Doe v. Harvard University ( 1994 )

October 12, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 93-2051
93-2234
94-1589
J. DOE,
Plaintiff, Appellant,
v.
HARVARD UNIVERSITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Cyr and Stahl,
Circuit Judges.
J. Doe on brief pro se.
Eileen M. Hagerty, Kern, Hagerty, Roach & Carpenter on brief for
appellee.
Margaret H. Marshall and Kathleen B. Rogers, Office of General
Counsel Harvard University, on brief for appellee.
Per Curiam. Appellant J. Doe, a student suspended from
the Extension School of appellee Harvard University, filed a
complaint in June 1993 alleging that she had been
discriminated against by Harvard because of a learning
disability from which she suffers. Her complaint alleged
violations of the Civil Rights Act, 42 U.S.C. 1983, the
Individuals with Disabilities Act [IDEA], 20 U.S.C. 1400-
1485, the Rehabilitation Act, 29 U.S.C. 701-797b, and the
Americans with Disabilities Act [ADA], 42 U.S.C. 12101-
12213. She sought injunctive relief in the form of an order
compelling Harvard to reinstate her as a student and to
refrain from other alleged acts of discrimination. At the
same time, Doe also filed a motion for a preliminary
injunction seeking similar relief. The district court
dismissed the parts of the complaint predicated on the Civil
Rights Act and the IDEA and granted summary judgment to
Harvard on the remaining counts. The court also denied Doe's
request for a preliminary injunction. Later the district
court denied Doe's motion for reconsideration. Doe appeals
the dismissal of her case, the denial of her motion for
reconsideration and the denial of her request for a
preliminary injunction. She also appeals the refusal by the
district court judge to recuse himself. After having
reviewed carefully the record in this case, the parties'
briefs, and appellant's numerous filings, we affirm.
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Doe's claims pursuant to Section 1983 of the Civil
Rights Act and those pursuant to the IDEA were both properly
dismissed. This court has previously held that Harvard "is
not a public institution, and is not sufficiently intertwined
with the Commonwealth of Massachusetts as to meet the 'state
action' requirement for a 1983 cause of action." Rice v.
President and Fellows of Harvard College, 663 F.2d 336, 337
(1st Cir. 1981), cert. denied, 456 U.S. 928 (1982). The IDEA
"provides federal money to assist state and local agencies in
educating handicapped children, and conditions such funding
upon a State's compliance with extensive goals and
procedures." Board of Education v. Rowley, 458 U.S. 176, 179
(1982) (emphasis added). The IDEA does not apply to adults
like Doe, see 20 U.S.C. 1412(2)(B) (children are those
between three and twenty-one years old), nor does it apply to
private institutions like Harvard, see. e.g., 20 U.S.C.
1415(a) (IDEA seeks to guarantee "free appropriate public
education").
To prevail on a claim under either the Rehabilitation
Act or the ADA Doe must show, inter alia, that she has been
discriminated against because of her disability. See 29
U.S.C. 704(a) ("no otherwise qualified individual . . .
shall, solely by reason of her or his disability, . . . be
subjected to discrimination") (Rehabilitation Act); 42 U.S.C.
12112(a) ("[n]o covered entity shall discriminate against a
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qualified individual with a disability because of the
disability of such individual") (ADA). In its motion for
summary judgment Harvard presented sworn affidavits, with
documentary support, which indicated that it had accommodated
Doe's disability to the full extent recommended by the only
psychologist Doe consulted on this matter. Harvard also
presented evidence that the other acts of alleged
discrimination were taken for legitimate, non-discriminatory
reasons.
In opposition to the motion for summary judgment, Doe
set forth no specific facts as required by Fed. R. Civ. P.
56(e), but only "'conclusory allegations, improbable
inferences, and unsupported speculation'" that she had been
the victim of discrimination. Pagano v. Frank, 983 F.2d 343,
347 (1st Cir. 1993) (quoting Medina-Munoz v. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990)). This is not sufficient
to withstand a properly supported motion for summary
judgment. See also Wynne v. Tufts Univ. School of
Medicine, 976 F.2d 791, 794 (1st Cir. 1992) ("evidence that
'is merely colorable or is not significantly probative'
cannot deter summary judgment") (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986), cert. denied, 113
S.Ct. 1845 (1993).
On appeal, Doe has also raised several other claims. We
need not address some of these because they were not
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presented first to the district court. See, e.g., Kale v.
Combined Ins. Co., 861 F.2d 746, 755 (1st Cir. 1988). In any
event, none appears to have any merit.
The judgment of the district court dismissing
appellant's action is affirmed. The order of the court
denying appellant's request for a preliminary injunction is
affirmed. The denial of appellant's motion for
reconsideration is affirmed. The refusal by the district
court judge to recuse himself is affirmed. Appellant's
request for oral argument is denied. Appellant's request
that this court reconsider its denial of her request for
district court transcripts at court cost is denied.
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