Douglas Lee Rollins, III v. The Board of Trustees of the University of Alabama , 647 F. App'x 924 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14882
________________________
D.C. Docket No. 2:12-cv-02458-AKK
DOUGLAS LEE ROLLINS, III,
Plaintiff-Appellant,
versus
THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF ALABAMA &
MICHAEL S. REDDY, DMD, Dean of
the School of Dentistry, in his official and
individual capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 11, 2016)
Before ED CARNES, Chief Judge, JILL PRYOR, Circuit Judge, and REEVES,*
District Judge.
* Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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REEVES, District Judge:
Appellant Douglas Lee Rollins was dismissed from the University of
Alabama at Birmingham’s School of Dentistry for poor academic performance
after completing two semesters. Rollins, a white male, brought suit against the
university’s Board of Trustees alleging race and gender discrimination. He also
sought declaratory and injunctive relief against the Board of Trustees and the
School of Dentistry’s Dean, Dr. Michael S. Reddy. Rollins now appeals the
district court’s order denying his motion for summary judgment and granting
summary judgment for the defendants. We affirm the district court’s decision.
I.
In July of 2011, Rollins began classes at the University of Alabama at
Birmingham’s (UAB) School of Dentistry. Rollins failed a three-hour course in
Dental Anesthesia during his second semester. Under the dental school’s official
academic guidelines, “[a]ny failing course grade must be remediated.” On June 4,
2012, Rollins met with Dr. Patrick Louis, the Dental Anesthesia course director, to
discuss the possibility of either raising his grade or remediating the course. Dr.
Louis advised Rollins that the school’s Academic Performance Committee
(“APC”) would determine whether he was eligible for remediation. Dr. Louis also
suggested that Rollins might be required to submit an essay on an area that he
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struggled to grasp during the class. A week later, Rollins submitted a research
paper entitled “Clinical Complications of Dental Anesthesia.”
On June 20, 2012, the APC met to discuss the School of Dentistry students’
2012 grades. Under the academic guidelines, the APC could recommend that a
student repeat a year of course work or be dismissed from the dental school for
“any failing grade” or “continued poor/marginal academic performance.” Before
the June 20th meeting, Dr. Kenneth Tilashalski, the School of Dentistry’s
Associate Dean, sent information to APC members regarding the academic
performance of students who would come before the group for review. Rollins
takes issue with Dr. Tilashalski’s representations to the committee members in an
e-mail dated June 8, 2012. Dr. Tilashalski prefaced the e-mail by explaining that
the information was incomplete “as grades [were] not due until next Friday.”
Regarding Rollins, Dr. Tilashalski wrote:
• Failed Dental Anesthesia. I cannot recall the last time that a
student has failed this course (if ever). . . .
• Failed Gross Anatomy with a 53.3% average but successfully
passed the retest. The course syllabus in Gross Anatomy indicates
that a retest will only be offered to students that have final course
grades between 60-69%. I have emailed the course director for
clarification of why Lee was even offered the retest – it seems like
he should have failed Gross Anatomy as well.
• After the fall term (and prior to the failure of [Cardiovascular-
Renal]), Lee was 51/56 students.
• He has received multiple marginal [grades] (lots of “C” grades)
with the grades reported so far for the spring 2012 term.
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• Failed individual exams in Fundamentals. This is particular[ly]
troublesome. Lee was allowed to take the Fundamentals courses as
an Oral Biology student (he was in the Oral Biology program prior
to getting into dental school – he did not receive his masters degree
due to GPA below 3.0). He received “C” grades in both
Fundamental courses as an Oral Biology master student. So this
was the 2nd time he took the Fundamentals courses and he still
was not able to pass all of the exams, . . . although he was able to
pull his grades up and ultimately received “B” grades for
Fundamentals I & II.
Dr. Tilashalski received an e-mail on the same date from Dr. Steven Zehren,
the course director for Gross Anatomy, regarding the retest. The course syllabus
provided that, “[s]tudents who earn a grade of 60-69 in the course will be allowed
to take a competency exam. . . . If a student receives a grade of 70 or higher on the
competency exam, he/she will then receive the lowest possible passing grade for
the course (ie, 70=C).” Dr. Zehren explained in his e-mail that, in 2009, he
allowed seven students who fell below the sixty percent cut-off to take the retest.
In 2012, Rollins completed the course with a fifty-three percent average, the only
student with a grade below a sixty percent. According to Dr. Zehren, Rollins was
allowed to retest based on the 2009 precedent and because there would be little to
no opportunity for him to make-up the class. After receiving Dr. Zehren’s e-mail,
Dr. Tilashalski promptly forwarded it to the APC committee members.
During the June 20th meeting, the APC held an open discussion regarding the
students under review. Thereafter, the APC voted to dismiss Rollins and an
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African-American female student from the same class. The APC also voted to
allow a white female student to repeat her first year of dental school. Comparator
One (the African-American female who was dismissed by the APC) ranked last in
her class at the end of the spring semester. During that semester, she received
scores of one B, six Cs, and one pass. The student also received a score of F in a
six-hour course (Cardiovascular-Renal), resulting in a 1.95 grade point average
(“GPA”) for the semester and a cumulative GPA of 2.38.
Comparator Two (the white female who was allowed to repeat the year)
ranked second to last in her class. This student also failed Cardiovascular-Renal in
her second semester while receiving scores of three Bs, four Cs, and one pass,
resulting in a semester GPA of 2.10 and a cumulative GPA of 2.55. Comparators
One and Two were allowed to take the comprehensive retest offered in
Cardiovascular-Renal; however, both failed the retest.
During his first semester, Rollins received scores of two As, seven Bs, and
two passes, resulting in a 3.17 GPA. He ranked fifty-first out of the fifty-six first
year dental students that semester. At the end of the second semester, Rollins
received scores of four Bs, three Cs, one F, and one pass, resulting in a 2.34 GPA
for the semester and a 2.72 cumulative GPA. At the end of the second semester,
Rollins ranked third to last in his class.
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Dr. Tilashalski informed Rollins by letter dated June 21, 2012, that the APC
had voted to dismiss him from the dental school. Dr. Tilashalski also met with
Rollins prior to the APC’s meeting and explained the appeals process. The dental
school’s academic guidelines provide for two types of appeals: a grade appeal and
an academic status appeal. For a grade appeal, the guidelines require that the
student first seek clarification from the course director. If discussions with the
course director did not resolve the appeal, the student was required to submit a
written appeal to the chair of the department in which the contested grade was
given. If the chair of the department did not grant the appeal, the student could
appeal to the Associate Dean.
On June 26, 2012, Rollins notified Dr. Louis that he was appealing his grade
in Dental Anesthesia. Rollins claimed in his notice that Dr. Louis’ grading was
inconsistent and arbitrary. He also attached his “Clinical Complications of Dental
Anesthesia” paper. Rollins made the same claim in an e-mail to Dr. Peter Waite,
the chair of Dr. Louis’ department. Four days later, Dr. Louis denied Rollins’
appeal and his request to remediate. Dr. Waite also advised Rollins that same day
that he was denying his grade appeal. Rollins did not appeal his failing grade in
Dental Anesthesia to Dr. Tilashalski (i.e., the last step of the grade appeal process
under the academic guidelines).
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Under the academic guidelines, a student may contest dismissal from the
dental school by sending a written academic status appeal to the Chair of the
Faculty Council. The Faculty Council must then conduct a hearing following
certain procedures set forth in the guidelines. As required by the guidelines,
Rollins sent a written appeal of his dismissal to Dr. John Ruby, Chair of the
Faculty Council. The council then held a hearing during which Dr. Tilashalski
presented the APC’s reasons for dismissing Rollins and Comparator One and for
requiring Comparator Two to repeat her first year of dental school.
Several council members contributed to the APC’s list of reasons for
dismissing Rollins during the discussion that followed. Dr. Ruby told the
committee that Rollins and Comparator One, but not Comparator Two, failed an
open-book essay exam in his Cariology class. According to Dr. Louis, even
though he curved the grades in Dental Anesthesia, Rollins “still didn’t meet the
criteria.” In fact, “he wasn’t even on the borderline.” Dr. Louis added that Rollins
acted dishonestly by stating that he requested the paper as remediation. Next, Dr.
Tilashalski reminded the council members that Rollins failed all of the assessments
given in Gross Anatomy and that he only passed the course because of the retest.
Dr. Tilashalski summarized his position by stating that, “[Rollins] failed dental
anesthesia, should have failed gross anatomy, and . . . performed poorly on a
course he already had the previous year.”
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The Faculty Council also discussed its concerns with Rollins’ academic
integrity. Drs. Waite and Tilashalski contended that another person likely wrote
Rollins’ academic appeal. Dr. Tilashalski also advised the council that he had
analyzed Rollins’ paper for Dr. Louis using plagiarism detection software.
According to Dr. Tilashalski, his analysis indicated that Rollins had copied large
portions of the paper from sources cited in his bibliography.
Toward the end of their discussion, the council heard individual testimony
from Comparator One, Comparator Two, and Rollins. Further, each individual
called supporting witnesses. After the students presented their cases and were
excused from the meeting, council members expressed their opinions regarding
each student. Ultimately, the Faculty Council voted unanimously by secret ballot
to uphold the APC’s decision to dismiss Rollins and Comparator One but to allow
Comparator Two to repeat her first year of dental school.
II.
On July 11, 2012, Rollins filed this action against UAB’s Board of Trustees
and Dean Reddy in Alabama’s Jefferson Circuit Court. Rollins’ original
Complaint sought declaratory and injunctive relief allowing him to either repeat his
first year of dental school or remediate Dental Anesthesia and start his second year
of dental school. Rollins also requested damages from the Board of Trustees for
sex-based discrimination in violation of Title IX of the Education Amendments of
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1972, 20 U.S.C. § 1681, et seq. After the defendants removed the case to the
United States District Court for the Northern District of Alabama, Rollins amended
his Complaint to include claims for race-based discrimination in violation of Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.
Nearly three months after the discovery deadline, Rollins filed a motion
captioned “Plaintiff’s Motion in the Spirit of Rule 56(d)” in which he argued that
the court should compel the defendants to produce all the Dental Anesthesia exams
from the spring of 2012. According to Rollins, Rule 56(d) of the Federal Rules of
Civil Procedure justified a discovery extension where he was unable to “present
facts essential to justify [his] opposition” without the exams. After the parties
moved for summary judgment, Rollins again sought to compel the production of
exams or to reopen discovery for the same reasons set forth in his Rule 56(d)
motion.
On September 29, 2014, the district court granted the defendants’ motions
for summary judgment, denied Rollins’ Rule 56(d) motion, and denied Rollins’
motion for summary judgment. Rollins challenges the district court’s summary
judgment decision on appeal.
III.
A district court’s decision on a motion for summary judgment is subject to
de novo review. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
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To obtain summary judgment, a movant must demonstrate that there are no
genuine issues of material fact in dispute and that he or she is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). This standard
requires that the reviewing court view all the facts and draw all inferences from the
evidence in a light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.
Ed. 2d 538 (1986). However, summary judgment is not appropriate where the
movant’s evidence “is merely colorable” or “is not significantly probative.”
Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir. 1988) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511, 91
L. Ed. 2d 202 (1986) (emphasis omitted)). Rather, the evidence must be “such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248.
IV.
Rollins argues that the district court should not have granted summary
judgment in the defendants’ favor regarding his due process claim. In evaluating
this claim, the Court notes that a student dismissed from a public educational
institution for academic reasons is entitled to less process than a student dismissed
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for disciplinary reasons.1 Haberle v. Univ. of Ala., 803 F.2d 1536, 1539 (11th Cir.
1986). In fact, the Constitution does not require schools to hold formal hearings
for academic dismissals. Id; see also Bd. of Curators of Univ. of Mo. v. Horowitz,
435 U.S. 78, 90, 98 S. Ct. 948, 955, 55 L. Ed. 2d 124 (1978). Procedurally,
however, a school is required to engage in a “careful and deliberate” decision-
making process. Haberle, 803 F.2d at 1539 (quoting Horowitz, 435 U.S. at 85).
As the Supreme Court explained in Horowitz, 435 U.S. at 91, “[b]y and large,
public education in our Nation is committed to the control of state and local
authorities.” (internal citation and quotation marks omitted) Courts are reticent to
intrude on that historic control. Id.
For substantive due process claims, courts extend similar deference to a
school’s academic decisions. In Regents of the University of Michigan v. Ewing,
474 U.S. 214, 225, 106 S. Ct. 507, 513, 88 L. Ed. 2d 523 (1985), the Supreme
Court held that a medical student’s substantive due process rights were not violated
where “the faculty’s decision [to dismiss him] was made conscientiously and with
1
The Supreme Court has not addressed whether students have a constitutionally-protected
liberty or property interest in continued enrollment at public educational institutions. But the
Court presumed the existence of such a right in Board of Curators of the University of Missouri
v. Horowitz, 435 U.S. 78, 84–85, 98 S. Ct. 948, 952, 55 L. Ed. 2d 124 (1978). In Barnes v.
Zaccari, 669 F.3d 1295, 1304–05 (11th Cir. 2012), this Court held that a student at a publicly-
funded college had procedural due process rights based on the board of regents’ policy manual
and the school’s code of conduct. Rollins has not specifically addressed this issue. However,
the appellees have not asserted that Rollins does not possess some due process rights. Like in
Horowitz, this Court will assume such rights exist.
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careful deliberation, based on an evaluation of the entirety of Ewing’s academic
career.”2 It explained that,
[w]hen judges are asked to review the substance of a genuinely
academic decision, such as this one, they should show great respect
for the faculty’s professional judgment. Plainly, they may not
override it unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment.
Id.
On appeal, Rollins conflates the substantive and procedural due process
standards. He frequently alleges a “substantial departure from accepted academic
norms,” an element of substantive due process, when discussing arguments he
labeled as procedural issues at the district court level. Nevertheless, application of
either standard – substantive or procedural – leads to the same result. The district
court correctly concluded that summary judgment was appropriate because the
record establishes that UAB officials acted carefully and deliberately in dismissing
Rollins from dental school.
A. Dr. Tilashalski’s Representations to the APC and Faculty Council
Rollins alleges that Dr. Tilashalski made false statements and provided
misinformation to the APC and the Faculty Council and that Dr. Tilashalski’s
2
Relying on Horowitz, 435 U.S. at 91-92, the Ewing Court also assumed a
constitutionally-protected property right. 474 U.S. at 222-23.
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actions resulted in a violation of his due process rights. Rollins further contends
that the district court acted improperly in overlooking or excusing this conduct.
1. Cardiovascular-Renal Grade
Dr. Tilashalski admits that the June 8, 2012, e-mail he sent to the APC
incorrectly stated that Rollins failed the Cardiovascular-Renal course. However,
the district court observed that the same e-mail contained a spreadsheet with the
correct grade and that the minutes from the APC meeting 3 accurately represented
Rollins’ Cardiovascular-Renal grade. Because “the APC reached a decision based
on the correct information,” the district court concluded that Dr. Tilashalski’s
mistake did not violate Rollins’ due process rights.
Rollins argues that the district court should have allowed a jury to decide
whether the APC’s receipt of the correct information cured Dr. Tilashalski’s
prejudicial statement. However, he fails to cite any authority for this contention,
and he ignores the actual due process requirements for academic decisions. In both
Horowitz and Ewing, the Supreme Court held that lower courts are required to give
deference to the professional judgment of educators in making academic decisions.
3
Rollins also takes issue with the district court’s reliance on the minutes from the APC
meeting. In support of his contention that the minutes are “bogus,” Rollins states that they are
actually notes taken by Dr. Tilashalski that the APC never approved. He concludes that the notes
might contain inaccuracies because of their source. There is no evidence, however, that the
minutes contain inaccuracies. The district court did not err by relying on a document, the
contents of which are not genuinely disputed.
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Rollins does not dispute that the members of the APC received the correct
information before they voted to dismiss him from the dental school. The district
court rightly presumed that academic professionals are capable of disregarding
preliminary misinformation and then making a careful and deliberate decision
based on correct information. Further, the record does not contain any proof that
any APC members voted to dismiss Rollins because they believed he failed
Cardiovascular-Renal.
2. Gross Anatomy Grade
Rollins also asserts that Dr. Tilashalski misrepresented to the APC and the
Faculty Council that he failed Gross Anatomy. He contends that he did not fail the
course because he passed the comprehensive retest. However, Rollins does not
dispute that he failed every other assessment in Gross Anatomy or that his final
grade before the retest was fifty-three percent. Nor does Rollins dispute that the
syllabus provides that, “[s]tudents who earn a grade of 60-69 in the course will be
allowed to take a competency exam.” But, according to Rollins, this portion of the
syllabus does not expressly bar students who earn under a sixty percent grade from
taking the retest. Thus, he claims that the district court erred in finding that the
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syllabus only allowed students with a course average of sixty to sixty-nine percent
to retest.4
Rollins’ strained reading of the syllabus does not create a genuine dispute of
material fact. The district court reasonably attributed meaning to the sixty to sixty-
nine percent passage in the Gross Anatomy syllabus. If any student who received
less than a sixty percent was eligible to retest, the sentence would be entirely
superfluous. Further, the record plainly shows that Dr. Tilashalski forwarded Dr.
Zehren’s e-mail regarding the 2009 precedent to the APC as soon as he received it.
The district court found that Dr. Zehren’s e-mail was also printed and provided to
the Faculty Council.
Rollins counters that the transcript does not indicate that the issue was
discussed at the Faculty Council meeting. Nevertheless, the record establishes that
the Faculty Council members were aware of the precedent.
Notwithstanding the precedent, Dr. Tilashalski believed that Rollins should
not have received a passing grade in a foundational science class when his course
average was a fifty-three percent. Neither the academic guidelines nor the due
process requirements prohibited Dr. Tilashalski, a professional educator, from
4
Because Dr. Zehren allowed students who fell below the sixty percent cut-off to take the
retest in 2009, Rollins alternatively argues that he was entitled to take the retest. Further, he
claims his due process rights were violated when Dr. Tilashalski failed to orally inform the
Faculty Council about the 2009 precedent.
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sharing his opinion with other educators who possessed the same objective
information. While the Faculty Council and the APC possessed all the information
Rollins claims was necessary and were free to make their own determinations, both
determined that Rollins’ academic performance merited dismissal.
3. Failing Grades in Dental Anesthesia
Rollins asserts that Dr. Tilashalski also misinformed the Faculty Council that
he received the only failing grade in the spring Dental Anesthesia course. Even
assuming that such a mistake would affect Rollins’ due process rights, the record
does not support this argument.
Comparator Two received the second lowest grade in Dental Anesthesia.
However, she still received a score of 69.83 percent. Because Dr. Louis rounded
any grade between 69.1 and seventy percent to a C-grade, Comparator Two
finished the class with a C. In the district court, Rollins argued that there are six
different figures, ranging from 67.24 to sixty-eight, that purport to reflect his final
grade in Dental Anesthesia. But as the district court observed, Rollins fell below a
score of 69.1 percent, and, therefore, he failed the class regardless of which figure
the Court uses. Thus, Dr. Tilashalski accurately informed the Faculty Council that
Rollins was the only student to fail Dental Anesthesia.5
5
Rollins also challenges Dr. Tilashalski’s statements to the APC and Faculty Council that
he could not remember the last time someone failed Dental Anesthesia. Rollins asserts that
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B. Remediation
Next, Rollins maintains that the dental school violated his due process rights
by denying his request to remediate his failing grade in Dental Anesthesia. Rollins
disagrees with the district court’s conclusion that the APC and the Associate Dean
determine whether a student may remediate a class. Regardless of the academic
guidelines’ actual language, Rollins argues that, in practice, individual course
instructors decide who may remediate a course. For support, he relies on the
deposition testimony of Dr. Paul Eleazar, who stated that he would occasionally
allow remediation without the APC’s approval. Rollins cites to Dr. Louis’ e-mail
denying his grade appeal and request for remediation. Yet, Rollins fails to explain
how any of these arguments advance his due process theory. Regardless of
whether the APC, the Associate Dean, or Dr. Louis was responsible for the
remediation decision, there is no dispute that each would have denied Rollins the
opportunity to remediate.6
numerous people failed the class. However, Dr. Tilashalski’s statements regarding his memory
of events are not refuted by the record.
6
Dr. Louis’ e-mail to Rollins is not inconsistent with his earlier stance on remediation that
the district court discussed in its opinion. Dr. Louis told Rollins prior to the June 30th e-mail
that Rollins would need approval from the APC for remediation. Dr. Louis’ refusal to grant
Rollins’ request for remediation did not undermine his position that remediation was in the
APC’s discretion.
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Rollins also contends that the APC did not recommend remediation because
no one presented that option to the committee. The academic guidelines state in
the first paragraph that, “the APC will make recommendations to the Associate
Dean regarding promotion, probationary status, repetition, remediation, and
dismissal.” Dr. Tilashalski observed that, “all three options were available[:]
remediation, repetition, or dismissal.” However, the guidelines do not require the
Associate Dean or any member of the APC to offer remediation as an option at a
committee meeting before voting on a student’s academic status. Again, all of the
APC members had the information Rollins insists was necessary. Yet, after
discussion of his academic performance, they deliberately decided to dismiss him.
This option was specifically permitted by the guidelines.
Over a ten-year period, Rollins identified fifty dental school students who
received a failing grade but were permitted to remediate. Based on this
information, Rollins argues that the School of Dentistry’s decision to deny him
remediation was a “substantial departure from accepted academic norms.” The
district court rejected this argument because Rollins did not prove that he was
similarly-situated to any of those fifty students.
The federal district court for the Southern District of Alabama considered a
similar issue in Watson v. University of South Alabama College of Medicine, 463
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F. Supp. 720 (S.D. Ala. 1979). In deciding whether a student’s dismissal from
medical school violated his substantive due process rights, the court held that,
[w]hile the evidence reflects that different students were treated
differently and accorded individual treatment, this is to be expected by
a committee considering the entire academic record of many different
students. This Court would only be persuaded by the plaintiff’s
arguments on this point where there was evidence that a student with
an academic record and an individual history very similar to the
plaintiff’s was afforded substantially different treatment from that
received by the plaintiff.
Id. at 727. Here, the district court specifically considered whether those students
who also failed Dental Anesthesia in past semesters were similarly-situated to
Rollins. The court held that they were not, because all but one of them had
finished their first year of dental school when they took the course. Therefore,
unlike Rollins, they had already proven that they possessed the aptitude to succeed
in dental school. The only other student who failed first-year Dental Anesthesia
withdrew from the program, eliminating the remediation issue altogether.
In Ewing, 474 U.S. at 219, the Supreme Court similarly concluded that the
appellee was not entitled to retake a medical board exam even though he was the
only student who, having failed the test, was not permitted to retake it. The Court
observed that the school’s decision was sufficiently careful and deliberate,
notwithstanding proof that certain students were allowed to retake the exam as
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many as three or four times. 7 Id. at 219, 227. Here, Rollins did not present a
single comparator with a sufficiently similar academic record who was also denied
remediation. Accordingly, he is not entitled to relief based on his remediation
argument.
C. The Faculty Council’s Discussion of Rollins’ Potential Ethics
Violations
Rollins also challenges the Faculty Council’s discussion of his research
paper and academic status appeal. He argues that the council should have referred
its plagiarism concerns to the school’s ethics council. Rollins relies on the
testimony of Dr. Ruby in support of this assertion.
Dr. Ruby agreed in his deposition testimony that the ethics council is the
appropriate forum for plagiarism allegations. However, Dr. Ruby also indicated
that Rollins’ research paper was unique in that it was unsolicited. Neither the
Faculty Council nor Dr. Louis asked Rollins to submit the paper. Instead, he chose
7
During oral argument, the plaintiff cited to Maitland v. Wayne State University Medical
School, 257 N.W.2d 195 (Mich. Ct. App. 1977), as a favorable case with similar facts. In
Maitland, the Michigan appellate court upheld the trial court’s decision to reinstate a student
dismissed from medical school for failing an exam. Notably, Maitland was decided before the
Supreme Court’s decisions in Ewing and Horowitz. Further, Maitland is factually distinct from
this case. The Maitland Court found it significant that several students who scored lower than
the plaintiff on the same test were allowed to retake the exam. Id. at 200. Rollins, on the other
hand, has not produced evidence that any student scored lower than him in Gross Anatomy or
Dental Anesthesia. Additionally, he has not identified any evidence that any student who was
similarly-situated received different treatment.
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to write the paper and submit it to the council. Nothing in the academic guidelines
prohibits the Faculty Council from considering the actual source of material
voluntarily submitted by a student for its review. And contrary to Rollins’
assertions, the guidelines also do not forbid the council from reviewing materials
that the APC did not consider. As the district court properly observed, the
guidelines merely indicate that, “at a minimum,” the council should review the
same materials that the APC reviewed.
Rollins further contends that the district court drew “impermissible
inference[s]” when it refused “to question Tilashalski’s and Waite’s professional
evaluation” of his academic status appeal and research paper. However, a district
court does not err as Rollins suggests by deferring to the professional judgment of
education officials. In fact, the Supreme Court has directed courts to do just that
when reviewing such matters. See Ewing, 474 U.S. at 225. In part, this is because,
“[c]ourts are particularly ill-equipped to evaluate academic performance.”
Horowitz, 435 U.S. at 92. On the other hand, Drs. Tilashalski and Waite, as
experienced educators, were fully capable of determining whether the materials
submitted by Rollins were authentic. Rollins’ due process rights were not violated
when these educators voiced their opinions at a meeting of other professional
educators who were capable of reaching their own independent conclusions.
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During the council’s meeting, Dr. Tilashalski also suggested to others that,
“maybe we should say we told him [to write the paper] and fail him on the
remediation.” According to Rollins, this comment demonstrates bias and bad faith.
But, contrary to this argument, the evidence supports the district court’s conclusion
that: (i) the Faculty Council rejected Dr. Tilashalski’s suggestion, (ii) Dr.
Tilashalski did not have a vote on the council, and (iii) Dr. Waite’s opinion gave
the council an independent basis to assess Rollins’ research paper.
Rollins counters that the district court’s conclusions amount to an improper
credibility determination. He further asserts that Dr. Tilashalski was “like a DA
running the grand jury.” However, Rollins’ argument undervalues the judgment of
professional educators who had access to the same information as Dr. Tilashalski.
After Dr. Tilashalski’s presentation, he left the meeting, and the council held its
own independent discussion. The council then voted to affirm the APC’s dismissal
of Rollins, rather than implement Dr. Tilashalski’s proposal.
D. Consideration of Pre-Dental School Grades
Rollins claims that the Faculty Council improperly considered his pre-dental
school grades in dismissing him from the dental school. The district court rejected
this argument because the guidelines require the council to review the APC’s
decision which necessitates a review of the materials considered by the APC.
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Thus, the council was obligated to consider Rollins’ pre-dental school grades
because the APC considered them.
On appeal, Rollins argues that the district court’s holding “misses the point.”
He contends that the council “substantially depart[ed] from accepted norms” when
it failed to consider the pre-dental school grades of Comparators One and Two.
But Rollins offers no proof that Comparators One and Two were similarly-situated
in terms of their pre-dental school grades. The record does not contain any
evidence that, like Rollins, Comparator One or Two failed similar classes prior to
their arrival at dental school. In short, Rollins has not pointed to evidence in the
record that the pre-dental school grades of either comparator merited consideration
by the APC or Faculty Council.
E. Dr. Louis’ Grading
Rollins also accuses Dr. Louis of lying to the Faculty Council about curving
Dental Anesthesia grades. However, Dr. Louis confirmed during his deposition
that he rounds scores as low as 69.1 percent to C-grades. The fact that Comparator
Two passed Dr. Louis’ class with an average score of 69.83 supports the
conclusion that Dr. Louis applied his rounding policy to grades for the spring of
2012. However, Dr. Louis did not scale the grades in 2012. And because he did
scale the grades in 2011, Rollins claims that the different treatment qualifies as “a
substantial departure from accepted norms.”
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Dr. Louis’ deposition testimony demonstrates that he treated the 2011 and
2012 grades differently because the two classes were not similarly-situated. Dr.
Louis explained that, in 2011, few students attained A-grades. But, after
performing a psychometric analysis, he determined that the exam was difficult for
the class as a whole. As a result, Dr. Louis decided to scale the grades. In 2012,
Dental Anesthesia students performed much better than students enrolled in the
class in 2011. Accordingly, he determined that “additional scaling was not
warranted.” In other words, Dr. Louis did not scale the 2012 grades because
Rollins was an outlier. Instead, he reasonably treated the 2012 class (where only
one student failed) differently from the 2011 class (where multiple students
failed).8
Rollins contends that Dr. Louis also lied to the Faculty Council when he
stated that Rollins’ final grade in Dental Anesthesia included a ten percent credit
for clinical injections. Rollins claims that the injections accounted for only five
percent of his grade. If the credit had been ten percent as Dr. Louis stated, Rollins
claims that he “would have likely passed DA if his exams were graded properly.”
As discussed in more detail below, Rollins has not identified any evidence that he
8
Rollins also references Dr. Louis’ decision to curve the grades in his 2013 Dental
Anesthesia class. However, Dr. Louis made his presentation to the Faculty Council in 2012.
The decision that Dr. Louis made a year later is not relevant to a discussion of the “accepted
academic norms” at UAB in 2012.
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was entitled to higher scores on either the mid-term or the final exam in Dental
Anesthesia. Moreover, Rollins’ speculation about his Dental Anesthesia grade was
insufficient to withstand summary judgment. 9 See Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011) (“At the summary
judgment stage, such ‘evidence’ consisting of one speculative inference heaped
upon another, was entirely insufficient.”).
F. Dr. Louis’ Failure to Attend the APC Meeting
Continuing with his criticism of Dr. Louis, Rollins argues that Dr. Louis’
failure to attend the APC meeting or send a representative or letter constitutes a
substantial departure from the norm. But yet again, Rollins fails to identify any
evidence in the record to support this argument. Under Ewing, the departure from
accepted academic norms must be so substantial that it “demonstrate[s] that the
person or committee responsible did not actually exercise professional judgment.”
474 U.S. at 225. Rollins does not dispute the district court’s conclusion that Dr.
Louis was not required to attend the APC’s meeting. Further, Dr. Louis was not a
9
Rollins further argues that Dr. Louis significantly departed from academic norms by
refusing him access to the exams that he took in Dental Anesthesia. He asserts that other
professors allow students to review their exams after the professor has graded them. This issue
is moot now that Rollins has received copies of his Dental Anesthesia mid-term and final.
Additionally, the Constitution does not require that educational institutions give students due
process for every single decision made by an educator. The fact that Dr. Louis had a different
policy than other professors does not entitle Rollins to the relief sought.
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member of the APC, and there is no proof that his absence affected the committee
members’ ability to exercise their professional judgment.
G. Grade Appeal and Grading Inconsistencies
Likewise, Rollins does not contest the district court’s conclusion that he
failed to complete the third and final step of his grade appeal – an appeal to
Associate Dean Tilashalski.10 Rather, he claims that further pursuit of this appeal
was futile. Rollins appears to offer this information more as an explanation than an
argument. However, the fact that he abandoned pursuit of his due process rights
does not justify a due process claim against the Board of Trustees or Dean Reddy.
Even though Rollins abandoned his grade appeal, he now seeks to challenge
his Dental Anesthesia grade in this Court by comparing his exams with the exams
of other students. Rollins claims that the only credible explanation for
discrepancies is grade manipulation. Notwithstanding this argument, Rollins does
not point to any proof in the record that intentional grade manipulation occurred.
Instead, he contends that, based on Dr. Ramp’s testimony, a course master could
manipulate grades. At the summary judgment stage, such speculation cannot
salvage Rollins’ claims. See Josendis, 662 F.3d at 1318.
10
Rollins does claim that he actually initiated his grade appeal on June 4, 2012, and that Dr.
Louis drafted a denial e-mail on June 11, 2012, but never sent it. Regardless, Dr. Louis sent
Rollins an e-mail denying his grade appeal on June 30, 2012. Rollins admitted during the
injunction hearing that he received that e-mail.
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As for the three alleged discrepancies in the exam grading, two are from the
Dental Anesthesia mid-term given during the spring of 2012. However, because
Rollins answered both of the disputed questions incorrectly, he was not entitled to
receive credit for either question. 11 The fact that Comparator Two received credit
for similar incorrect answers does not constitute a due process violation.
Rollins has only identified one grading inconsistency on the final exam. But
that discrepancy is based on a comparison of his 2012 exam with another student’s
2011 exam. Even though the disputed question is the same, Dr. Louis might have
given credit for a wrong answer in 2011 if the entire class performed poorly on that
question. As with the mid-term exam, Rollins was not entitled to credit for an
incorrect answer. In short, the minor grading discrepancies Rollins identifies do
not amount to “substantial departures from accepted academic norms.” Instead,
Rollins’ exams only underscore the fact that he did not adequately grasp Dental
Anesthesia, an obviously important subject for any potential dentist.12
11
Comparator Two received 1.45 points when she answered “buccal” on one question, but
Rollins received no points for the same answer. Dr. Louis stated that both Comparator Two and
Rollins answered the question incorrectly and attributed the discrepancy to a “computer glitch.”
On a different mid-term question, Rollins answered “6-7.” Comparator Two answered “8-9.”
The correct answer was “10-11.” Comparator Two received credit for the answer, but Rollins
did not.
12
The only issue that Rollins raises in his appellate brief is the district court’s summary
judgment decision. However, Rollins also questions the district court’s denial of his motion to
compel the production of all of the Dental Anesthesia exams from the spring of 2012. This
Court reviews a district court’s decisions regarding discovery motions, including the denial of a
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H. Waived Procedural Challenges
Finally, Rollins alleges the following procedural deficiencies: (i) Dr. Louis
failed to prepare a Deficient Grade Report Form; (ii) the Faculty Council did not
cast the same number of votes for each first-year student it reviewed; (iii) the
council’s discussion prior to voting defeated the purpose of a secret ballot; (iv) the
motion to dismiss Rollins was not seconded before the council voted; and (v) the
council voted to affirm the APC’s recommendations when the guidelines require
them to vote for or against the Associate Dean’s decision. Notably, Rollins did not
make these arguments in his motion for summary judgment, nor were they
discussed in the district court’s resulting opinion. In this regard, we note that, “an
issue not raised in the district court and raised for the first time in an appeal will
not be considered by this Court,” especially where the issue involves a factual
motion to reopen discovery, for an abuse of discretion. Artistic Entm’t, Inc. v. City of Warner
Robins, 331 F.3d 1196, 1202 (11th Cir. 2003).
In his “Motion in the Spirit of Rule 56(d),” Rollins admits that before the close of
discovery, he received some of the Dental Anesthesia exams, including his mid-term and final
exam, the exams of Comparators One and Two, and one student’s exams from 2011. However,
Rollins waited until after the discovery deadline to move the Court to compel all of the exams.
The record of this matter clearly demonstrates that the parties were given sufficient time
to complete discovery. It contains thousands of pages of data, correspondence, and testimony.
Further, the district court granted several discovery extensions and ultimately extended the
discovery period for more than eight months. And, as discussed above, Rollins has not proven
that other Dental Anesthesia exams would likely have aided his case. With the four exams in his
possession, Rollins has not discovered any instance where he answered a question correctly but
was not given full credit. Accordingly, the district court did not abuse its discretion when it
denied Rollins’ request to further extend the time for discovery.
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question. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (quoting Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (internal
quotation marks omitted)). Even if these arguments were properly before this
Court, the academic guidelines do not require any of the procedure that Rollins
claims he was denied. 13 And even if the guidelines did contain such procedural
requirements, Rollins’ due process claims still fail.
To avoid summary judgment on these issues, Rollins needed to offer some
proof that the decision to dismiss him was not “careful and deliberate.” See
Horowitz, 435 U.S. at 85–87. Proof that the university committed trivial violations
of its internal policies is insufficient to meet that standard. Rollins not only
received due process from the university, but he also received significantly more
process than the Constitution requires. Even though the Supreme Court has held
that a formal hearing is not necessary for academic decisions, the university held a
formal hearing during which Rollins testified on his own behalf, called witnesses,
13
(i) The guidelines merely state, that when remediation is offered, the course director
“can” use the Deficient Grade Report Form. Rollins was not offered remediation, so there was
no reason to fill out the corresponding form. (ii) The council’s votes on Comparator Two and
Rollins were unanimous. Rollins does not explain how one less vote in his favor or one more
vote for Comparator Two would have made a difference. (iii) The guidelines specifically
require the council to hold a closed discussion after hearing testimony. (iv) The guidelines only
require a “motion for or against the Associate Dean’s decision.” They do not require a second.
(v) The fact that the council moved to uphold the APC’s decision rather than the Associate
Dean’s decision is inconsequential since the Associate Dean, Dr. Tilashalski, openly agreed with
the APC’s decision regarding Rollins.
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and was allowed to have an adviser present. In fact, Rollins received more process
than the students in Horowitz, Haberle, or Ewing.
V.
Rollins claims that the Board of Trustees violated his equal protection rights
under Title IX of the Education Amendments Act of 1972 and Title VI of the Civil
Rights Act of 1964. Title IX prohibits discrimination on the basis of sex, while
Title VI prohibits discrimination on the basis of race. 20 U.S.C. § 1681; 42 U.S.C.
§ 2000d. To maintain an equal protection claim, a plaintiff must allege that,
“through state action, similarly situated persons have been treated disparately.”
Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004) (internal citation
and quotation marks omitted). Further, the plaintiff must present evidence that the
state actor’s conduct was motivated by the plaintiff’s race or sex. See id. See also
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 97 S.
Ct. 555, 563, 50 L. Ed. 2d 450 (1977). In other words, the plaintiff must
demonstrate discriminatory intent. Vill. of Arlington Heights, 429 U.S. at 265–66.
A. Alleged Sex-based Discrimination under Title IX
Rollins acknowledges that he ranked third to last in his class.
Notwithstanding his academic standing and performance, he asserts that UAB
denied him equal protection when it dismissed him instead of Comparator Two, a
white female who ranked second to last in the class. To succeed on an equal
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protection claim based on circumstantial evidence, a plaintiff must prove that a
“nearly identical” comparator received different treatment. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). And Rollins’ Title IX
argument is entirely circumstantial.
The district court properly refused to second-guess UAB’s reasonable
decision because Rollins did not show that Comparator Two was “nearly identical”
to him. According to the district court, the students were not “nearly identical”
because Comparator Two “had a better overall record.” The district court reasoned
that Comparator Two only needed remediation in one class, whereas Rollins failed
Dental Anesthesia and would have failed Gross Anatomy but for the retest.
Further, Rollins failed the first two exams in Fundamentals I, a course he had taken
in graduate school.
Rollins insists on appeal that his academic record was better than
Comparator Two’s record. He relies on his higher GPA, slightly higher class rank,
and lower number of C-grades (three versus five) to support this argument.
Nevertheless, these statistics do not refute the district court’s proper conclusion
that Comparator Two and Rollins were not “nearly identical.” Significant
distinctions still exist between the academic records of Comparator Two and
Rollins.
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Courts have found that comparators are not similarly-situated based on even
fewer distinctions. In Watson, 463 F. Supp. at 722, an African-American student
was dismissed from medical school for poor academic performance. The student
demonstrated that a white student with lower grades was granted a leave of
absence in lieu of dismissal. Id. at 727 n.3. Nevertheless, the court held that the
students were not similarly-situated because the comparator had undergone therapy
for a psychological condition during his first year of medical school. Id.
In the present case, Comparator Two asserted that her grades were impacted
because her mother suffered a heart attack during the school year, requiring the
student to return home for a few days and miss classes. Comparator Two also
testified to a health condition that affected her academic performance during both
semesters. The only personal issue Rollins raised during his testimony was his
engagement to be married. These differences adequately demonstrated that Rollins
and Comparator Two were not similarly-situated.
Likewise, Rollins did not present any direct evidence of discriminatory
intent. According to Rollins, the fact that UAB allowed two female students
(Comparators One and Two) to remediate while it denied him the same
opportunity is sufficient proof of discriminatory intent. Again, however, the
district court properly disagreed. Just as Comparators One and Two were allowed
to take a retest when they failed Cardiovascular-Renal, Rollins was also allowed to
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take a retest in Gross Anatomy. In other words, he received the same opportunity
as his female counterparts. In short, Rollins has offered no direct evidence of
discriminatory intent nor has he proven that he and Comparator Two were
similarly-situated. Therefore, the district court did not err by granting summary
judgment in the defendants’ favor on Rollins’ sex-based discrimination claim.
B. Alleged Race-based Discrimination under Title VI
Rollins also contends that he was dismissed from the dental school as a
means for the school to “offset” the dismissal of Comparator One, an African-
American female. As proof of discriminatory treatment regarding his Title VI
claim, Rollins first observes that the APC and Faculty Council were informed
about his failure to meet the retest standard in Gross Anatomy, but did not know
about Comparator One’s failure to meet the Cardiovascular-Renal retest standard.
Even assuming that Comparator One was not eligible for the retest as Rollins
asserts, that fact does not help his case. Comparator One failed the retest as well as
the course. And like Rollins, she was also dismissed from the dental school. In
short, Rollins cannot prove disparate treatment by comparing himself to a student
who received the same treatment.
As direct evidence of discriminatory intent, Rollins offers the affidavits of
Dean Reddy and Dr. Tilashalski, originally filed in Comparator One’s separate
discrimination suit against UAB. In his affidavit, Dean Reddy states that, “[a]t
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approximately the same time as [Comparator One’s] dismissal, the [dental school]
also dismissed a white male student whose academic performance was inadequate,
but better than [Comparator One’s].” Dr. Tilashalski’s affidavit contains a similar
statement. Rollins relies on these affidavits as proof that he was dismissed from
the dental school “based on his race in order to justify or defend . . . the dismissal
of this black female student.” While correctly construing the evidence in a light
most favorable to Rollins, the district court still found that, “the affidavits fail to
establish that the [dental school] dismissed Rollins in anticipation of creating a
defense to a then non-existent lawsuit.” The affidavits only mention Rollins to
rebut Comparator One’s contention that racial animus played a role in her
dismissal.
In response, Rollins offers nothing but bare assertions, devoid of any factual
support. He contends that, “Tilashalski concluded that Comparator One, the last-
ranked student in the freshman class, had to go.” Rollins then claims that he was
dismissed as a racial offset to avoid a lawsuit. But the record only contains
contrary evidence. When asked during his deposition if he believed that
Comparator One “really needed to go,” Dr. Tilashalski responded, “I certainly
didn’t think she could be successful moving through the curriculum.” Then, the
following exchange ensued:
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Q. . . . I guess it would be awfully convenient that at the same time
[Comparator One] was dismissed that Lee Rollins was dismissed,
wasn’t it?
A. I don’t find any of this convenient. . . .
Q. It helps balance off a black female who got dismissed if at the
same time you got rid of a white male?
A. That’s certainly not my thought process.
Q. Was it ever your thought process?
A. No, sir.
Rollins has offered no direct evidence that contradicts Dr. Tilashalski’s deposition
testimony. Thus, the district court rightly rejected his claim that Dr. Tilashalski
was motivated by racial animus.
The only other evidence that Rollins offers in support of his discrimination
theory is the testimony of Drs. Ramp and Eleazar. According to Rollins, these
witnesses testified that “race certainly entered into their thought processes at the
APC.” When asked about Comparator One’s dismissal, Dr. Ramp stated during
her deposition that, “I’m sure race went through my head.” However, the district
court concluded that her statement was not sufficient to establish racial animus.
We agree.
The record does not support Rollins’ contention that Dr. Ramp harbored any
discriminatory intent. In fact, the record reflects that just the opposite was true.
Dr. Ramp ardently opposed Rollins’ dismissal. As the district court observed, Dr.
Ramp testified at the Faculty Council meeting on Rollins’ behalf and chose to
abstain from voting on Rollins at the APC meeting. Dr. Eleazar also admitted
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during his deposition that he “weighed the race of [Comparator One] in [his]
deliberation.” He explained that “it would be difficult to dismiss a black female
and promote a white female or white male.” Dr. Eleazar further agreed that
dismissing Rollins, a white male, did balance out the dismissal of Comparator One,
a black female. However, Dr. Eleazar voted at the APC meeting for all three
students to repeat the year. Based on this undisputed evidence, the district court
properly concluded that Dr. Eleazar’s “testimony only supports the reasonable
inference that he wanted to ensure that the APC treated all three students similarly”
because of their similar academic records.
The district court further concluded that Dr. Eleazar only considered race
because he wanted to make sure that all students were treated similarly, regardless
of their race. Once more, Rollins offers nothing to rebut the district court’s
analysis. Dr. Eleazar can hardly be accused of harboring discriminatory intent
when he voted against Rollins’ dismissal. Moreover, as discussed earlier, Rollins
cannot base an equal protection claim on evidence that he received the same
treatment as a comparator. Both Rollins and Comparator One were dismissed from
the dental school. Tilashalski voted for both of them to be dismissed. Dr. Ramp
advocated for both of them to remain students, and Dr. Eleazar voted for both of
them to repeat the year. Because Rollins did not offer any evidence of disparate
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treatment, the district court did not err by granting summary judgment in favor of
the defendants on Rollins’ equal protection claims.
VI.
The district court properly concluded that there are no genuine disputes of
material fact. Further, it did not err when it granted summary judgment for the
defendants. Accordingly, the district court’s judgment is AFFIRMED.
37