), Student 1 took a “competency” exam and
scored a failing 63%. (Ct. Exh. 5). Therefore, Student 1 received a failing overall
grade in Cardiovascular & Renal Systems. (Ct. Exh. 2). While Rollins contends
that Defendants treated him less favorably than Student 1 by denying him
remediation in Dental Anesthesia, Rollins ignores that Defendants afforded him
the same opportunities as Student 1 in a basic science class. Specifically, Rollins
earned a 53% final average in Gross Anatomy, (Ct. Exh. 5), and, although not
technically available to Rollins in the course syllabus since Rollins scored below
the 60% cut-off, (D. Exh. 9), the course director nonetheless allowed Rollins to
take the “competency” exam, which he scored an 80%, and therefore, received a
“C” overall grade in Gross Anatomy. (Ct. Exh. 1); (Ct. Exh. 5). Thus, as it relates
to failing basic science courses and the ability to take a “competency” exam, there
is no disparate treatment between Rollins and Student 1—in fact, Defendants
arguably treated Rollins more favorably by allowing his “competency” exam in
Gross Anatomy.
In other words, while Rollins challenges purported disparate treatment as it
relates to remediation and/or competency exams, the actual disparate treatment is
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Defendants’ decision to allow Student 1 to repeat her first year because of her
failing grade, whereas Defendants chose to dismiss Rollins. To explain the
decision, Dr. Tilashalski testified that, when considering the global academic
picture for each individual student, the APC found that Student 1, unlike Rollins,
retained the potential to succeed at the SOD if she repeated her first year.17 Even
though Student 1 ranked lower in the class, maintained a lower overall GPA, and
received more “C” final grades than Rollins, see (Ct. Exh. 1, 2, 5), Dr. Tilashalski
provided that the APC also found that Rollins failed sixteen individual exams in
his first year at the SOD, including all eight exams in Gross Anatomy and the first
two exams of Fundamentals I, a class he had previously taken while studying for a
masters degree he failed to obtain in oral biology based on his GPA. See (Ct. Exh.
5). Conversely, according to Dr. Tilashalski, Student 1 failed approximately six
exams in her first year. In this regard, the APC considered whether a student
showed deficiencies in a wide range of subject matters or merely a few isolated
subjects. Furthermore, the APC and the Faculty Council heard statements about
the students’ purported extenuating circumstances. Student 1 provided that she
took her mother to the emergency room the night before the third exam in
Cardiovascular & Renal systems, and Rollins provided only that he became
engaged during the spring semester.

17

Dr. Tilashalski also testified that he voted to dismiss Student 1 and Rollins, but
accepted—as Associate Dean—the APC’s majority vote to require repetition for Student 1 and
dismissal for Rollins.
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Any discrimination case that relies solely on a “comparator” analysis for
circumstantial evidence of discrimination18 requires that the comparators are
similarly situated in all relevant respects. Cf. Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1091 (11th Cir. 2004) (“The comparator must be nearly identical to the
plaintiff to prevent courts from second-guessing a reasonable decision by the
employer.”). Based on the evidence currently before the court, the court finds
success on the discrimination claim unlikely given the differences between Rollins
and Student 1. Namely, the “relevant respects” for an academic dismissal concern
the capacity to succeed at the academic institution. The evidence presented
provides reasonable extenuating circumstances to excuse Student 1’s poor
performance and more overall failed exams by Rollins, thereby preventing an
acceptable comparator analysis. See Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999) (“We require that the quantity and quality of comparator’s
misconduct be nearly identical to prevent courts from second-guessing employers’
reasonable decisions and confusing apples with oranges.”).
Furthermore, even if the court assumes Student 1 is a satisfactory
comparator, Defendants offer an adequate, gender-neutral justification for Rollins’
dismissal—the APC and Dr. Tilashalski decided that Rollins gave dental school
his best possible performance throughout his first year and still fell short of the
academic standards necessary to continue in the SOD. Given Rollins’ sixteen
18

The preliminary injunction hearing revealed no direct evidence of discrimination. Cf.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004).
Page 44 of 46

failing exam grades, including all eight in Gross Anatomy, combined with Student
1’s extenuating circumstances, the court, without more, cannot make the
reasonable inference that the APC and Dr. Tilashalski’s justification for their
decision is mere pretext to mask some gender-based animus. Cf. Brown v. Ala.
Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010).
Finally, any allegedly gender-based discriminatory treatment between
Rollins and Student 1 is substantially minimized by Defendants’ decision to
dismiss Student 2—a female. See (Ct. Exh. 5, 6). Student 2 ranked last in the first
year dental school class, but still only failed one course over the year—
Cardiovascular & Renal. (Ct. Exh. 3). Based on her overall performance, the
APC voted for dismissal and the Faculty Council affirmed the decision. (Ct. Exh.
5, 6). In other words, Defendants treated a female the same as Rollins. See
Jackson v. Mo. Pac. R. Co., 803 F.2d 401, 406 (8th Cir. 1986). The existence of a
similarly treated comparator in the purportedly favored-class severely diminishes
Rollins’ likelihood of success on the merits of the discrimination claim.
In short, Rollins offers insufficient evidence of any female that is similar in
all relevant respects, and, even if Rollins provides a satisfactory comparator, there
is no evidence that Defendants treated Rollins less favorably because of his gender
or that Defendants’ reasons for the difference in treatment are pretext for gender
animus.
IV.

Conclusion

As Rollins fails to satisfy the first requirement for a preliminary
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injunction—substantial likelihood of success on the merits, see All Care Nursing,
887 F.2d at 1537—the court finds no need to address the remaining three
requirements. The court’s decision here relates solely to the denial of a
preliminary injunction based on the evidence presented at this juncture. While the
court finds insufficient evidence to grant the extraordinary remedy of a
preliminary injunction forcing Defendants to enroll Rollins in the SOD against
their will, this decision has no impact or significance on the actual merits of this
litigation. Rollins is still afforded every right and remedy available to civil
litigants including, but not limited to, discovery, a potential jury-trial, and appeal.
The court will enter a separate order in accordance with this Memorandum
Opinion.

Done the 30th day of July, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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