Hariri v. Portland State University et al

Filing 36

OPINION AND ORDER. Defendants' motion 20 for summary judgment is granted in part and denied in part, and further proceedings in connection with the remaining part are deferred. See attached 21-page order. Signed on 5/5/2016 by Magistrate Judge Paul Papak. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MOHAMAD HARIRI,
Plaintiff,
3:15-CV-1076-PK

v.

OPINION AND
ORDER

PORTLAND STATE UNIVERSITY and
GWEN SHUSTERMAN,
Defendants.
PAP AK, Magistrate Judge:
Plaintiff Mohamad Hariri filed this action against defendants Portland State University
("PSU") and PSU professor Gwen Shusterman (in both her official and her individual capacities)
on June 17, 2015. By and through his complaint, Hariri alleges that he was baselessly accused of

Page 1 - OPINION AND ORDER

academic misconduct, in consequence of which he was suspended for one year from attendance
at PSU and received a lower than deserved grade in one of his classes. Arising out of the
foregoing, Hariri appears to allege both defendants' liability under 42 U.S.C. § 1983 for race,
color, and/or national origin discrimination in violation of his rights under Title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000d et seq.) (Hariri's "Claim l"), under Section 1983 for
violation of his Fourteenth Amendment substantive due process rights (Hariri's "Claim 2"), and
under Oregon common law for intentional infliction of emotional distress (Hariri's "Claim 3").
Hariri seeks (i) award of $155,338 in economic damages plus "an additional amount of economic
damages for Plaintiffs [unspecified] out of pocket medical expenses to be determined at trial,"
$100, 000 in non-economic damages for pain, suffering, and emotional distress, and punitive
damages against PSU and Shusterman in her individual capacity in the total amount of$300,000,
(ii) award of pre-judgment interest on all such money damages, (iii) award of his attorney fees
and costs, and (iv) injunctive relief requiring defendants to reverse his suspension, raise his grade
in one of his classes, expunge the accusation of misconduct and the suspension from his
academic record, train all "managers and HR staff' at PSU to undergo counseling and training
regarding illegal discrimination, and update PSU policies regarding "treatment of minorities."
This court has federal-question jurisdiction over Hariri's discrimination and substantive due
process claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental
jurisdiction over Hariri's state-law claim pursuant to 28 U.S.C. § 1367.
Now before the court is defendants' motion (#20) for summary judgment. As discussed
below, shortly after defendants filed their motion, the parties agreed to defer proceedings in
connection with defendants' evidence-based arguments in support of their position that they are

Page 2 - OPINION AND ORDER

entitled to summary judgment in their favor as to all of Hariri's claims, pending the production of
certain documents in discovery, and to proceed at this time only in connection with a limited
number of purely (or nearly purely) legal arguments raised by the parties in support of their
respective positions. Also as discussed below, by and through his memorandum filed in
opposition to defendants' motion, Hariri conceded that his intentional infliction and substantive
due process claims had been improvidently brought, and at oral argument in connection with
defendants' motion, Hariri expressly stipulated to those claims' dismissal with prejudice. Also as
discussed below, Hariri advised the court in the course of oral argument that (despite the mam1er
of its pleading) he intends his discrimination claim to arise under Title VI rather than under
Section 1983, and that he in consequence stipulated to dismissal with prejudice of the
discrimination claim to the extent it could be construed as arising under Section 1983.
I have considered defendants' motion, oral argument on behalf of the parties, and all of
the pleadings and papers on file. For the reasons set forth below, (i) pursuant to Hariri's
stipulations, the motion is granted as to Hariri's substantive due process and intentional infliction
claims, and those claims (Claim 2 and Claim 3) are in consequence dismissed with prejudice,
(ii) also pursuant to Hariri's stipulations, the motion is fmiher granted as to Hariri's
discrimination claim to the extent that claim may be construed as arising under Section 1983, and
that claim (Claim 1) is in consequence dismissed with prejudice to that extent, (iii) the motion is
additionally granted on its merits as to Hariri's discrimination claim to the extent that claim is
alleged against Shusterman, and that claim (Claim 1) is in consequence likewise dismissed with
prejudice to that extent, (iv) the motion is denied on its merits with leave to refile if appropriate
at a later stage of these proceedings to the extent it addresses the immunity of PSU or of

Page 3 - OPINION AND ORDER

Shusterman in her official capacity from suit under the Eleventh Amendment or addresses PSU's
personhood for purposes of Section 1983, (v) the motion is denied as moot with leave to refile if
appropriate at a later stage of these proceedings to the extent it addresses Shusterman's assertion
of qualified immunity in her individual capacity, and (vi) proceedings in connection with the
arguments raised by and through defendants' motion are otherwise deferred until a later stage of
these proceedings as discussed below.

LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56( a). A party taking the position that a material fact either "cannot be or is genuinely disputed"
must support that position either by citation to specific evidence of record "including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing party is unable to produce sufficient
admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c).
The substantive law governing a claim or defense dete1mines whether a fact is material. See

lvforeland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).
Summary judgment is not proper if material factual issues exist for trial. See, e.g.,

Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Warren v. City a/Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S.Ct. 1261 (1996). In evaluating a motion for SUillffiary judgment, the district courts of the

Page 4 - OPINION AND ORDER

United States must draw all reasonable inferences in favor of the nonmoving party, and may
neither make credibility determinations nor perfonn any weighing of the evidence. See, e.g.,

Lytle v. Household Nlfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).

FACTUAL BACKGROUND
I.

The Parties
Plaintiff Hariri is an American of Arab descent, specifically of Lebanese and Syrian

ancestry. Defendant PSU is a public, nonprofit educational institution receiving a portion of its
funding from the State of Oregon and, apparently, a portion of its funding from the federal
government. Defendant Shusterman is a PSU chemistry professor who was Hariri's instructor in
Chemistry 221 in the Fall 2014 quarter, when Hariri attended PSU as a post-baccalaureate
student.

II.

Material Factual History
Although the motion now before the court is one for summary judgment, as noted above

(and as discussed in greater detail below) because the parties stipulated to deferral of proceedings
in connection with the parties' evidence-based arguments in support of their respective positions
on the issues raised by defendants' motion, I do not at this time consider defendants' extensive
evidentiary proffer in analyzing the merits of the arguments addressed herein. The following
recital of the history underlying the parties' dispute should accordingly not be considered as
containing any formal factual findings, but rather is provided solely for purposes of describing
the context within which the parties' legal disagreement will be analyzed.
Hariri alleges that, at all material times, he was either a current or a former student of

Page 5 - OPINION AND ORDER

PSU. Defendants offer evidence, which Hariri does not appear to dispute, tending to establish
more specifically as follows. Hariri emolled as a full-time undergraduate student at PSU in Fall
2009, prior to which he spent two academic years as an undergraduate studying at a community
college in Oregon. Although Hariri received failing grades, only marginally passing grades, and
marks indicating the absence of any basis for evaluating academic performance in some of his
coursework, he ultimately graduated from PSU with a bachelor's degree in general science in
2013. After graduation from PSU, Hariri applied unsuccessfully to dental schools, during the
course of which process he learned that the presence of failing grades on his college transcript
could negatively impact his applications. In consequence, beginning in 2014 Hariri began
petitioning PSU for the right both to expunge from his transcript courses in which he completed
none of the work and to retake classes in which he received failing or nearly failing grades. PSU
denied several such petitions, but in September 2014 eventually granted one such petition to
retake four courses in which he had previously performed poorly. In Fall 2014, Hariri enrolled at
PSU as a post-baccalaureate student for the purpose of retaking those four courses.
As Hariri alleges, and as defendants' proffer tends to establish, among the courses Hariri
retook in Fall 2014 was General Chemistry I, also known as Chemistry 221, which was taught by
Professor Shusterman. According to defendants' proffer, over 300 stndents were emolled in
Chemistry 221 in that quarter, with the consequence that the students were divided into groups of
approximately 20, each of which was assigned a "learning assistant" or "LA." According to
defendants' proffer, the learning assistant assigned to Hariri's section was Dillon Willis. Also
according to defendants' proffer, it was Shustennan's independently promulgated written policy
to require students to bring photographic identification documents to the final exam in Chemistry
Page 6 - OPINION AND ORDER

221, due to the large number ofregistered students. (By contrast, Hariri alleges that it was not
Shusterman's but rather PSU's policy in general to require students to bring proof of
identification to final exams.) Also according to defendants' proffer, Chemistry 221 students
were under notice that the final exam could be rescheduled for students who had a conflict with
the regular schedule.
As Hariri alleges, and as defendants' proffer tends to establish, the final exam for
Chemistry 221 was given on December 8, 2014. Hariri alleges that he took the exam with all the
other students on December 8, 2014. He further alleges that during the course of taking the
exam, he witnessed Shusterman have a physical altercation with another student of Arab origin,
accusing the student of cheating and personally effecting his violent ejection from the exam
room. He further alleges that when he attempted to hand in his exam, the learning assistant
would not accept the exam because Hariri had forgotten to bring proof of identification. He
further alleges that he did not have time to explain the situation to Shusterman, because his father
was in hospital and he had to leave immediately.
By contrast, defendants offer Shusterman's and Willis' testimony tending to establish that
toward the end of the exam period a person of Asian rather than of Arab origin attempted to hand
in to Willis an exam bearing Hariri's name, that Willis immediately recognized that the person
attempting to hand in the exam was not Hariri, that Willis asked to see the person's proof of
identification and received the response that the person did not have it with him, that Willis
asked the student to follow him to where Shustennan was sitting to discuss the matter with her,
and that when Willis looked to see if the person was following him as requested, the person had
disappeared. In support of their position that Shusterman's and Willis' testimony is accurate,

Page 7 - OPINION AND ORDER

defendants additionally offer into evidence numerous samples of Hariri's handwriting together
with the handwritten exam of December 8, 2014, and the opinion testimony ofa handwriting
expert that the person who wrote the exam of December 8, 2014, is not the same person who
produced the samples ofHariri's handwriting.
Hariri alleges that Shusterman emailed him that same day to advise him that she would be
giving him a grade of "O" on the exam. The parties appear to agree that Shusterman ultimately
did give Hariri a "O" grade on the exam, but that he nevertheless passed the course with a final
grade of "D," due to having performed well in other coursework prior to taking the final exam.
Defendants proffer evidence tending to establish that Shusterman emailed Hariri to advise
him of Willis' report that another person had taken Hariri's exam in Hariri's stead. According to
the proffered documentary evidence of email communications between Hariri and Schusterman
on December 8, 2014, Hariri claimed to have been the person who wrote the exam bearing his
name earlier that same day, and that he had needed to leave the exam room immediately after
finishing the exam to pick up his father from hospital following surgery, and that he had had his
wallet (impliedly containing proof of his identity) in his car where he could "have went ... and
grabbed it [sic]" to show it to Willis had he had time to do so. The proffered evidence tends to
establish that Hariri threatened twice to sue Willis over the report, and that Hariri attached as an
exhibit to one of his email messages to Shusterman a copy of his lawyer's business card as an
indication that he would follow through on the threat. The proffered evidence further tends to
establish that Hariri expressed himself willing to come to Shusterman's office and retake the
exam immediately, in Shusterman's presence. The proffered evidence further tends to establish
that Shusterman told Hariri that he would be permitted to retake the exam the following day, on
Page 8 - OPINION AND ORDER

December 9, 2014, in her presence.
As Hariri alleges and as defendants' proffer tends to establish, Hariri took a different
version of the Chemistry 221 final exam on December 9, 2014, in Shusterman's presence.
According to defendants' proffer, Shusterman reported the foredescribed events in their
entirety to PSU Senior Student Conduct Officer Domanic Thomas; Hariri alleges that he
personally initiated efforts to "resolve" the situation through Thomas' offices. According to
defendants' proffer, Thomas performed a preliminary investigation and concluded that there was
enough evidence of Hariri's misconduct to warrant a student conduct hearing. It appears that
Thomas notified Hariri that a hearing would be held on December 19, 2014, with Thomas
himself serving as the hearing officer, and that Thomas arranged to meet with Hariri three days
prior to the hearing, on December 16, 2014, to discuss the allegations against him.
On December 16, 2014, according to defendants' proffer, Thomas met with Hariri and
discussed with him the evidence HaTiri believed might tend to establish that he had been the
person who wrote the exam of December 8, 2014, bearing his name. According to defendants'
proffer,

Hm~ri

told Thomas that his cell phone records and public transportation surveillance

footage recording his commute to campus via streetcar could be expected to support his story,
but it appears that Hariri was unsuccessful in obtaining any such evidence. 1 It does not appear
that Hariri identified to Thomas with particularity any fellow students who might have witnessed
him sitting for the exam on December 8, 2014.
1

Neither Hariri's allegations nor defendants' evidentiary proffer have any tendency to
explain why Hariri might have believed surveillance footage would show him riding the streetcar
to the PSU campus notwithstanding the assertion defendants' proffer tends to establish he made
to Shusterman over email on December 8, 2014, that his wallet was in his car apparently easily
accessible from the exam room at the time he took the exam.
Page 9 - OPlNION AND ORDER

According to defendants' proffer, on December 19, 2014, Hariri did not attend the hearing
before Officer Thomas, but rather instead emailed Thomas, Shusterman, PSU general counsel,
and other PSU officials through his then-attorney, threatening to bring suit against Shusterman
and demanding both an immediate dismissal of the charges against him and immediate award of
an "A" grade in Chemistry 221. Defendants' proffer tends to establish that Hariri's counsel
asserted to the PSU officials that on December 8, 2014, proof ofHariri's identity was "not
available to Mr. Hariri because his license was [at that timeJ suspended and confiscated. "2
Also according to defendants' proffer, on December 23, 2014, PSU assistant general
counsel Krista Stearns responded via email to Hariri's counsel's message of December 19, 2014,
requesting confirmation that Hariri did not intend to attend a hearing in connection with the
charges against him, and that he preferred that PSU reach a final decision on the charges without
consideration of any additional evidence Hariri might choose to offer them. By and through his
counsel, according to defendants' proffer, later that same day Hariri responded in the affomative
that he did not intend to appear at any such hearing or to offer fmther evidence prior to a final
disposition of the charges against him.
On December 30, 2014, according to defendants' proffer, Thomas formally concluded that
a person other than Hariri wrote the December 8, 2014, exam bearing Hariri's name. In
consequence, PSU suspended Hariri for one year for cheating, and left Hariri's "D" grade in

2

Neither Hariri's allegations nor defendants' evidentiary proffer have any tendency to
explain why Hariri might have asserted, as defendants' evidentiary proffer tends to establish that
he did, that he could have retrieved proof of his identity from his car if he had had time to do so
after completing the exam on December 8, 2014, if in fact no proof of his identity was available
to him at that time, as defendants' proffer tends to establish his then-attorney asserted to the PSU
officials.
Page 10 - OPINION AND ORDER

Chemistry 221 undisturbed. On December 30, 2014, PSU advised Hariri of his right to appeal its
decision, which Hari1i did on January 4, 2015. On Janumy 20, 2015, PSU Interim Vice President
of Enrollment Management and Student Affairs Dan Fortmiller upheld the decision of December
30, 2014.
According to defendants' proffer, beginning in or around autumn of 2014, Hariri applied
to several dental schools. According to defendants' proffer, alld as Hariri alleges, all denied his
applications. According to defendants' proffer, some of the rejections cmne before any of the
schools saw any trallscript with any grades from Fall 2009 or any other reference to such grades;
all other such rejections came at a time when Hariri had informed the dental school by letter that
he had retaken several courses in Fall 2009 and received "A" grades in all such retaken courses,
but that there had been a "minor misunderstanding" in one of them that would soon "be
resolved," following which he would send fill updated transcript reflecting the "A" grades in the
Fall 2009 courses.
Hariri alleges, and defendants appear to concede, that PSU receives at least some federal
funding.

III.

Material Procedural History
Hariri filed this action against PSU and Shustennan (in both her official and her

individual capacities) on June 17, 2015, alleging both defendants' liability for race/color/national
origin discrimination, violation of his substantive due process rights, and intentional infliction of
emotional distress. On January 28, 2016, Hariri moved to compel PSU to produce documents in
discove1y. On March I, 2016, prior to disposition ofHmiri's motion to compel, defendants filed
the motion for summary judgment that is now before the court.
Page 11 - OPINION AND ORDER

On March 22, 2016, Hariri moved for extension of time to respond to defendants'
dispositive motion, arguing that he could not adequately respond to defendants' evidence-based
arguments prior to PSU's production of the documents within the scope of his then-pending
motion to compel. I presided over a telephonic hearing and scheduling conference in connection
with Hariri's pending motions on March 31, 2016, in the course of which the parties advised the
court that they believed it would be judicially efficient for the comt to determine the merits of the
purely legal (or nearly purely legal) arguments raised by defendants' i:!lspositive motion without
first awaiting completion of discovery among the pmties. In light of the pmties' advice to the
court, I directed the parties to proceed only in connection with those arguments to which Hariri
was able to respond prior to completion of discovery, deferred proceedings in connection with
defendants' evidence-based arguments until after resolution of the arguments to which Hariri was
able to respond, and denied Hariri's motion to compel and motion for extension of time as moot,
with leave to refile if appropriate at a later stage of these proceedings.
On April 8, 2016, Hariri responded to defendants' dispositive motion. By and through his
opposition memorandum, Hariri indicated his intention to voluntarily withdraw his intentional
infliction of emotional distress claim, expressly stipulating to its dismissal, and conceded that his
substantive due process claim had been improvidently brought, indicating his intention at some
later stage of these proceedings to seek leave to amend his pleading to state in its stead a
procedural due process claim. Hariri indicated that, in connection with his discrimination claim,
he would respond only to defendants' arguments that PSU and Shusterman in her official capacity
are immune from suit under the Eleventh Amendment, that PSU is not liable to suit under
Section 1983 as it is not a "person" for purposes of the statute, and that Shustennan in her
Page 12 - OPINION AND ORDER

individual capacity enjoys qualified immunity from suit.
Oral argument was held in connection with defendants' dispositive motion on April 25,
2016. At oral argument, Hariri confomed by and through his counsel that he stipulated to
dismissal with prejudice of both his intentional infliction claim and his substantive due process
claim, and further confirmed his intention to move at some future time for leave to amend his
pleading to state a procedural due process claim. 3 In addition, Hariri clarified for the first time in
these proceedings, by and through his counsel, that his discrimination claim was intended to arise
under Title VI only, and he stipulated to dismissal with prejudice of his discrimination claim to
the extent it could be constrned as pled under Section 1983.
For their part, defendants conceded at oral argument that (as will be discussed in greater
detail below) their arguments regarding Eleventh Amendment immunity from suit and PSU's
personhood for Section 1983 purposes were inapposite following Hariri's clarification that his
discrimination claim arises only under Title VI. Defendants nevertheless maintained that
Shuste1man is entitled to qualified immunity from suit in her individual capacity in connection
with Hariri's discrimination claim and asserted the partially novel argument that Hariri did not
adequately allege his own standing to bring a claim under Title VI. In response to my inquiry as
to whether a Title VI claim could lie against an individual defendant in that person's individual
capacity, defense counsel responded in the negative, but neve1theless appeared to reserve the
right to asse1t qualified immunity in the alternative to the argument that a lawsuit against an
individual capacity defendant is not cognizable under Title VI. In response, Hariri denied that
3

Hariri further confirmed by and through his counsel that in moving for leave to amend
his pleading, he would address by and through his supporting memorandum both the timeliness
of his motion and the question of potential futility of the amendment at issue.
Page 13 - OPINION AND ORDER

Shusterman could be entitled to qualified immunity in connection with the alleged deprivation of
his right to freedom from discrimination and asserted that his standing to bdng a Title VI claim
could fairly be inferred from the allegations of his complaint.

ANALYSIS
I.

Hariri's Substantive Due Process and Intentional Infliction of Emotional Distress
Claims (Claim 2, Claim 3); Hariri's Discrimination Claim (Claim l)to the Extent
Construable as Arising Under 42 U.S.C. § 1983
Pursuant to Hariri's stipulations (discussed above), his substantive due process claim

(Claim 2) in its entirety, his intentional infliction of emotional distress claim (Claim 3) in its
entirety, and his discrimination claim (Claim l) to the extent that it could be construed as arising
under Section 1983 rather than Title VI are dismissed with prejudice.

II.

Hariri's Title VI Discrimination Claim (Claim 1)
"Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, provides in pertinent part that

'no person in the United States shall, on the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial aid.'" Fobbs v. Holy Cross Health Sys. Corp., 29
F.3d 1439, 1446 (9th Cir. 1994), quoting 42 U.S.C. § 2000d ..
To state a claim for damages under 42 U.S. C. § 2000d, et seq., a plaintiff must
allege that (1) the entity involved is engaging in racial discrimination; and (2) the
entity involved is receiving federal financial assistance. Wrenn v. Kansas, 561 F.
Supp. 1216, 1221 (D.C. Kan. 1983) (citing Jackson v. Conway, 476 F. Supp. 896,
903 (E.D. Mo. 1979)). Although the plaintiff must prove intent at trial, it need not
be pled in the complaint. Wrenn, 561 F. Supp. at 1221. Compare Jackson, 476 F.
Supp. at 903 (no proof of intent is required if plaintiff seeks only injunctive
relief).
There is no requirement that plaintiff plead that he was an intended beneficiary of
the federally funded program in which defendants are alleged to have participated.

Page 14- OPINION AND ORDER

Wrenn, 561 F. Supp. at 1221. Cf Simpson v. Reynolds Metals Co., Inc., 629 F.2d
1226, 1234-35 (7th Cir. 1980) (In reviewing complaint under§ 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, which is modeled after and enforced
in the same manner as 42 U.S.C. § 2000(d), court should not define program, and
therefore identify its intended beneficiaries, in a "very naiTow fashion."); Byers v.
Rockford Mass Transit Dist., 635 F. Supp. 1387, 1390 (N.D. Ill. 1986) ("As long
as some federal funding is alleged in § 504 actions .. ., the program specificity
issue is more properly the subject of a summary judgment motion.").

Id. at 1447 (internal modifications omitted).
A.

Defendants' Challenge to Hariri's Standing to Bring a Title VI
Discrimination Claim

As noted above, at oral argument defendants challenged the adequacy ofHariri's pleading
to establish that Hariri could be an intended beneficiary of the federal funding received by PSU.
While Hariri took the position at oral argument that his status as an intended beneficiary could be
inferred from his allegation that he was a student enrolled at PSU (and from the implicit
presumption that any federal funding received by PSU was necessarily intended to benefit
participants in PSU's educational programs), in the Ninth Circuit Title VI plaintiffs are not
required to plead their status as intended beneficiaries, but rather must establish that status
through proof at trial or at summary judgment. See Fobbs, 29 F.3d at 1447. Moreover, although
defendants' motion is for summary judgment, the parties have agreed not to address evidencebased argument until a later stage of these proceedings, and defendants' challenge to Hariri's
standing was not within the scope of the issues the pmties agreed to address at this time. I
therefore decline to enter summary judgment in defendants' favor on Hmiri's discrimination
claim on the asserted ground that he has not adequately pied his status as an intended beneficiary
of PSU's federal funding. This issue is more properly addressed at a later stage of these
proceedings, when both parties have had an oppo1tunity to present material evidence and

Page 15 - OPINION AND ORDER

argument.
B.

Hariri's Title VI Discrimination Claim to the Extent Alleged Against
Shusterman

The Ninth Circuit has observed that "§ 2000d ... does not provide for monetary relief
against individual defendants," Braunstein v. Ariz. DOT, 683 F .3d 1177, 1183 (9th Cir. 2012),
and all courts to have addressed the question have found that there is no private right of action
whatsoever under Title VI against individual employees or agents of entities receiving federal
funding, including actions for purely injunctive relief, see, e.g., Shatz v. City of Plantation, 344
F.3d 1161, 1169-1171 (11th Cir. 2003), Aguirre v. San Leandro Police Dep't, Case No. 10-04364
CW, 2011 U.S. Dist. LEXIS 17401, *7-8 (N.D. Cal. Feb. 22, 2011), Johnson v. Telew, Case No.
06c6297-AA, 2007 U.S. Dist. LEXIS 8621, *7 (D. Or. Feb. 2, 2007), Clemes v. Del Norte County

Unified Sch. Dist., Case No. C-93-1912 MHP (ENE), 1994 U.S. Dist. LEXIS 8625, *9-17 (N.D.
Cal. Jun. 21, 1994), see also Miller v. lvfaxwell's Int'l, Inc., 991F.2d583, 587 (9th Cir. 1993).
This conclusion follows from the plain language of the provision, which limits potential liability
to entities that receive federal funds without extending liability to agents or employees of such
entities, who do not receive funding or compensation directly from the federal government, see

Shatz, 344 F .3d at 1169-1170, Aguirre, 2011 U.S. Dist. LEXIS 17401 at *7-8, Johnson, 2007
U.S. Dist. LEXIS 8621 at *7, Clemes, 1994 U.S. Dist. LEXIS 8625 *9-14, from the scope of
Congressional authority under the Spending Clause of the United States Constitution to restrict
the conduct of direct recipients of federal funds, which does not extend to the conduct of persons
not receiving such funds directly, see Shatz, 344 F.3d at 1170-1171, see also Davis v. lvfonroe

County Bd of Educ., 526 U.S. 629, 640-641 (1999) (applying the same reasoning in the Title IX

Page 16 - OPINION AND ORDER

context), and from the scope of the enforcement power the government enjoys under Title VI,
which extends only to funding recipients themselves, see Shatz, 344 F.3d at 1170. 4 Because as a
matter of law Hariri cannot adduce evidence which could establish any basis for finding
Shusterman liable in her individual capacity in connection with his Title VI discrimination claim,
the discrimination claim (Claim 1) is dismissed with prejudice to the extent alleged against
Shustennan in her individual capacity.
The case law discussed above regarding Title VI lawsuits against individual employees or
agents of recipients of federal funding makes no distinction between such lawsuits against such
employees or agents in their individual versus their official capacities, implying that there can be
no liability against employees or agents of recipients of federal fimding in either capacity. The
Seventh Circuit has expressly considered the distinction, and has determined that Title VI claims
do not lie against employees or agents of recipients of federal fimding, without regard to whether
such persons are named in their individual or official capacities. See Smith v. Jvfetropolitan Sch.
Dist. Perry Twp., 128 F.3d 1014, 1020-1021 (7th Cir. 1997). I agree with the Smith court and

with the implied reasoning of the case law discussed above suggesting that, because Shusterman
does not receive funding directly from the federal government even in her official capacity, no
grounds exist as a matter of law for finding her liable in her official capacity under Title VI.
Hariri's Title VI discrimination claim (Claim 1) is therefore likewise dismissed with prejudice to
the extent alleged against Shusterman in her official capacity.

4

Moreover, here the injunctive relief Hariri seeks is not cognizable as to Shusterman in
her individual capacity: in her individual capacity, Shusterman lacks any capacity to reverse
Hariri's suspension, to expunge charges against him from his official academic record, or even to
modify his grades.
Page 17 - OPINION AND ORDER

C.

Shusterman 's Assertion of Qualified Immunity

In light of the dismissal with prejudice of each ofHariri's claims against Shusterman,
Shusterman's assertion of qualified immunity in her individual capacity is moot. Defendants'
motion is therefore denied as moot to the extent premised on Shusterman's qualified immunity
from suit.

D.

Eleventh Amendment Immunity and PSU's Personhood

It is well established that a state government or governmental body cannot be sued

without its consent, pursuant to the Eleventh Amendment to the United States Constitution:
That a State may not be sued without its consent is a fundamental rule of
jurisprudence having so important a bearing upon the construction of the
Constitution of the United States that it has become established by repeated
decisions of this court that the entire judicial power granted by the Constitution
does not embrace authority to entertain a suit brought by private parties against a
State without consent given: not one brought by citizens of another State, or by
citizens or subjects of a foreign State, because of the Eleventh Amendment; and
not even one brought by its own citizens, because of the fundamental rule of
which the Amendment is but an exemplification.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984) (emphasis original),
quoting Exparte State a/New York, 256 U.S. 490, 497 (1921); see also, e.g., id. at 99, n.8 ("The

limitation deprives federal courts of any jurisdiction to entertain such claims .... "); Quillin v.
Oregon, 127 F.3d 1136, 1138 (9th Cir. 1997) ("in the absence ofa waiver by Oregon of its

Eleventh Amendment immunity, federal courts lack jurisdiction to review" claims against it).
Eleventh Amendment immunity generally extends to suits brought by individuals against state
agencies and state officials. See, e.g., Seminole Tribe v. Fla., 517 U.S. 44, 54 (1996). The
applicability of such immunity constitutes a question of subject matter jurisdiction. See, e.g.,
1\!fcCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988).

Page 18 - OPINION AND ORDER

An exception to Eleventh Amendment immunity for suit provides that an individual's suit

may go forward against a state official in federal court where the plaintiff seeks only
"prospective, but not compensatory or other retrospective relief' in connection with a challenge
to "the constitutionality of official conduct enforcing state law." Puerto Rico Aqueduct & Sewer
Auth. v. i\!Jetcalf & Eddy, Inc., 506 U.S. 139, 145 (1993); see also E'C parte Young, 209 U.S. 123

(1908). This exception, known as the "Ex parte Young doctrine," "is narrow: It applies only to
prospective relief, [and] does not permit judgments against state officers declaring that they
violated federal law in the past. ... " Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 146
(citations omitted).
It is relatively well established that states may properly assert Eleventh Amendment

immunity in connection with Section 1983 claims, and that state officials may do so in
connection with Section 1983 claims for money damages. See Quern v. Jordan, 440 U.S. 332,
342-345 (1979), Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-102 (1984);
Braunstein v. Ariz. DOT, 683 F.3d 1177, 1188 (9th Cir. 2012); Peters v. Lieuallen, 693 F.2d 966,

970 (9th Cir. 1982).
However, it is also well established that Congress has in fact abrogated Eleventh
Amendment immunity for purposes of claims for damages arising under Title VI, applicable to
bodies receiving funding from federal sources. See 42 U.S.C. sec 2000d-7(a)(l); see also
Braunstein, 683 F.3d at 1189. In consequence, defendants were correct to concede that their

arguments premised on the Eleventh Amendment immunity from suit of PSU and of Shusterman
in her official capacity are inapposite to Hariri's discrimination claim, which arises under title VI
rather than under Section 1983.
Page 19 - OPINION AND ORDER

The same is true of defendants' arguments regarding PSU's status as a "person." The
United States Supreme Court has held that states are not "persons" for purposes of Section 1983,
and in consequence may not be found liable under Section 1983. Will v. J'vfich. Dep't a/State
Police, 491 U.S. 58, 63-71 (1989). Moreover, it appears likely that PSU would be deemed an

"arm" of the State of Oregon for purposes of determining whether PSU could be a person for
Section 1983 purposes. See, e.g., Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032,
1035 (9th Cir. 1999) (The University of Oregon is "an arm of the state" for Eleventh Amendment
purposes because it is a state institution subject to the jurisdiction of Oregon's Board of Higher
Education performing the govermnental function of providing education services to state
citizens); Hagel v. Portland State Univ., 237 Fed. Appx. 146, 147-148 (9th Cir. 2007) (PSU is an
"arm of the state" for Eleventh Amendment purposes, for the same reasons) (unpublished
disposition). However, there is no requirement that a Title VI defendant be cognizable as a
"person," and (as defendants conceded at oral argument) defendants' arguments regarding PSU's
personhood are therefore inapposite to Hariri's discrimination claim.
For the foregoing reasons, defendants' motion is denied with leave to refile if
approporiate at a later stage of these proceedings to the extent premised on the Eleventh
Amendment immunity from suit of PSU or of Shusterman in her official capacity, and to the
extent premised on PSU's status as a "person."

III.

Deferred Proceedings
Proceedings in connection with all other arguments raised by defendants' motion are

deferred. By and through a separate order, a telephonic status conference will be set for the
purpose of scheduling further briefing and a hearing in connection with those arguments.

Page 20 - OPINION AND ORDER

CONCLUSION
For the reasons set fo1th above, defendants' motion (#20) for summary judgment is
granted in pait and denied in pait, and further proceedings in connection with the remaining pait
are deferred, as follows: (i) the motion is granted as to Hariri's substantive due process and
intentional infliction claims, and those claims are in consequence dismissed with prejudice,
(ii) the motion is granted as to Hariri's discrimination claim to the extent it may be construed as
arising under Section 1983 and to the extent it is alleged against Shusterman in any capacity, and
that claim is in consequence dismissed with prej udice to both those extents, (iii) the motion is
denied on its merits with leave to refile if appropriate at a later stage of these proceedings to the
extent it addresses the immunity of PSU or of Shusterman in her official capacity from suit under
the Eleventh Amendment and to the extent it addresses PSU's personhood for purposes of
Section 1983, (iv) the motion is denied as moot with leave to refile if appropriate at a later stage
of these proceedings to the extent it addresses Shusterman's asse1 ion of qualified immunity in
t
her individual capacity, and (v) proceedings in connection with the ai·guments raised by and
through defendants' motion ai·e otherwise defened as discussed above.

Dated this 5th day of May, 20 16.

onorable Paul Papak
United States Magistrate Judge

Page 21 - OPINION AND ORDER