Cooley v. Western Michigan University Cooley Law School et al

Filing 39

ORDER Adopting 35 Report and Recommendation, GRANTING 15 , 19 , 20 , DENYING 23 Motion to for Leave to Amend, and DISMISSING Case with Prejudice. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANDRÉ DESHAWN
COOLEY,
Plaintiff,
v.

Case No. 16-13727

WESTERN MICHIGAN
UNIVERSITY COOLEY
LAW SCHOOL, et al.,

Hon. Terrence G. Berg
Hon. Elizabeth A. Stafford

Defendants.
/
ORDER ADOPTING REPORT AND RECOMMENDATION (DKT.
35) GRANTING DEFENDANTS’ MOTIONS TO DISMISS (DKTS.
15, 19, 20), DENYING PLAINTIFF’S MOTION FOR LEAVE TO
AMEND (DKT. 23) AND DISMISSING CASE WITH PREJUEDICE
Plaintiff André Deshawn Cooley is currently enrolled as a law student at Western Michigan University (WMU) Cooley Law School. Unhappy with the grade he received in Contracts II in 2015, he met with his
Professor and surreptitiously recorded their conference concerning his
performance on the exam. When the Professor did not agree to alter his
grade, Plaintiff appealed his grade to school officials, filed a complaint
with the Michigan Department of Civil Rights, and filed a lawsuit in the
Kent County Circuit Court. None of these processes gained Plaintiff the

relief that he sought. Plaintiff now brings this pro se lawsuit against all
of the entities that denied him relief: WMU-Cooley and its employees1,
the State of Michigan and its employees2, and Kent County and its employees3 (Dkt. 4; Amend. Compl.). Plaintiff’s Amended Complaint, over
50 pages long, states that he suffers from attention deficit hyperactivity
disorder (ADHD), and is thus a protected person under the Americans
with Disability Act (ADA) and Michigan’s Persons with Disability Civil
Rights Act (PWDCRA) (Id. Pg ID 72, 95). Plaintiff alleges that Defendants discriminated against him due to his disability. Plaintiff’s Amended
Complaint also references 42 U.S.C. § 1983, but only in a perfunctory
manner. The majority of Plaintiff’s Amended Complaint consists of a recitation of background facts, specifically a discussion of portions of his
Contracts II exam for which he believes deserved more points (Dkt. 4, Pg

The Law School Defendants include WMU-Cooley, Don LeDuc (President and
Dean), Nelson Miller (Associate Dean of Grand Rapids campus), Christopher Hastings (Contracts II Professor), and Paul Zelenski (Associate Dean of Enrollment and
Student Services) (collectively, the “Law School Defendants”).

1

The State of Michigan Defendants include, “Ricky” Snyder (presumably Governor
Rick Snyder), and Agustin Arbulu (Executive Director of the Michigan Department
of Civil Rights) (collectively, the “State Defendants”).

2

The Kent County Defendants include the County Board of Commissioners, Daryl
Delabbio (former Kent County Administrator), and the Honorable Donald Johnston,
Chief Judge, Kent County Circuit Court. (collectively, the “Kent County Defendants”).

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2

IDs 7-28). Also included in the Amended Complaint is a section that appears to be a transcript of Plaintiff’s conversation with his Contracts Professor (Dkt. 4, Pg IDs 28-41). The portion of the Amended Complaint
containing Plaintiff’s legal “claims” spans the remaining seven pages
(Dkt. 4, Pg IDs 42-49). Plaintiff’s proposed Second Amended Complaint
(Dkt. 24) mentions “due process” and “equal protection” more explicitly,
but again, these purported constitutional claims each circle back to a discussion of various disability statutes.
Each group of Defendants has moved to dismiss the Amended Complaint (Dkts. 15, 19, 20). Defendants’ grounds for dismissal can be summarized as follows:
 The Law School Defendants – (1) since WMU-Cooley is not a
public entity (and remains a private institution) Title II of the
ADA and § 1983 are inapplicable; (2) Plaintiff has not sufficiently alleged a failure to accommodate claim, rather, Plaintiff’s Complaint acknowledges that he received accommodations for his disability; (3) Plaintiff failed to allege any disparate impact; (4) the ADA does not provide for liability
against any of the individual Law School Defendants; (5) that
evaluation of a student’s performance on a law school examination is not within the province of the Court; and (6) that
Plaintiff failed to properly serve Defendants LeDuc and Zelenski with the summons and complaint (Dkt. 19).
 The State Defendants – Plaintiff’s claims against the State of
Michigan, and any of its departments, are barred by Eleventh
Amendment Immunity (Dkt. 15).
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 The Kent County Defendants – (1) Plaintiff’s claims against
Chief Judge Johnston are barred by judicial immunity; and
(2) Plaintiff’s Complaint fails to allege any wrongdoing, or personal involvement, on behalf of the remaining Kent County
Defendants (Dkt. 20).
Plaintiff filed responses to each of Defendants’ motions (Dkts. 22, 28, 29).
Plaintiff also filed a motion for leave to amend (Dkt. 23), and a proposed
second amended complaint (Dkt. 24), in response to Defendants’ motions
to dismiss.
The motions were referred to Magistrate Judge Elizabeth A. Stafford, who on August 2, 2017 issued a report and recommendation (Dkt.
35) recommending that all three of Defendants’ motions be granted, and
that Plaintiff’s motion for leave to amend be denied. In summary, the
report and recommendation urges: (1) that the Court to dismiss Plaintiff’s case against the Law School Defendants, because exam-grading falls
within the discretion of academic professionals and is not properly the
subject of an ADA or § 1983 claim; (2) that the State Defendants are entitled to Eleventh Amendment immunity; (3) that Judge Johnston is entitled to judicial immunity; and (4) that Plaintiff has not stated a valid
claim against the remaining Kent County Defendants, as he fails to allege sufficient involvement of these officials.
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The Court has reviewed Magistrate Judge Stafford’s report and recommendation. The law provides that either party may serve and file written objections “[w]ithin fourteen days after being served with a copy” of
the report and recommendations. 28 U.S.C. § 636(b)(1). Plaintiff filed
timely objections (Dkt. 35); the Law School Defendants filed a timely response (Dkt. 37) to Plaintiff’s objections. The State and Kent County Defendants did not file responses to Plaintiff’s objections. The district court
will make a “de novo determination of those portions of the report . . . to
which objection is made.” 28 U.S.C. § 636(b)(1)
Plaintiff’s objections are a 45-page amalgamation of legal citations
that generally rehash the claims in the Amended Complaint and reassert
the arguments in his responses to the motions to dismiss, without focusing specifically on any defects in the reasoning or the authorities relied
on by the Magistrate Judge. “The filing of vague, general, or conclusory
objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Cole v. Yukins, Fed. App’x. 354,
356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir.
1995)). Although Plaintiff fails to articulate any coherent basis for this
Court to reject the report and recommendation, the Court has endeavored
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to liberally construe and try to understand Plaintiff’s objections. Plaintiff’s first objection is to:
[T]he Court’s assertion and fact-to law application that “to state a
claim for equal protection a plaintiff must adequately plead that the
government treated the plaintiff desperately [sic] as compared to
similarly situated persons and that such disparate treatment either
burdens a fundamental right, targets a suspected class, or has no
rational basis.”
Plaintiff’s second objection is to:
[T]he Court’s assertion and fact-to law application where this Court
has noted that courts are not in the business of second-guessing a
professors [sic] professional judgment; however, the professor even
second guesses his own professional judgment, because during the
conversation that was recorded by the Plaintiff unbeknownst to the
professor, the professor even acknowledges himself that the Plaintiff did make the necessary points of law to be awarded points, but
was not.
Plaintiff’s third objection is to:
[T]he Court’s assertion and fact-to law application where this court
further asserts that the Supreme Court’s ruling that the courts may
not override an academic decision absent a showing that those responsible did not actually exercise professional judgment is significant because this professor made a different judgment when he was
in the meeting with this plaintiff and was unaware he was being
recorded. This defendant acknowledged errors in the examination
and dismissing this plaintiffs [sic] lawsuit not only invades the
province of the jury but I second guesses the professors secondguess. The facts and issues are something that should be decided
by the jury. This professor provided several false statements two
[sic] investigators, but why would the professor have a need to lie
when the truth would have sufficed.
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The Amended Complaint raises claims under 42 U.S.C. § 1983, Title
II of the Americans with Disabilities Act (ADA), and Michigan’s Persons
with Disabilities Civil Rights Act.

“[T]he ADA is designed ‘to provide a

clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’” Tennessee v. Lane, 541
U.S. 509, 516, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (quoting 42 U.S.C.
§§ 12101(b)(1), (b)(4)). “It forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered
by Title I of the statute; public services, programs, and activities, which
are the subject of Title II; and public accommodations, which are covered
by Title III.” Id. at 516–17, 124 S.Ct. 1978. Title V, in turn, prohibits
retaliation, interference, coercion, or intimidation with respect to individuals invoking the protection of Titles I through III. See 42 U.S.C. § 12203.
Plaintiff’s claims in this case are brought under Title II of the ADA.
Plaintiff’s Complaint also relies upon Michigan’s Persons with Disabilities Civil Rights Act, but that act essentially tracks the ADA, so the analysis merges, at least under the circumstances of this case. See Curry v.
Cyprian Ctr., 17 Fed. App’x 339, 341 (6th Cir. 2001).

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The Court will consider Plaintiff’s claims as they relate to each of
the three groups of Defendants.
A. The State Defendants
As noted, the report and recommendation urges dismissal of Plaintiff’s claims against the State Defendants, based on Eleventh Amendment immunity. The Eleventh Amendment guarantees that nonconsenting States may not be sued by private individuals in federal court. See
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001)
(citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72–73 (2000)). Congress, however, “may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a
valid grant of constitutional authority.’” Id. (quoting Kimel, 528 U.S., at
73).
Congress has unequivocally expressed its intent to abrogate state
sovereign immunity for violations of the ADA. See United States v. Georgia, 546 U.S. 151, 154 (2006) (citing 42 U.S.C. § 12202 (“A State shall not
be immune under the Eleventh Amendment to the Constitution of the
United States from an action in [a] Federal or State court of competent
jurisdiction for a violation of this chapter”)). “But the Supreme Court has
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held that Congress’s attempted abrogation is only valid in limited circumstances, depending upon the nature of the ADA claim.” Babcock v.
Michigan, 812 F.3d 531, 534 (6th Cir. 2016) (citing cases). “To guide the
lower courts in assessing whether the Eleventh Amendment proscribes
an ADA Title II claim, the Supreme Court has set forth a three-part test:
[D]etermine ... on a claim-by-claim basis, (1) which aspects of the
State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar
as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is nevertheless valid.
Id. at 534-35 (quoting Georgia, 546 U.S. at 159; citing Mingus v. Butler,
591 F.3d 474, 482 (6th Cir. 2010)).
In this case, the bulk of Plaintiff’s allegations in his Amended Complaint (Dkt. 4) and in his proposed Second Amended Complaint (Dkt. 24)
focuses on the actions of the Law School Defendants. Under the Supreme
Court’s test, the Court must first identify how the Complaint alleges that
the State’s conduct violated Title II of the ADA. Plaintiff’s claims against
the State Defendants appear limited to the State’s adjudication – and
ultimate dismissal – of a complaint that he filed with the Michigan Department of Civil Rights (MDCR), concerning the same alleged underlying discrimination by the Law School Defendants. Specifically, Plaintiff
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alleges that the MDCR failed to conduct an impartial investigation, dismissed his complaint, and denied his request for reconsideration (Dkt. 4,
Pg ID 109). These allegations do not allege that Plaintiff was excluded
or denied benefits by any public service, program, or activity on the basis
of a disability. Nor do these allegations specify any disparate treatment
or discrimination against Plaintiff based on his disability. Plaintiff’s allegations are thus insufficient to state either a valid ADA claim sufficient
to overcome Eleventh Amendment immunity or any colorable claim of a
violation of Due Process and Equal Protection rights under the 14th
Amendment against the State Defendants. Thus, the Court will accept
the Magistrate Judge’s recommendation that the State Defendants’ motion to dismiss (Dkt. 15) should be granted.
B. The Law School Defendants
As to the Law School Defendants, the report and recommendation
concludes that the Court should grant their motion to dismiss, as Plaintiff fails to allege a plausible discrimination claim against them. This
recommendation is sound, and Plaintiff’s objections thereto are unavailing.

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As noted by the Magistrate Judge, discrimination laws do not require “an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.” Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 60
L.Ed.2d 980 (1979). Further, when reviewing the substance of academic
decisions, courts “should show great respect for the faculty’s professional
judgment.” Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225, 106
S.Ct. 507, 88 L.Ed.2d 523 (1985). “‘University 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, 106 S.Ct. 507 (quoting Board of Curators, Univ. of Mo. v.
Horowitz, 435 U.S. 78, 96 n. 6, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978) (Powell, J., concurring)). Courts must also give deference to professional academic judgments when evaluating the reasonable accommodation requirement. See McGregor v. Louisiana State Univ. Bd. of Supervisors, 3
F.3d 850, 859 (5th Cir. 1993); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d
791, 795 (1st Cir. 1992); Kaltenberger v. Ohio Coll. of Podiatric Med., 162
F.3d 432, 436 (6th Cir. 1998).

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In this case, Plaintiff does not allege that he was dismissed from
WMU-Cooley or that he was not provided reasonable accommodations in
taking his Contracts II examination. Indeed, Plaintiff alleges that he remained enrolled as a student at WMU-Cooley, that he received testing
accommodations for his ADHD, and that he submitted his Contracts II
exam in the manner allowed for accommodated students (Dkt. 4, Pg IDs
72-73). Nowhere does Plaintiff allege that he requested or needed any
other accommodation from the Law School. The core of Plaintiff’s case is
that, in his judgment, his Contracts Professor gave him a grade that was
lower than what he believed he deserved. The Amended Complaint includes what purports to be a transcript of the surreptitiously-recorded
conference between Plaintiff and Professor Hastings. Nothing in that
transcript supports a conclusion that the grading process was discriminatory or failed to accommodate Plaintiff’s disability. While Plaintiff
claims that Professor Hastings failed to apply the “holistic grading approach” that he said he used, in the quoted dialogue between Plaintiff
and the Professor he appeared to apply just such an approach, awarding
Plaintiff points where he discussed relevant law and facts, but denying

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them where his organization, argument, or legal vocabulary was inadequate (Dkt. 4, Pg ID 42-54). The Amended Complaint draws no connection between Plaintiff’s disability, any alleged failure to accommodate,
and the awarding of Plaintiff’s grade. This does not state a valid ADA
claim, and also does not allege any kind of discrimination or denial of due
process that could make out a 14th Amendment violation. The Court
therefore accepts the Magistrate Judge’s recommendation that the Law
School Defendants’ motion to dismiss (Dkt. 15) should be granted.
C. The Kent County Defendants
Finally, as to the Kent County Defendants, the report and recommendation correctly recognized that Chief Judge Johnston is entitled to
judicial immunity. It further recognized that Plaintiff failed to allege
sufficient facts to state a valid discrimination claim against the remaining Kent County Defendants. Plaintiff’s objections do not persuade the
Court to alter these recommendations. The Court therefore accepts the
Magistrate Judge’s recommendation that the Kent County Defendants’
motion to dismiss (Dkt. 20) should be granted.

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CONCLUSION
For the reasons set forth above, the report and recommendation
(Dkt. 35) is hereby ACCEPTED and ADOPTED, and Plaintiff’s objections (Dkt. 36) thereto are OVERRULED. Defendants’ motions to dismiss (Dkts. 15, 19, 20) are GRANTED and this case is hereby DISMISSED WITH PREJUDICE.
SO ORDERED.

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 29, 2017

Certificate of Service
I hereby certify that this Order was electronically submitted on
September 29, 2017, using the CM/ECF system, which will send notification to each party.

s/A. Chubb
Case Manager

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