McCulley v. University of Kansas School of Medicine, The et al
Filing
34
MEMORANDUM AND ORDER granting in part and denying in part 11 defendants' Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge J. Thomas Marten on 4/10/2013. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EMILY MCCULLEY,
Plaintiff,
vs.
Case No. 12-2587-JTM
THE UNIVERSITY OF KANSAS SCHOOL OF
MEDICINE, and STEVEN STITES, M.D.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Emily McCulley has Spinal Muscular Atrophy, which limits her muscular
development. She requires a wheel chair, but has the use of her arms and hands, although
with limited strength. McCulley alleges that she was denied admission to the University
of Kansas School of Medicine after the School learned of her disability and failed to offer
her reasonable accommodation from various motor functional standards the School
requires. She then brought the present action against the School and its Acting Dean, Dr.
Steven Stites, alleging violations of Title II of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101, as well as the Rehabilitation Act, 29 U.S.C. § 701.
The matter is currently before the court on the defendants’ Motion to Dismiss,
arguing that the ADA claim is subject to Eleventh Amendment immunity, and that the
claim against Dr. Stites should be dismissed as superfluous to the claim against the real
party in interest, KU Medical School.
The Eleventh Amendment grants states immunity from suits brought by private
citizens in federal court. Congress may abrogate that immunity where its intent to do so
is “unequivocally expressed” and it acts under a valid grant of constitutional authority.
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000).
The issue here is whether Title II of the ADA is a valid exercise of Congress's
authority under Section 5 of the Fourteenth Amendment, which authorizes Congress to
remedy or prevent unconstitutional discrimination. Tennessee v. Lane, 541 U.S. 509, 124 S.Ct.
1978, 1986, 158 L.Ed.2d (2004) . In City of Boerne v. Flores, 521 U.S. 507, 519-20, 117 S.Ct. 2157,
2164, 138 L.Ed.2d 624 (1997), the Supreme Court held that under Section 5 legislation is
valid if it exhibits “a congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end.” See also Nevada Dept. of Human Resources
v. Hibbs, 538 U.S. 721, 728, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). The plaintiff does not
contest the defendant’s argument that it is a state university, and is otherwise entitled to
Eleventh Amendment protection in the absence of a valid § 5 waiver.
In applying this standard, the court looks to (1) the nature of the constitutional right
or rights that Congress sought to enforce when it enacted the ADA, (2) whether there was
a history of unconstitutional discrimination to support Congress's determination that
prophylactic legislation was necessary; and (3) whether Title II is an appropriate response
to this history and pattern of unequal treatment. Board of Trustees v. Garret, 531 U.S. 356,
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365-70, 121 S.Ct. 955, 963-66, 148 L.Ed.2d 866 (2001); Boerne, 521 U.S. at 519, 117 S.Ct. at
2164.
In considering whether Congress validly waived Eleventh Amendment immunity
under Title II of the ADA, the court does not look at the ADA “with its wide variety of
applications, as an undifferentiated whole.” Lane, 541 U.S. at 513-14. It looks at the
particular form of alleged discrimination on a case by case basis.
Applying the Boerne standards in the present action, the court notes that McCulley
concedes in her Response that access to public higher education is not a fundamental
constitutional right, and that her claim thus does not involve a clear and unambiguous
violation of the Fourteenth Amendment. She does argue, however, that her ADA claim
presents “an Equal Protection Clause issue.” (Resp. at 5).
Court have generally rejected claims for accommodation resting on Equal Protection
Clause grounds. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35-37,
93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (rejecting claim that education is a fundamental right,
thereby triggering strict scrutiny review under the Equal Protection Clause); Erickson v. Bd.
of Governors, 207 F.3d 945, 951 (7th Cir. 2000) (“no one believes that the Equal Protection
Clause establishes the disparate-impact and mandatory accommodation rules found in the
ADA”). Here, while McCulley contends that the defendants violated Title II by failing to
adopt reasonable accommodations for motor-technical standards, the underlying standards
appear to be rationally-related principles focused on the ability of physicians to meet the
medical needs of their patients.
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With respect to the second Boerne factor, McCulley cites decisions from other circuits
as having recognized the existence of a history of discrimination in public education,
noting, for example, the observation of the Eleventh Circuit in Association for Disabled
Americans v. Fla. Int'l Univ., 405 F.3d 954, 959 (11th Cir. 2005) that education "affects
disabled persons' future ability to exercise and participate in the most basic rights and
responsibilities of citizenship, such as voting and participation in public programs and
services."1 However, that court was addressing a claim for accommodation in
undergraduate education, and the court, in turn, rested its conclusion on Brown v. Board of
Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), which of course involved
systemic race-based discrimination in primary and secondary schooling.
The present action involves a claim of discrimination at the post-graduate level,
allegedly occurring in the defendant medical school, a far narrower field of education, and
not one which is fundamental to other civic activities such as voting. Plaintiff has presented
no evidence that Congress documented a history of disability discrimination in higher
education in general, or in post-graduate education in particular.
Finally, in assessing the congruence and proportionality of Title II’s regulation of
state conduct, the court notes the prior conclusions of the Tenth Circuit in Thompson v.
Colorado, 258 F.3d 1241 (2001) and Guttman v. Khalsa, 669 F.3d 1101 (2012). In Thompson, the
court concluded that Title II was not a valid abrogation of Eleventh Amendment immunity:
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See also Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524 (3d Cir. 2007); Toledo v. Sanchez,
454 F.3d 24 (1st Cir. 2006); Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474 (4th
Cir. 2005).
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This court cannot conclude that Congress “identified a history and pattern”
of unconstitutional discrimination by the states against the disabled. Nor can
this court find in the caselaw “extensive litigation and discussion of the
constitutional violations.” Without this foundation, Title II cannot be
considered preventive or remedial legislation that is congruent and
proportional to any constitutional violation. Without numerous documented
occurrences of unconstitutional state discrimination against the disabled,
Title II’s accommodation requirement appears to be an attempt to prescribe
a new federal standard for the treatment of the disabled rather than an
attempt to combat unconstitutional discrimination.
258 F.3d at 1255 (internal citations omitted).
Of course, after Thompson, the Supreme Court found valid Title II waiver in two
cases, Lane, 541 U.S. at 509 and United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163
L.Ed.2d 650 (2006). But these cases support a narrow determination of waiver, based on the
circumstances of each case. In Lane, the determination of waiver rested on the infringement
of the right of access to the courts, a fundamental constitutional right. In Georgia, the court
found Title II waiver in a case brought by paraplegic prisoner who had demonstrated an
actual violation of the Fourteenth Amendment.
In Guttman v. Khalsa, 669 F.3d 1101 (2012), the Tenth Circuit held there was no valid
waiver in a case where the state revoked the medical license of disabled doctor. The court
reasoned that the right to practice a chosen profession is not a fundamental right (such as
the right of access to courts in Lane), and that Congress had not identified a pattern of
discrimination in professional licensing.
Ultimately, we are presented with a right that is not fundamental, very little
evidence of a widespread pattern of irrational state discrimination in
professional licensing, and a wide-reaching statute that inhibits a state’s
ability to safely and efficiently make professional licensing decisions. Title II
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prohibits a significant range of state action in this realm that would easily
survive rational basis review. Accordingly, in this instance, Title II is “so out
of proportion to a supposed remedial or preventive objective that it cannot
be understood as responsive to, or designed to prevent, unconstitutional
behavior.”
669 F.3d at 1125 (quoting City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157.
The court here reaches a similar result. The alleged discrimination at issue here—the
motor skill standards for attendance of a post-graduate medical school—is closely
analogous to the state’s regulation of medical licensing in Guttman. There has been no
showing of any Congressional findings of historical discrimination in medical schools, and
the underlying motor skill standards have not been shown to be irrational. The court
therefore concludes that Title II has not been shown to be proportional, congruent, or
responsive to historical unconstitutional behavior, and grants the defendant’s motion to
dismiss the ADA claim.
As noted earlier, the defendants also seek dismissal of Dr. Stites as a defendant, on
the grounds that the real party in interest in the action is the School of Medicine. McCulley
responds that the series of New York cases cited by the defendants, such as Emmons v. City
Univ. of N.Y., 715 F.Supp.2d 394, 408 (E.D.N.Y.2010), arose outside the Tenth Circuit.
Noting the exception to Eleventh Amendment immunity for claims for injunctive relief in
Ex parte Young, 209 U.S. 123 (1908), she stresses that her action against Dr. Stites is proper
given that Count II her Complaint also advances a request for “an order enjoining
defendant from engaging in discriminatory conduct.” (Resp. at 11).
The court notes that plaintiff only selectively quotes from the Complaint, which
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reads in full as to the Count II Rehabilitation Act claim:
WHEREFORE, plaintiff prays for judgment against defendant School of Medicine
in the form of: (1) an order enjoining defendant from engaging in
discriminatory conduct, and requiring the defendant to admit plaintiff to the
School of Medicine; and (b) an award of compensatory damages in excess of
$100,000.00 for humiliation, anger, mental anguish, emotional distress, and
loss of enjoyment of life, as well as attorneys’ fees, litigation expenses, and
such other and further relief as this Court deems just, equitable and proper.
(Complaint at 8) (emphasis added). By its explicit terms, the Complaint only asks for
judgment on the Rehabilitation Act against the KU School of Medicine. The only claim for
judgment against Dr. Stites is in Count I.
The court grants the motion to dismiss Dr. Stites to the extent that McCulley would
purport to advance any Rehabilitation Act claim against him. However, the court denies
the motion to dismiss Dr. Stites as to Count 1. The court’s determination that the KU School
of Medicine is entitled to dismissal of any ADA claim against it is not dispositive as to any
Ex Parte Young claim for prospective relief against Dr. Stites. See Guttman, 669 F.3d at 1129
(determination that Title II was not valid abrogation of Eleventh Amendment immunity
was not dispositive of Ex Parte Young claim). “[N]either a state official's absolute immunity
nor a state's sovereign immunity bars a plaintiff from bringing an Ex parte Young claim for
a violation of Title II of the ADA.” Id. at 1127. Such an ADA claim “may proceed even if the
state defendants are protected by sovereign immunity.” Id. (citing Garret, 531 U.S. at 374
n. 9).
In their Reply, the defendants stress that Title II only contemplates actions against
“any state ... government” or “any department, agency ... other instrumentality of the
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State.”42 U.S.C. § 12131(1). Since, they argue, “Dr. Stites is in no way a public entity,” he
cannot be sued under the ADA. (Reply at 10). But this mistakes the statute, which generally
proscribes discriminatory acts by public entities, with the remedy. But courts have
recognized that the “public entity” language in § 12131 does not limit the relief available
so as to preclude official capacity suits. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188-89
n. 10 (9th Cir. 2003).
Defendants also rely on Helmick v. Utah Valley State College, 394 Fed.Appx. 465, 466
(10th Cir. 2010), an Age Discrimination in Employment Act (ADEA) case, as authority for
the dismissal of all official capacity claims against Dr. Stites. The court in that case held that
the district court, which found it had no subject matter jurisdiction over defendants under
the Eleventh Amendment, was required to dismiss such claims rather than (as it did)
remanding them to a state administrative agency. But the plaintiff in Helmick apparently
advanced no claim for prospective relief under Ex Parte Young.
Application of the doctrine has strong precedential support in the Tenth Circuit. In
Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 866 (10th Cir. 2003), the Tenth Circuit rejected
the contention that Ex Parte Young is inapplicable to actions under Title II of the ADA:
We agree with the Fair that Title II of the ADA was not a valid
abrogation of the States' Eleventh Amendment immunity. See Thompson v.
Colorado, 278 F.3d 1020, 1034 (10th Cir.2001). The Fair also asserts that the Ex
parte Young exception does not apply. We disagree.
348 F.3d at 850 (citations omitted).2 Because the plaintiffs in Chaffin had presented a non2
Following precedent, Chaffin held that application of Young required a four part test,
the final part of which was whether the litigation would implicate “special sovereignty
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frivolous ADA claim for prospective relief against defendants in their official capacities,
it was “an easy conclusion” that Ex Parte Young was applicable. Id.
Similarly, the cases cited by defendants in their initial brief, such as Emmons, 715
F.Supp.2d at 408, Maus v. Wappingers Cent. School Dist., 688 F.Supp.2d 282, 302 n. 10
(S.D.N.Y. 2010), and A.M. ex rel. J.M. v. N.Y.C. Dept. Educ., 840 F.Supp.2d 660 (E.D.N.Y.
20012) involved no claim under Ex Parte Young. Indeed, in Emmons, the court dismissed the
official capacity claim only provisionally, noting because "[o]n the face of the complaint,
the Young exception is not supportable, ... all claims purportedly brought pursuant to that
doctrine are dismissed with leave to replead." 715 F.Supp.2d at 408.
More importantly, these New York cases have their roots in earlier decisions which
have been expressly disavowed by the Second Circuit.
We ... cannot embrace the state defendant's statutory claim that an individual
sued in his or her official capacity under the doctrine of Ex parte Young is not
a “public entity” subject to liability under the ADA, 42 U.S.C. § 12132. The
real party in interest in an official-capacity suit is the government entity. As
a result, it is irrelevant whether the ADA would impose individual liability
on the officer sued; since the suit is in effect against the “public entity,” it
falls within the express authorization of the ADA.
Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir.2003) (citation omitted), cert. denied, 541
U.S. 936 (2004). See also Harris v. Mils, 572 F.3d 66, 73 (2d Cir. 2009) (rejecting various New
interests.” The Supreme Court determined in Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645 (2002) this element was unnecessary, as the Young doctrine requires “only ... a
straightforward inquiry into whether the complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” See Muscogee (Creek) Nation v. Pruitt, 669
F.3d 1159, 919 n. 1 (10th Cir. 2012) (recognizing partial abrogation of Chaffin).
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York district cases “[i]nsofar as [they] hold that individual defendants cannot be sued in
their official capacities for prospective injunctive relief under the ADA....”).
Because the Complaint may be less than clear, the court grants in part and denies
in part defendants’ Motion to Dismiss to clarify that the Complaint is restricted to an ADA
claim in Count I against Dr. Stites in his official capacity for prospective injunctive relief,
and, in Count II, a Rehabilitation Act claim against KU School of Medicine for injunctive
relief and damages.
IT IS SO ORDERED this 10th day of April, 2013.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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