Bearden v. University of Oklahoma Board of Regents

Filing 16

ORDER denying defendant's motion to dismiss 10 ...see order for specifics. Signed by Honorable Joe Heaton on 2/10/2017. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GRACIE K. BEARDEN,

)
)
Plaintiff,
)
vs.
)
)
STATE OF OKLAHOMA ex rel.
)
THE BOARD OF REGENTS OF
)
THE UNIVERSITY OF OKLAHOMA, )
)
Defendant.
)

NO. CIV-16-1293-HE

ORDER
Plaintiff Gracie K. Bearden filed this action against the State of Oklahoma, ex rel.
Board of Regents of the University of Oklahoma (“University”) alleging that the University
violated the Americans with Disabilities Act of 1990 (“ADA”) and Section 504 of the
Rehabilitation Act (“Rehab Act”) when, while she was a nursing student, it failed to
accommodate her disabilities. The University has filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and (b)(6). It contends plaintiff has failed to state a claim under
either the ADA or the Rehab Act and that it is immune from liability for money damages
under Title II of the ADA.
When considering whether a plaintiff’s claim should be dismissed under Rule
12(b)(6), the court accepts all well-pleaded factual allegations as true and views them in
the light most favorable to the plaintiff as the nonmoving party. S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014). While all that is required is “a short and plain statement
of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), the
complaint still must contain “enough facts to state a claim to relief that is plausible on its

face” and “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 555 (2007). Considering plaintiff’s claims under this
standard, the court concludes defendant’s 12(b)(6) argument fails.
In support of its position that plaintiff has failed to plead facts sufficient to establish
a violation of the Rehab Act or Title II of the ADA, the University cites McGuinness v.
Univ. of New Mexico Sch. of Med., 170 F.3d 974 (10th Cir. 1998). That case, however,
was decided on summary judgment, not a motion to dismiss. The issue at this stage of this
proceeding is whether plaintiff has pleaded that she had been discriminated against and the
court concludes she has. Defendant’s arguments, such as whether it should “be forced to
unreasonably accommodate a student by permitting her to advance in her studies if she has
not demonstrated a requisite level of competency,” doc. #10, p. 7,1 raise issues of fact that
cannot be resolved at this time.
More difficult is defendant’s argument that it is entitled to Eleventh Amendment
immunity with respect to plaintiff’s ADA claim. States and their agencies generally are
protected from suit by sovereign immunity “as guaranteed by the Eleventh Amendment.”
Levy v. Kansas Dep't of Soc. & Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir. 2015).
Three exceptions to the Eleventh Amendment’s guarantee of immunity exist:

1

While the court notes that plaintiff did plead that the University accommodated her
disabilities in several respects, she nonetheless also alleged that it discriminated against her
because of her disabilities.

2

First, a state may consent to suit in federal court. Second, Congress may
abrogate a state's sovereign immunity by appropriate legislation when it acts
under Section 5 of the Fourteenth Amendment. Finally, under Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff may
bring suit against individual state officers acting in their official capacities if
the complaint alleges an ongoing violation of federal law and the plaintiff
seeks prospective relief.
Id. at 1169 (quoting Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th
Cir.2012)).
The Supreme Court held in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356,
374 (2001), that “Congress did not validly abrogate sovereign immunity for employment
discrimination claims made against states under Title I of the ADA.” Id. However, as
discussed in Levy, the Supreme Court later concluded in United States v. Georgia, 546
U.S. 151, 159 (2006), that “states can be sued on claims of discrimination in the provision
of public services under Title II of the ADA when states actually violate the Fourteenth
Amendment or when such services implicate fundamental constitutional rights.” Id.
To answer the specific question here, “whether the accommodation requirement of
Title II is a valid exercise of § 5 authority, as it applies to cases involving [higher public
education],” Guttman v. Khalsa, 669 F.3d 1101, 1113 (10th Cir. 2012), which neither the
Supreme Court nor the Tenth Circuit has resolved, the court applies the three-step analysis
from United States v. Georgia. Id. That requires the court to determine “‘(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

3

of sovereign immunity as to that class of conduct is nevertheless valid.’” Id. (quoting
Georgia, 546 U.S. at 159)).
The first step requires identification of “the state’s conduct that allegedly violated
Title II's prohibition against disability discrimination in the provision of state services or
programs.” Id. Plaintiff claims the State’s College of Nursing discriminated against her
because of her disabilities by failing to follow its own policies and procedures when she
had academic difficulties.
The second step requires an assessment of plaintiff’s Fourteenth Amendment
claims. Id. Here there is nothing to assess, as plaintiff does not allege any constitutional
violations in the complaint. 2 While she does discuss equal protection and substantive due
process claims in her response brief, the court can only consider what she has actually
pleaded. 3 As plaintiff failed to allege a Fourteenth Amendment violation, the court “must
proceed to the final Georgia step to determine whether the purported abrogation of
sovereign immunity is valid.” Id.4

2

See Guttman, 669 F.3d at 1108 (plaintiff filed an amended complaint which included an
equal protection and a procedural due process claim).
3

A plaintiff cannot amend a complaint by allegations in a brief.

4

As the Tenth Circuit explained in Guttman, “[u]nder the Fourteenth Amendment, a state
may be subject to a statutory suit under Title II of the ADA, even if there is no allegation of an
actual Fourteenth Amendment violation.” Guttman, 669 F.3d at 1116. The reason is, “the scope
of Congress's power to enact remedial legislation under § 5 of the Fourteenth Amendment is broad.
Congress' power to enforce the [Fourteenth] Amendment includes the authority both to remedy
and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath
of conduct than that which the Amendment itself proscribes.” Id. (internal quotation marks
omitted).

4

To determine the validity of Congress’ action the court must consider: 5 “(1) the
nature of the constitutional right at issue; (2) the extent to which Congress's remedial statute
was passed in response to a documented history of relevant constitutional violations; and
(3) whether the congressional statute is “congruent and proportional” to the specific class
of violations at issue, given the nature of the relevant constitutional right and the identified
history of violations.” Guttman, 669 F.3d at 1117 (citing City of Boerne v. Flores, 521
U.S.50, 529-36 (1997)).
The Tenth Circuit emphasized in Guttman that “[t]he Supreme Court has instructed
[courts] to assess Eleventh Amendment abrogation on a case-by-case basis—‘[w]ith
respect to the particular [governmental] services at issue in [the] case.’” Id. (quoting
Tennessee v. Lane, 541 U.S. 509, 527 (2004)). In Guttman the court considered “whether
the accommodation requirement of Title II is a valid exercise of the § 5 authority, as it
applies to cases involving professional licensing.” Id. at 1113. The plaintiff in that case, a
physician, had sued the state for money damages after it revoked his medical license based
on his mental condition. Applying the City of Boerne analysis, the court determined that
“Title II does not validly abrogate [the state's] sovereign immunity in the context of
professional licensing.” Id. at 1125. It reached that decision after concluding that: (1) the

5

The Supreme Court has held that “Congress may abrogate state sovereign immunity if
Congress (1) unequivocally indicates its intent to abrogate state sovereign immunity, and (2) acts
pursuant to a valid grant of constitutional authority under § 5.” Guttman, 669 F.3d at 1117 (citing
Garrett, 531 U.S. at 363). Because there is “no question Congress intended Title II to abrogate
state sovereign immunity,” id., the remaining question is the validity of its action. Id.

5

constitutional right asserted -- “a disabled individual's right to practice in his chosen
profession” -- was not entitled to heightened scrutiny, id. at 1118; (2) “Congress did not
identify a history of irrational discrimination in professional licensing when enacting Title
II,” id. at 1119; and (3) the Title II remedy was not “congruent and proportional,” id. at
1119–25, “in the context of the class of cases implicating disability discrimination in
professional licensing.” Id. at 1120.
Here the right at issue -- a disabled individual’s right to receive an undergraduate
degree -- also is not a fundamental right. Id. at 1123 n.4. And “[t]he disabled are not a
suspect class for equal protection purposes.” Toledo v. Sanchez, 454 F.3d 24, 33 (1st
Cir.2006). The Tenth Circuit commented in Guttman that: “there is a trend of courts
holding that, absent the need to vindicate a fundamental right or protect a suspect class,
Congress may not abrogate state sovereign immunity . . .[And] [t]he bent of these cases
has led at least one commentator to conclude that, when ‘the plaintiff is not alleging a
constitutional violation and the case does not involve a type of discrimination or a right
receiving heightened scrutiny, the state can be sued only if Congress found pervasive
unconstitutional state conduct.’” Id. at 1122-23 (quoting Erwin Chemerinsky, Federal
Jurisdiction 477 (5th ed.)).” However, the court also stated:

6

We pause to note one exception to this trend: discrimination against students
in public education. Several circuit courts have found Title II validly
abrogates state sovereign immunity in this context, even though education
does not involve a fundamental right. See, e.g., Toledo, 454 F.3d at 39-40;
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
490 (4th Cir.2005); Ass'n for Disabled Ams., Inc. v. Florida Int'l Univ., 405
F.3d 954, 959 (11th Cir.2005). In reaching this conclusion, these courts have
been persuaded by (1) the persistent pattern of exclusion and irrational
treatment of disabled students in public education, (2) the gravity of the harm
worked by such discrimination, and (3) the limited nature of the compliance
costs imposed on states. See Toledo, 454 at 39–40. While the Supreme Court
has yet to test the logic of these cases, the cases suggest the exceptionally
well-documented history of irrational discrimination in schools is sufficient
to compensate for the right's limited value in the constitutional scheme. See
id. at 36–39. Discrimination against students in public education is an
exception that proves the rule. 6
Guttman, 669 F.3d at 1123 n.4.
In Ass'n for Disabled Ams., 405 F.3d at 954, one of the cases cited by the Tenth
Circuit, the plaintiffs sued Florida International University, a public university funded by
the State of Florida, alleging that it had violated Title II of the ADA by, among other things,
“failing to provide qualified sign language interpreters, failing to provide adequate
auxiliary aids and services such as effective note takers, and failing to furnish appropriate
aids to its students with disabilities such as physical access to certain programs and
facilities” at the university. Id. at 955. Pointing to the Supreme Court’s reference in Lane
to multiple examples of state sanctioned public school disability discrimination, the
Eleventh Circuit concluded that, “[l]ike the discrimination at issue in Lane, the ‘unequal
treatment of disabled persons in the administration of’ education has a ‘long history, and
has persisted despite several legislative efforts to remedy the problem of disability

6

The court recognizes that this comment is dicta.

7

discrimination.’” Id. at 958 (quoting Lane, 124 S.Ct. at 1993). The circuit court also
determined that Congress responded with a limited remedy – “Title II only prohibits
discrimination by reason of disability” – and it “requires only reasonable modifications that
would not fundamentally alter the nature the nature of the services provided.” Id. (internal
quotation marks omitted). Accordingly, the court held that the “relief available under Title
II of the ADA is congruent and proportional to the injury and the means adopted to remedy
the injury.” Id.
The court agrees with the Eleventh Circuit’s analysis and that of First Circuit in
Toledo and Fourth Circuit in Constantine, 7 regarding the last two prongs of the City of
Boerne test. Because“[d]isability discrimination has clearly been identified in the context
of public education,” Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 554 n.35;
42 U.S.C. § 12101(a)(3), 8 “Title II was ‘responsive to, or designed to prevent,
unconstitutional behavior.’” Guttman, 669 F3d at 1118 (quoting City of Boerne, 521 U.S.
at 532). And, “the remedial measures contained in Title II represent a congruent and
proportional response to this demonstrated history and pattern of unconstitutional disability

7

Toledo and Constantine involved students who, like plaintiff here, had academic issues
allegedly attributable to a state university’s failure to reasonably accommodate their disabilities.
8

Title II provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. According to Congress, this provision was necessary because “discrimination against
individuals with disabilities persists in such critical areas as . . . housing, public accommodations,
education, transportation, communication, recreation, institutionalization, health services, voting,
and access to public services.” Id. § 12101(a)(3) (emphasis added).

8

discrimination.” Constantine, 411 F.3d at 487-88; 9 see Bowers, 475 F.3d at 556 (In case
in which plaintiff claimed he was denied access to a program at a public university because
of his disability, the court “join[ed] several sister circuits in holding that Congress acted
within its Constitutional authority in abrogating sovereign immunity under Title II of the
ADA”). The court therefore concludes that “Title II, as it applies to the class of cases
implicating the right of access to public education, constitutes a valid exercise of Congress’
§ 5 authority to enforce the guarantees of the Fourteenth Amendment.” Toledo, 454 F.3d
at 40. Eleventh Amendment immunity is not a defense to plaintiff’s ADA claim.
Accordingly, defendant’s motion to dismiss [Doc. #10] is DENIED.
IT IS SO ORDERED
Dated this 10th day of February, 2017.

9

As explained by the court in Constantine, “Title II and its implementing regulations limit
the scope of liability in important respects and thus minimize the costs of compliance with the
statute.” Constantine, 411 F.3d at 489.

9