Feng v. University of Delaware

Filing 55

MEMORANDUM OPINION. Signed by Judge Eduardo C. Robreno on 4/9/2020. (lak)

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 1 of 6 PageID #: 917

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

XU FENG
v.
UNIVERSITY OF DELAWARE

:
:
:
:
:

CIVIL ACTION
No. 16-664

M E M O R A N D U M

EDUARDO C. ROBRENO, J.

April 9, 2020

Presently before the Court is Defendant University of
Delaware’s renewed motion for summary judgment. For the reasons
that follow, the Court will grant the motion.
1.

Plaintiff Xu Feng, a Chinese citizen living in China,

enrolled in a graduate program (the “Program”) at the University
of Delaware. After three semesters (from summer 2014 through
spring 2015), during which Plaintiff did not maintain the
minimum required 2.0 GPA, Defendant expelled him for failing to
meet its academic requirements. 1 Plaintiff claims that, by
subjecting him to a higher credit hour requirement than students
from the United States and terminating his enrollment when he
could not keep up in his classes, Defendant discriminated

1

After Plaintiff was expelled, his professors gave him
a second chance and told him they would consider reinstating him
if he met certain requirements including completing assignments
from the previous semester. Plaintiff failed to timely meet
these requirements and was not reinstated.

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 2 of 6 PageID #: 918

against him based on his national origin in violation of 42
U.S.C. § 2000d.
2.

Students could attend the Program in person on the

campus or through distance learning. Plaintiff elected to attend
in person. To do so, he was required to obtain an F-1 student
visa. To maintain the visa, Plaintiff was required by federal
law to enroll in a “full course of study.” 8 U.S.C. §
1101(a)(15)(f)(i). Defendant was required to define “full course
of study.” 8 C.F.R. § 214.2(f)(6)(i)(A). Over thirty years ago,
and like many other schools around the country, Defendant
defined “full course of study” as full-time enrollment, which is
at least nine credit hours for a graduate program. 2
3.

Plaintiff asserts that requiring foreign students to

take nine credits to attend classes on campus is discriminatory
because students from the United States could attend the Program
in person while being enrolled part time (because they did not
require an F-1 visa).
4.

Summary judgment should be granted when there is no

genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
There is a genuine factual dispute when a reasonable jury could

2

See Maintaining Your Immigration Status, Univ. of

Del.,
http://www1.udel.edu/oiss/students/maintaining_your_status.html
(last visited Apr. 9, 2020).
2

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 3 of 6 PageID #: 919

come to opposing conclusions. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248–49 (1986). A dispute of fact is material when
it “might affect the outcome of the suit under the governing
law.” Id. at 248. A movant is entitled to summary judgment if
the non-movant has failed to sufficiently show an essential
element of its case. Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). The Court views all facts in the light most
favorable to the nonmoving party. See Pignataro v. Port Auth.,
593 F.3d 265, 268 (3d Cir. 2010).
5.

Plaintiff first argues that the nine-credit

requirement for F-1 visa students is facially discriminatory and
Defendant’s application of it to him is evidence of direct
discrimination. He argues that the requirement treats all
international students differently than domestic students who
need not take nine credits to attend classes on campus. The
Court rejects these arguments. In order to maintain an F-1
student visa, the foreign student is federally mandated to
enroll in a full course of study. 8 U.S.C. § 1101(a)(15)(f)(i).
Federal law also requires universities to define that term, 8
C.F.R. § 214.2(f)(6)(i)(A), which Defendant did long ago, as
full-time enrollment, or nine credit hours for a graduate
program. The definition of full-time enrollment does not change
depending on the national origin of the student--it is equally
applicable to all students and affects many domestic students
3

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 4 of 6 PageID #: 920

including those utilizing financial aid programs and
fellowships. 3 The fact that the federal government requires a
full course of study in order to maintain an F-1 visa is not a
policy into which Defendant has had any input. It is the federal
government, not Defendant, who sets the requirements for such
entry. Thus, there is simply no direct evidence of an intent to
discriminate by Defendant. See Pryor v. Nat’l Collegiate
Athletic Ass'n, 288 F.3d 548, 562 (3d Cir. 2002) (“To prove
intentional discrimination by a facially neutral policy, a
plaintiff must show that the relevant decisionmaker . . .
adopted the policy at issue because of . . . its adverse effects
upon an identifiable group.” (internal quotation marks omitted)
(citing Pers. Admn’r v. Feeney, 442 U.S. 256, 279 (1979)). The
Court notes that Plaintiff could have completed the Program
part-time via distance learning from China, but he apparently
wanted the opportunity to be in the United States.
6.

Plaintiff also argues that, even without evidence of

direct discrimination, he can meet the McDonnell Douglas burden
shifting test with indirect evidence of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

3

Plaintiff argues that the evidence shows that
Defendant viewed the Program as a full course of study
regardless of its official definition of full-time enrollment.
Even viewed in the light most favorable to Plaintiff, the
deposition transcripts and documents he cites do not support
this contention.
4

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 5 of 6 PageID #: 921

In order to succeed in this argument, Plaintiff must first make
out a prima facie case and show that: (1) he is a member of a
protected class; (2) he was qualified to continue in pursuit of
his education; (3) he suffered an adverse action; and (4) such
action occurred under circumstances giving rise to an inference
of discrimination. Blunt v. Lower Merion Sch. Dist., 826 F.
Supp. 2d 749, 758 (E.D. Pa. 2011) (applying the McDonnell
Douglas factors to the education setting) (citing Sarullo v.
U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)), aff’d, 767
F.3d 247 (3d Cir. 2014).
7.

It is undisputed that at all relevant times Defendant

had a policy to expel students who did not maintain a 2.0 GPA.
Plaintiff did not maintain a 2.0 GPA. Therefore, he was not
qualified to continue in the Program. Plaintiff argues that the
discrimination began when Defendant imposed the nine-credit
requirement on him. However, as discussed, this action was taken
pursuant to federal law and cannot be imputed to Defendant. The
relevant adverse action is Plaintiff’s expulsion, not
Defendant’s enforcement of the credit requirement. Because the
federal government set the requirements for the F-1 visa and
Defendant has uniformly applied its definition of full-time
enrollment for over thirty years, Plaintiff also cannot show
that the adverse action occurred under circumstances giving rise

5

Case 1:16-cv-00664-ER Document 55 Filed 05/05/20 Page 6 of 6 PageID #: 922

to an inference of discrimination. Therefore, Plaintiff fails to
make out a prima facie case.
8.

Even if Plaintiff could make out a prima facie case,

he must show that Defendant’s stated facially non-discriminatory
reason for expelling him was a pretext for discrimination.
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This he
cannot do. Defendant expelled Plaintiff for failing to maintain
a 2.0 GPA and did not reinstate him because he failed to timely
meet the requirements his professors set for him. Again,
Plaintiff asserts that subjecting him to the nine-credit
requirement in order to study on campus, merely because he was a
foreign student, shows pretext. Again, other than to define
full-time enrollment, which it was required to do, Defendant did
not set the requirements for an F-1 visa. Plaintiff has provided
no evidence of pretext such that a fact finder could reasonably
either: (1) disbelieve Defendant’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause of
its action. Id. at 764.
9.

For these reasons, the Court will grant the

University’s motion for summary judgment.
An appropriate order follows.

6