Raithatha v. University of Pikeville et al

Filing 47

MEMORANDUM OPINION AND ORDER: Dfts' Motion for Summary Judgement, 37 , is GRANTED. ALL of Pla's claims against Dfts, 1 -1, are HEREBY DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Edward B. Atkins on 10/13/2017. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
CIVIL ACTION NO. 7:16-CV-251-EBA
RAVI RAITHATHA,
V.

PLAINTIFF,
MEMORANDUM OPINION AND ORDER

UNIVERSITY OF PIKEVILLE, et al.,

DEFENDANTS.

INTRODUCTION
Plaintiff, Ravi Raithatha, brought this action alleging that Defendants—the University of
Pikeville d/b/a/ the Kentucky College of Osteopathic Medicine, Dr. Boyd Buser, and Dr. Tracy
Soltesz—discriminated against him on the basis of his race and national origin when he was
expelled from the University of Pikeville’s College of Osteopathic Medicine. [R. 1-2; R. 1-1 at 3–
6]. Defendants seek summary judgment, [R. 37], and the matter has been fully briefed. For the
reasons that follow, this Court will grant the Defendants’ Motion for Summary Judgment and
dismiss this action with prejudice.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Prior to his admission to the University of Pikeville Kentucky College of Osteopathic
Medicine, hereinafter “the College,” Plaintiff had been expelled from the Touro College of
Osteopathic Medicine for poor academic performance. [R. 37-1 at 5 ¶ 2 (citing R. 35, Deposition
of Ravi Raithatha, at 8–9); see also R. 35-1 at 6, 8]. Plaintiff was admitted to the College for the
fall 2012 semester, but, because of his academic history, his admission was permitted only
following the completion of multiple courses at Eastern Kentucky University and a personal
meeting with Dr. Buser, where Plaintiff’s academic integrity and personal character were

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evaluated. [R. 37-1 at 6 ¶ 3, 4]. Plaintiff’s performance for the first two years of his attendance at
the College was satisfactory. [R. 33 at 28–29].
During the spring 2015 semester, as a part of his third-year curriculum, Plaintiff was
required to complete clinical rotations at Grandview Medical Center in Dayton, Ohio. While there,
he was required to record his activities in a “log” for purposes of grading. [R. 37-1 at 6 ¶ 2; R. 378 at 12, (citing R. 35, Deposition of Ravi Raithatha, at 10)]. Plaintiff falsified his case logs for that
clinical rotation, and he admitted as much before the College’s Promotion and Matriculation
Committee at a hearing on April 8, 2015. [R. 37-1 at 2; R. 37-12 (“I should never have logged
days in which I was not working in the office, and agree that I should be punished for my actions.”);
R. 42 at 2 (“Plaintiff admitted his error.”)]. The following day, the Committee recommended that
Raithatha be given a failing grade, placed on temporary academic probation, permanent
disciplinary probation, suspended from the College for six months, and required to enroll in an
ethics course. [R. 37-6; R. 37-11; R. 37-12; R. 37-13].
Before the punishments were finally imposed, Plaintiff appealed the Committee’s
recommendation to Dr. Buser by submitting a letter and making a personal appearance. [R. 37-12;
R. 37-13]. On May 4, 2015, the recommended punishments were approved by Dr. Buser as within
the authority of the Promotion and Matriculation Committee. [R. 37-13; see also R. 37-6 at 7
(outlining the Promotion and Matriculation Committee’s authority to punish troubled students)].
Although Plaintiff remained on academic and disciplinary probation, he was removed from
his suspension five months early, on June 15, 2015. [R. 37-14; R. 42-1]. Dr. Soltesz worked with
Raithatha to aid him in enrolling in the ethics course required by the Promotion and Matriculation
Committee and Dr. Buser. [R. 37-15]. And, on request, Plaintiff was permitted by Dr. Buser to
resume clinical rotations at the Hazard ARH Regional Medical Center on August 31, 2015, months

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ahead of schedule. [R. 35 at 24, 29 ¶ 15–16; R. 37-18; R. 42-3]. Before he could perform his
rotations, however, Hazard ARH Regional Medical Center required Plaintiff to pass a drug test.
[R. 35 at 31 ¶ 1–6; see also R. 37-8 at 10; R. 33 at 40]. Plaintiff failed. [R. 35-27; R. 35 at 31].
Due to the fact that Plaintiff failed Hazard ARH’s drug test, Hazard ARH dismissed
Plaintiff from its campus, and Plaintiff was unable to complete his clinical rotation. [R. 35 at 31 ¶
15–17]. Plaintiff was again called for a hearing before the Promotion and Matriculation Committee
on September 23, 2015. [R. 35 at 33–36; R. 37-19]. Following the hearing—where Plaintiff
admitted to using drugs while already on academic and disciplinary probation, and suspended from
the College—the Committee recommended his expulsion. [R. 35 at 33–36; R. 37-19; R. 37-1 at
12 (“I mean what you said is true . . . I know it was a huge mistake . . . I did it.”)]. Plaintiff appealed
the Committee’s recommendation to Dr. Buser, and on October 13, 2015, Dr. Buser met with him
to discuss the appeal. [R. 35 at 36 ¶ 10–11; R. 37-19; R. 37-20; see also R. 37-6 at 4–5 (indicating
the use of drugs to be in direct contravention of College policy)]. Dr. Buser upheld Plaintiff’s
expulsion as within the authority of the Promotion and Matriculation Committee. [R. 35 at 37 ¶ 6–
8; R. 37-20; see also R. 37-6 at 6–8 (outlining many reasons for which students may be expelled
from the College, including “[f]ailure of more than one clinical rotation”); R. 37-8 at 10 (“A
positive [drug] test result may become grounds for dismissal.”)].
Thereafter, Plaintiff filed this suit, alleging he was “subject to disparate treatment due to
his race and national origin.” [R. 1-1 at 4 ¶ 15].
SUMMARY JUDGMENT STANDARD
“A party may move for summary judgment, identifying each claim or defense—or the part
of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Id. In making the
determination as to whether summary judgment is warranted, “a court must view the evidence ‘in
the light most favorable to the opposing party.’” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.” Id. (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). In such a case, summary judgment is warranted. Alabama v. North Carolina, 560
U.S. 330, 344 (2010); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
But there is “no express or implied requirement in Rule 56 that the moving party support its motion
with affidavits or other similar materials negating the opponent’s claim.” Id. As such, in some
cases, the moving party may be “‘entitled to a judgment as a matter of law’ because the nonmoving
party has failed to make a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Id. (quoting Fed. R. Civ. P. 56). Such a motion “therefore
requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). This is so
because “[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of
factually unsupported claims or defenses.” Id. at 323–24. “[T]he existence of a mere scintilla of
evidence in support of the non-moving party’s position will not be sufficient; there must be
evidence on which the jury could reasonably find for the non-moving party.” Sutherland v. Mich.

4

Dept. of Treasury, 344 F.3d 603, 613 (6th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986)).
I. COUNT ONE: KENTUCKY CIVIL RIGHTS ACT
Defendant alleges the University of Pikeville, hereinafter “the University,” and thus the
College by implication, is a public accommodation under K.R.S. § 344.130, [R. 1-1 at 2 ¶ 21]; that
“[a]s a public accommodation, the Defendant cannot discriminate against the Plaintiff due to his
race or national origin,” [Id. at 2 ¶ 22]; that “the dismissal of the Plaintiff by the Defendant UPKYCOM subjected the Plaintiff to desperate (sic) discipline due to his race and national origin,”
[Id. at 3 ¶ 23]; and that “[t]he dismissal of the Plaintiff from the Defendant University violated
K.R.S. § 344.130” and caused Plaintiff to incur damages. [Id. at ¶ 25].
A. Whether the College is a Public Accommodation for
Purposes of the Kentucky Civil Rights Act
K.R.S. § 344.130 defines public accommodations as “any place, store, or other
establishment, either licensed or unlicensed, which supplies goods or services to the general public
or which solicits or accepts the patronage or trade of the general public or which is supported
directly or indirectly by government funds.” K.R.S. § 344.130, however, goes on to exclude private
clubs, certain small “boarding houses,” and religious institutions from its ambit. Id. K.R.S. §
344.130 is but a section of a much larger body of law, the Kentucky Civil Rights Act (the “Act”).
K.R.S. § 344.010 et seq. Kentucky courts have “construed the Act liberally.” Commonwealth of
Kentucky v. Pendennis Club, Inc., 153 S.W.3d 784, 787 (Ky. 2004). (citing Dep't of Corr. v. Furr,
Ky., 23 S.W.3d 615, 617 (Ky. 2000)); see also Toyota Motor Mfg., U.S.A., Inc. v. Epperson, 945
S.W.2d 413, 415 (Ky. 1997). “Exceptions to the Act’s coverage are interpreted narrowly.” Id.
(citing Kreate v. Disabled Am. Veterans, 33 S.W.3d 176, 181 (Ky. Ct. App. 2000)). K.R.S. §
344.020, the defining provision of the Act, requires a broad statutory interpretation of the Act to
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fully effectuate its purposes. Pendennis Club, Inc., 153 S.W.3d at 787. That section provides the
following statement:
The general purposes of this chapter are:
To safeguard all individuals within the state from discrimination because of familial
status, race, color, religion, national origin, sex, age forty (40) and over, or because
of the person's status as a qualified individual with a disability as defined in KRS
344.010 and KRS 344.030; thereby to protect their interest in personal dignity and
freedom from humiliation, to make available to the state their full productive
capacities, to secure the state against domestic strife and unrest which would
menace its democratic institutions, to preserve the public safety, health, and general
welfare, and to further the interest, rights, and privileges of individuals within the
state. . . .
K.R.S. § 344.020(1)(b). The same section, at §§ (1)(a) provides the Act is to be interpreted “within
the state of the policies embodied in the . . . Americans with Disabilities Act of 1990 (P.L. 101336).” Id. The Americans with Disabilities Act provides “[t]he following private entities are
considered public accommodations for purposes of this subchapter, if the operations of such
entities affect commerce . . . a nursery, elementary, secondary, undergraduate, or postgraduate
private school, or other place of education.” 42 U.S.C. 12181(7)(J) (emphasis added).
The Kentucky Court of Appeals “interpret[s] KRS 344.130 as creating a two-prong test for
determining what constitutes a place of public accommodation.” K.M. ex rel. B.M. v. Fayette
County Public Schools, 2003 WL 21771952, 4* (Ky. Ct. App. 2003). Under the Kentucky test, a
“place of public accommodation is: [1] any place, store, or other establishment; that [2] either (a)
supplies goods or services to the general public; (b) solicits or accepts patronage or trade of the
general public; or (c) is supported directly or indirectly by government funds.” Some schools have
been interpreted as a place of public accommodation under the Kentucky Civil Rights Act. Id. at
5. Nonetheless, the parties to this case have failed to demonstrate whether a private school may or
may not be a public accommodation solely for the purpose of the application of the Kentucky Civil

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Rights Act. Because the parties have not conclusively so shown either outcome, this Court takes
no position on the question of whether the University, or private schools generally, may be a public
accommodation for the sole purpose of application the Kentucky Civil Rights Act. In any event,
such a finding is unnecessary: for even if the University were a public accommodation for purposes
of the Act, Plaintiff’s claims remain insufficient for relief.
B. Whether Plaintiff States a Claim Under the Kentucky Civil Rights Act
First, although Plaintiff argues his claim arises under K.R.S. § 344.130, [R. 1-1], this Court
will note that K.R.S. § 344.130 defines public accommodations, but does not forbid their
discriminatory behavior. K.R.S. § 344.120 forbids discriminatory behavior by public
accommodations as defined by K.R.S. § 344.130. For that reason, this Court will evaluate
Plaintiff’s claim as if it had been properly filed under K.R.S. § 344.120.
The violation of K.R.S. § 344.120 is a “straightforward proposition in situations where a
person is ordered off the premises of a business establishment otherwise open to the public, or
service is otherwise refused or limited, for no reason except the person’s protected status.”
Lexington Fayette Urban Cnty. Human Rights Comm’n. v. Hands on Originals, Inc., 2017 WL
2211381, 5* (Ky. Ct. App. 2017). “A university could not, for example, refuse to enroll a student
because the student is Hispanic.” Id. Although distinct in arising under state—not federal—law,
claims under K.R.S. § 344.120 “should be analyzed via the same framework” as one arising under
42 U.S.C. § 1981. Miller v. Freedom Waffles, Inc., 2007 WL 628123, 5* (W.D. Ky. 2007)
(Heyburn, J.); see also Camara v. Schwan's Food Mfg., Inc., Case No. 04-121, 2005 WL 1950142
(E.D. Ky. 2005) (noting similarities between the Kentucky Civil Rights Act and Section 1981).
“[T]he Court is unable to find any precedent that would dictate otherwise.” Miller, 2007 WL
628123, 5*. Again, assuming without finding that the University is a public accommodation for

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purposes of the Kentucky Civil Rights Act, this Court shall analyze Plaintiff’s claims under K.R.S.
§ 344.120 as if they had been filed under Section 1981.
The Sixth Circuit “has held that to prevail in a claim of race discrimination under § 1981
relying on circumstantial evidence, a plaintiff must meet the burden-shifting standard of proof for
Title VII cases established by the Supreme Court.” Christian v. Wal-Mart Stores, Inc., 252 F.3d
862, 868 (6th Cir. 2001); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981).” “Under this standard, a
plaintiff must first establish a prima facie case of discrimination by a preponderance of the
evidence.” Christian, 252 F.3d at 868. “The burden of production then shifts to the defendant,”
who must provide a “legitimate, non-discriminatory” purpose for the allegedly discriminatory
behavior. Id. “To prevail, the plaintiff must then prove by a preponderance of the evidence that the
defendant's proffered reason is not its true reason but a pretext for discrimination.” Id. It follows
that where the plaintiff cannot rebut the defendant’s claims by a preponderance of the evidence,
the plaintiff’s claims will necessarily fail.
Various tests for a prima facie case under Section 1981 have been established by the Sixth
Circuit under McDonnell Douglas, each incorporating the minutia of unique scenarios. “While §
1981 is generally invoked in the employment context for, e.g., claims of hostile environment,
failure to promote, or wrongful dismissal, litigants have also brought suit under the statute for
claims of discrimination in retail and service settings.” Id. But no test has ever been developed in
the Sixth Circuit “for a prima facie case of discrimination under § 1981 outside of the employment
context.” Id. This is no matter, however, for “[t]he McDonnell Douglas formulation ‘was never
intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to

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evaluate the evidence.’” Daugherty v. City of Danville, Ky., 856 F.2d 193, 6* (6th Cir. 1988)
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
McDonnell Douglas—a failure to hire case—outlined the traditional standard by which a
prima facie case is established under Section 1981:
The complainant in a Title VII trial must carry the initial burden under the statute
of establishing a prima facie case of racial discrimination. This may be done by
showing (i) that he belongs to a racial minority; (ii) that he applied and was
qualified for a job for which the employer was seeking applicants; (iii) that, despite
his qualifications, he was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant's qualifications.
McDonnell Douglas, 411 U.S. 792, 802. This test has been adapted to the employee discharge
context, which is analogous, though not precisely equivalent, to this case. In a discharge case, a
Section 1981 claimant must show (1) that he or she is a member of a protected class, (2) that he or
she suffered an adverse action, (3) that he or she was qualified for their position, and (4) that he or
she was replaced by or treated differently than similarly situated members of the unprotected class.
Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 728–29 (6th Cir. 1999); Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998); Morvay v. Maghielse Tool &
Die Co., 708 F.2d 229, 233 (6th Cir. 1983). The plaintiff is required to “demonstrate that he or she
is similarly-situated to the non-protected employee in all relevant respects.” Ercegovich, 154 F.2d
353. “Failure to prove any one of these elements by a preponderance of the evidence mandates a
dismissal of the plaintiff's suit.” Morvay, 708 F.2d at 233.
Plaintiff has established that he is a member of a protected class. Plaintiff is an AfricanAmerican male with Indian heritage. [R. 37-1 at 5 ¶ 1]. Plaintiff has also shown that he was subject
to adverse action, including his eventual expulsion. [R. 35 at 33–36; R. 37-12; R. 37-11; R. 37-13;
R. 37-19]. But this was only after Plaintiff admitted to falsifying his clinical rotation logs—thereby

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failing his pediatric rotation for cheating—and then admitted to having abused drugs after having
already been suspended and placed on academic and disciplinary probation for said cheating. [R.
37-12 (“I should never have logged days in which I was not working in the office, and agree that
I should be punished for my actions.”); R. 37-1 at 12 (“I mean what you said is true . . . I know it
was a huge mistake [to abuse drugs while on probation and suspension] . . . I did it.”)]. It is for this
reason that Plaintiff fails to establish the third element of a prima facie case under the Kentucky
Civil Rights Act: that he was qualified for his position at the College.
“A plaintiff must do more than simply impugn the legitimacy of the asserted justification
for her termination.” Warfield v. Lebanon Correctional Inst., 181 F.3d 723 (6th Cir. 1999).
Plaintiff has not. Plaintiff had notice that cheating and the abuse of drugs were in violation of the
policies of the College. Such was included in the Handbooks Plaintiff was provided. [R. 37-6,
College Student Handbook, at 4–8 (outlining many reasons for which students may be expelled
from the College, including “[f]ailure of more than one clinical rotation”); R. 37-8, College
Clinical Rotations Manual, at 10 (“A positive [drug] test result may become grounds for
dismissal.”)]. Plaintiff acknowledges his notice of these College policies, and the prohibition of
his adverse behaviors. [R. 37-12 (“I should have followed the letter of the Student Handbook.”);
see also R. 37-6 at 6–8; R. 37-8 at 10]. Plaintiff also admitted to both cheating and abusing drugs.
[R. 37-12; R. 37-1 at 12; see R. 35 at 92, 119–121]. Either violation on its own was sufficient
grounds for potential expulsion from the College. [R. 37-6 at 6–8; R. 37-8 at 10]. In such a case—
in the presence of admitted policy violations, both of which were adequate grounds for expulsion—
Plaintiff cannot legitimately claim that he was qualified to remain enrolled at the College.
Plaintiff has also failed to demonstrate the fourth element of a prima facie case under the
Kentucky Civil Rights Act: that he was replaced by or treated differently than a similarly situated

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member of an unprotected class. Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 728–29
(6th Cir. 1999). Plaintiff notes in his Response to Defendants’ Motion for Summary Judgment that
three students aside from Plaintiff received DUIs or were otherwise arrested while attending the
College. [R. 42 at 8]. Plaintiff fails to show, however, that these arrests were due to the abuse of
drugs, rather than merely alcohol. [Compare R. 37-6 at 4 (permitting the use of alcohol on campus
in limited situations, and not baring it off campus to those of legal age), with id. at 5 (baring the
use of drugs and noting the use of “illegal drugs is subject to disciplinary action.”). Plaintiff also
fails to allege that any of these students committed those offenses while already subject to
disciplinary and academic probation following the failure of a course for cheating, and the early
return from suspension from the College for the same. [R. 42 at 8]. Dr. Buser, in fact, testified at
his deposition that no other student at the College had ever committed equivalent violations. [R.
33 at 62]. Plaintiff also makes these allegations without evidence in support of his statements. [R.
42 at 8]. Plaintiff has neither attached documents to support his propositions, nor cited his source
of knowledge. [Id.; but see R. 34 at 16 ¶ 7–18 ¶ 5].
It is well-established that a moving party may be “‘entitled to a judgment as a matter of
law’ because the nonmoving party has failed to make a sufficient showing on an essential element
of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). A Plaintiff “must produce sufficient evidence from
which the jury may reasonably reject the [defendant’s] explanation.” Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir.1994). Plaintiff has failed to establish two
elements of a prima facie case under the Kentucky Civil Rights Act. Such an unfounded claim is
not sufficient to overcome the standard of review for a summary judgment motion. Sutherland v.
Mich. Dept. of Treasury, 344 F.3d 603, 613 (6th Cir. 2003). As such, Plaintiff’s claim under the

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Kentucky Civil Rights Act is insufficient for relief and Defendants are entitled to summary
judgement as a matter of law. Miller v. Freedom Waffles, Inc., 2007 WL 628123, 5* (W.D. Ky.
2007) (Heyburn, J.); Morvay v. Maghielse Tool & Die Co., 708 F.2d 229, 233 (6th Cir. 1983).
II. COUNT TWO: XIV AMENDMENT DUE PROCESS RIGHTS
Plaintiff alleges that the University, and thus the College by implication, violated his due
process rights under the Fourteenth Amendment of the United States Constitution. Plaintiff asserts
that Defendants denied Plaintiff procedural Due Process in his dismissal from the University,
causing him economic damages as well as embarrassment and humiliation. [R. 1-1]. Plaintiff prays
that this “Court find the Defendant violated the Plaintiff’s right to Due Process under the 14th
Amendment to the U.S. Constitution enforced by 42 U.S.C. § 1983 when Defendant dismissed
him from the University.” [Id.].
It is true that the Due Process Clause of the Fourteenth Amendment guarantees fair
procedure, or procedural due process, whenever there is an unjustified deprivation of some right
or benefit by a state actor. Zinermon v. Burch, 494 U.S. 113, 125 (1990). “[T]he injury caused by
a justified deprivation, including distress, is not properly compensable under § 1983.” Carey v.
Piphus, 435 U.S. 247, 263 (1978) (emphasis added); but see id. at 266–67 (“[W]e believe that the
denial of procedural due process should be actionable for nominal damages without proof of actual
injury.”). The initial inquiry of a Section 1983 action further limits the remedy’s application. Two
elements must be “present: (1) whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges,
or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451
U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams. 474 U.S. 327, 330–31

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(1986) (negligence is insufficient for a due process violation). Thus, Section 1983, and the
Fourteenth Amendment generally, are only applicable to actions fairly attributable to the state.
“[T]he Fourteenth Amendment, which prohibits the states from denying federal
constitutional rights and which guarantees due process, applies to acts of the states, not to acts of
private persons or entities.” Rendell-Baker v. Kohn, 457 U.S. 830, 837–38 (1982) (citing Civil
Rights Cases, 109 U.S. 3, 11 (1883); Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). “In cases under
§ 1983, ‘under color’ of law has consistently been treated as the same thing as the ‘state action’
required under the Fourteenth Amendment.” United States v. Price, 383 U.S. 787, 794, n. 7 (1966).
As such, private parties may not be subject to suit for a violation of a plaintiff’s right to procedural
due process unless “the alleged infringement of federal rights [is] ‘fairly attributable to the State.’”
Rendell-Baker, 457 U.S. at 838 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
“[T]he deprivation must be caused by the exercise of some right or privilege created by the state
or by a rule of conduct imposed by the state or by a person for whom the State is responsible.”
Lugar, 457 U.S. at 937. And “the party charged with the deprivation must be a person who may
fairly be said to be a state actor.” Id.
Although “[i]t is undisputed that [] Fourteenth Amendment protections, codified in 42
U.S.C. § 1983, are triggered only in the presence of state action,” “a private entity can be held to
constitutional standards.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000) (emphasis
added). This is so, however, if and only if such private entity’s “actions so approximate state action
that they may be fairly attributed to the state.” Id. (citing Lugar, 457 U.S. at 937). “The Supreme
Court in Lugar identified a two-part approach to the question of “fair attribution,” effectively
requiring that the action be taken (a) under color of state law, and (b) by a state actor.” Id.; see also
Lugar, 457 U.S. at 937. The Sixth Circuit applies “three tests to help in determining when the

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Lugar conditions are met. These are: (1) the public function test; (2) the state compulsion test; and
(3) the symbiotic relationship or nexus test.” Id. “The public function test requires that ‘the private
entity exercise powers which are traditionally exclusively reserved to the state, such as holding
elections or eminent domain.’” Id. (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th
Cir.1992)). “The state compulsion test requires that a state ‘exercise such coercive power or
provide such significant encouragement, either overt or covert, that in law the choice of the private
actor is deemed to be that of the state.’” Id. (quoting Wolotsky, 960 F.2d at 1335). Finally, “[u]nder
the nexus test, the action of a private party constitutes state action when there is a sufficiently close
nexus between the state and the challenged action of the regulated entity so that the action of the
latter may be fairly treated as that of the state itself.” Id. (internal citations omitted). “If the action
of the respondent school is not state action, our inquiry ends,” and the court need not reach the
question of whether there was a deprivation of a legally or constitutionally protected right. RendellBaker v. Kohn, 457 U.S. 830, 838 (1982).
The University fails to qualify as a state actor under each of these tests. First, the University
fails under the public function test. The University performs no functions traditionally exclusively
reserved to the state; the University neither holds public elections nor exercises imminent domain.
Further, the University has always been private. [R. 4 at 1 ¶1; R. 37-1 at 2 ¶ 2]. Second, the
University fails under the state compulsion test. It is true that the University receives some
government funding, but this funding is minimal. “[T]he only government funds the University
receives comes in the form of student loans and financial aid, grants, and some USDA building
loans.” [R. 37-1 at 21 (citing R. 33 at 9–10 (“[T]he operating budget would be—the federal portion,
federal support portion of that would be, I’m sure, less than five percent.”))]. Where the funding
received by the government is insufficient on its own—5% of the overall operating budget—of

14

being used to compel the University to take any specific action, and there is no other formal state
association, [R. 37-1 at 2 ¶ 2], the University cannot be said to satisfy the state compulsion test.
Finally, the University fails under the nexus test. The nexus test may be the most flexible
of the three tests herein discussed. Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961),
assures a generally broad interpretation of the nexus test. There, a privately owned restaurant was
deemed to be an agent of the state when it barred a man of color from entry, where the restaurant
was merely located within a state-owned parking garage. Id. Despite this generally broad
interpretation, however, the Supreme Court has defined the test narrowly with regard to private
schools. Rendell–Baker v. Kohn, 457 U.S. 830, 830–32 (1982), found a private school—where
“nearly all” of the students were referred by a state agency, the school was heavily regulated under
state laws, and public funding “accounted for at least 90%, and in one year 99%, of [the] school’s
operating budget”—to be a private actor for purposes of the Fourteenth Amendment and Section
1983. Thus, a private school’s discharge decisions are not attributable to the state, even where the
school is extensively populated, regulated, and funded by the state, unless some other factor
dictates otherwise. Rendell–Baker v. Kohn, 457 U.S. at 840 (cited in Lansing v. City of Memphis,
202 F.3d 821, 830 (6th Cir. 2000)). Here, Rendell–Baker dispenses with the entire Fourteenth
Amendment question. The University may receive public funds, but the University is not an agent
of the government. [R. 37-1 at 21; R. 33 at 9-10]. A private “school’s receipt of public funds does
not make the discharge decisions acts of the State.” Id. Thus, “our inquiry ends.” Id. at 838.
Plaintiff alleges there is some support to be found for the proposition that the University is
a state actor in various opinions of the courts. Each of these, however, is distinguishable from the
case at bar or supports a finding contrary to the one Plaintiff seeks. [R. 42 at 10]. For example,
Spark v. Catholic Univ. of America, 510 F.2d 1277 (D.C. Cir. 1975), declined to find state action

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on behalf of a private university, even where that private university received public funding. “The
fact the Federal Government contributes funds to the University, by itself, is insufficient to show
the exercise of influence on University decision-making or the encouragement of specific
policies.”1 Id. at 1282; accord Rendell–Baker v. Kohn, 457 U.S. at 840. Belk v. Chancellor of
Washington Univ., 336 F. Supp. 45 (E.D. Mo. 1970), dealt with the suppression of the educational
opportunities of a general student body where there was no basis to do so, not with the discipline
of a specific, troubled student. Id. Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970), pertained to
the University of Louisville, which is an entirely public university, unlike the University of
Pikeville, which is entirely private. [R. 37-1 at 2 ¶ 2]. And Lansing v. City of Memphis, 202 F.3d
821 (6th Cir. 2000), applying Rendell-Baker v. Kohn, 457 U.S. 830 (1982)—as discussed—leads
to the determination that the University was not engaged in state action, at least not in this
particular case. As such, neither the Fourteenth Amendment nor Section 1983 can be said to apply.
Not even under the cases Plaintiff cites in his favor.
III. COUNT THREE: SECTION II OF THE KENTUCKY CONSTITUTION
Plaintiff’s final claim arises under Section II of the Kentucky Constitution. “Article II of
the Kentucky Constitution prohibits arbitrary and capricious conducted (sic) by the Defendant,”
[R. 1-1 at 5 ¶ 34]; “[t]he Defendant[’s] application of the student code is (sic) a desperate (sic)
manner toward the Plaintiff was arbitrary and in violation of the student code adopted by the
Defendant,” [Id. at ¶ 34]; “[t]he conduct of the Defendant violated Article II of the Kentucky
Constitution,” [Id. at ¶ 36]; “[a]s a result of the Defendant’s arbitrary conduct the Plaintiff has

1
Plaintiff cites the various instances of state funding the University has received, and Plaintiff also notes that the
College is at least in part regulated by the state. [R. 42 at 10–11]. This fails to overcome Rendell-Baker, which found
a private school to be a private actor even where “nearly all” of the students were referred by a state agency, the school
was heavily regulated under state laws, and public funding “accounted for at least 90%, and in one year 99%, of [the]
school’s operating budget.” Rendell–Baker, 457 U.S. at 830–32 (1982).

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suffered economic loss as well as embarrassment and humiliation,” [Id. at 6 ¶ 37]. As such,
Plaintiff prays that this “Court find that the Defendant’s conduct was arbitrary in violation of
Article II of the Kentucky Constitution.” [Id. at ¶ 4]. This argument, however, like Plaintiff’s
argument that the Fourteenth Amendment should apply, fails as a matter of law.
Section II of the Kentucky Constitution provides “[a]bsolute and arbitrary power over the
lives, liberty and property of freemen exists nowhere in a republic, not even in the largest
majority.” K.Y. Const. § 2. This provision is understood as a procedural due process guarantee,
applicable exclusively to actions fairly attributable to the state. Commonwealth Natural Res. and
Env’t Prot. Cabinet v. Kentec Coal Co., Inc., 177 S.W.3d 718, 724 (Ky. 2005). Section II of the
Kentucky Constitution ensures that “the state is enjoined against arbitrariness.” Id. This guarantee
under the Kentucky Constitution is generally understood to be construed consistently with the
Fourteenth Amendment to the United States Constitution. See Smith v. O’Dea, 939 S.W.2d 353
(Ky. App. 1997). Thus—like the Fourteenth Amendment and Section 1983—Section II of the
Kentucky Constitution has no application. The University is not a state actor. See id; Rendell–
Baker v. Kohn, 457 U.S. 830, 830–32 (1982); [R. 37-1 at 2 ¶ 2]. As such, Plaintiff’s claims under
the Kentucky Constitution must fail. Defendants are entitled to summary judgment.
CONCLUSION
“[T]he existence of a mere scintilla of evidence in support of the non-moving party’s
position will not be sufficient; there must be evidence on which the jury could reasonably find for
the non-moving party.” Sutherland v. Mich. Dept. of Treasury, 344 F.3d 603, 613 (6th Cir. 2003)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). Plaintiff has failed to allege a
prima facie case under the Kentucky Civil Rights Act. K.R.S. § 344.010 et seq.; McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Likewise, Plaintiff has failed to show the presence

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of state action required for the application of the Fourteenth Amendment, 42 U.S.C. § 1981, and
Section II of the Kentucky Constitution. Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Smith v.
O’Dea, 939 S.W.2d 353 (Ky. App. 1997); [R. 37-1 at 2 ¶ 2].
Thus, for the reasons discussed, based on the undisputed facts, IT IS HEREBY
ORDERED that Defendants’ Motion for Summary Judgement, [R. 37], is GRANTED. ALL of
Plaintiff’s claims against Defendants, [R. 1-1], are HEREBY DISMISSED WITH
PREJUDICE.
This the 13th day of October 2017.

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