United States District Court, W.D. Oklahoma
GRACIE K. BEARDEN, Plaintiff,
STATE OF OKLAHOMA ex rel. THE BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, Defendant.
HEATON CHIEF U.S. DISTRICT JUDGE
Gracie K. Bearden filed this action against the State of
Oklahoma, ex rel. Board of Regents of the University
of Oklahoma (“University”) alleging that the
University violated the Americans with Disabilities Act of
1990 (“ADA”) and Section 504 of the
Rehabilitation Act (“Rehab Act”) when, while she
was a nursing student, it failed to accommodate her
disabilities. The University has filed a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). It contends
plaintiff has failed to state a claim under either the ADA or
the Rehab Act and that it is immune from liability for money
damages under Title II of the ADA.
considering whether a plaintiff's claim should be
dismissed under Rule 12(b)(6), the court accepts all
well-pleaded factual allegations as true and views them in
the light most favorable to the plaintiff as the nonmoving
party. S.E.C. v. Shields, 744 F.3d 633, 640 (10th
Cir. 2014). While all that is required is “a short and
plain statement of the claim showing that the pleader is
entitled to relief, ” Fed.R.Civ.P. 8(a)(2), the
complaint still must contain “enough facts to state a
claim to relief that is plausible on its face” and
“raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 555 (2007). Considering plaintiff's claims
under this standard, the court concludes defendant's
12(b)(6) argument fails.
support of its position that plaintiff has failed to plead
facts sufficient to establish a violation of the Rehab Act or
Title II of the ADA, the University cites McGuinness v.
Univ. of New Mexico Sch. of Med., 170 F.3d 974 (10th
Cir. 1998). That case, however, was decided on summary
judgment, not a motion to dismiss. The issue at this stage of
this proceeding is whether plaintiff has pleaded that she had
been discriminated against and the court concludes she has.
Defendant's arguments, such as whether it should
“be forced to unreasonably accommodate a student by
permitting her to advance in her studies if she has not
demonstrated a requisite level of competency, ” doc.
#10, p. 7,  raise issues of fact that cannot be
resolved at this time.
difficult is defendant's argument that it is entitled to
Eleventh Amendment immunity with respect to plaintiff's
ADA claim. States and their agencies generally are protected
from suit by sovereign immunity “as guaranteed by the
Eleventh Amendment.” Levy v. Kansas Dep't of
Soc. & Rehab. Servs., 789 F.3d 1164, 1168 (10th Cir.
2015). Three exceptions to the Eleventh Amendment's
guarantee of immunity exist:
First, a state may consent to suit in federal court. Second,
Congress may abrogate a state's sovereign immunity by
appropriate legislation when it acts under Section 5 of the
Fourteenth Amendment. Finally, under Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a plaintiff
may bring suit against individual state officers acting in
their official capacities if the complaint alleges an ongoing
violation of federal law and the plaintiff seeks prospective
Id. at 1169 (quoting Muscogee (Creek) Nation v.
Pruitt, 669 F.3d 1159, 1166 (10th Cir.2012)).
Supreme Court held in Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 374 (2001), that “Congress
did not validly abrogate sovereign immunity for employment
discrimination claims made against states under Title I of
the ADA.” Id. However, as discussed in
Levy, the Supreme Court later concluded in
United States v. Georgia, 546 U.S. 151, 159 (2006),
that “states can be sued on claims of discrimination in
the provision of public services under Title II of the ADA
when states actually violate the Fourteenth Amendment or when
such services implicate fundamental constitutional
answer the specific question here, “whether the
accommodation requirement of Title II is a valid exercise of
§ 5 authority, as it applies to cases involving [higher
public education], ” Guttman v. Khalsa, 669
F.3d 1101, 1113 (10th Cir. 2012), which neither the Supreme
Court nor the Tenth Circuit has resolved, the court applies
the three-step analysis from United States v.
Georgia. Id. That requires the court to
determine “‘(1) which aspects of the State's
alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3)
insofar as such misconduct violated Title II but did not
violate the Fourteenth Amendment, whether Congress's
purported abrogation of sovereign immunity as to that class
of conduct is nevertheless valid.'” Id.
(quoting Georgia, 546 U.S. at 159)).
first step requires identification of “the state's
conduct that allegedly violated Title II's prohibition
against disability discrimination in the provision of state
services or programs.” Id. Plaintiff claims
the State's College of Nursing discriminated against her
because of her disabilities by failing to follow its own
policies and procedures when she had academic difficulties.
second step requires an assessment of plaintiff's
Fourteenth Amendment claims. Id. Here there is
nothing to assess, as plaintiff does not allege any
constitutional violations in the complaint. While she does
discuss equal protection and substantive due process claims
in her response brief, the court can only consider what she
has actually pleaded. As plaintiff failed to allege a Fourteenth
Amendment violation, the court “must proceed to the
final Georgia step to determine whether the
purported abrogation of sovereign immunity is valid.”
determine the validity of Congress' action the court must
consider: “(1) the nature of the
constitutional right at issue; (2) the extent to which
Congress's remedial statute was passed in response to a
documented history of relevant constitutional violations; and
(3) whether the congressional statute is “congruent and
proportional” to the specific class of violations at
issue, given the nature of the relevant constitutional right
and the identified history of violations.”
Guttman, 669 F.3d at 1117 (citing City of Boerne
v. Flores, 521 U.S.50, 529-36 (1997)).
Tenth Circuit emphasized in Guttman that
“[t]he Supreme Court has instructed [courts] to assess
Eleventh Amendment abrogation on a case-by-case
basis-‘[w]ith respect to the particular [governmental]
services at issue in [the] case.'” Id.
(quoting Tennessee v. Lane, 541 U.S. 509, 527
(2004)). In Guttman the court considered
“whether the accommodation requirement of Title II is a
valid exercise of the § 5 authority, as it applies to
cases involving professional licensing.” Id.
at 1113. The plaintiff in that case, a physician, had sued
the state for money damages after it revoked his medical
license based on his mental condition. Applying the City
of Boerne analysis, the court determined that
“Title II does not validly abrogate [the state's]
sovereign immunity in the context of professional
licensing.” Id. at 1125. It reached that
decision after concluding that: (1) the constitutional right
asserted -- “a disabled individual's right to
practice in his chosen profession” -- was not entitled
to heightened scrutiny, id. at 1118; (2)
“Congress did not identify a history of irrational
discrimination in professional licensing when enacting Title
II, ” id. at 1119; and (3) the Title II remedy
was not “congruent and proportional, ”
id. at 1119-25, “in the context of the class
of cases implicating disability discrimination in
professional licensing.” Id. at 1120.
the right at issue -- a disabled individual's right to
receive an undergraduate degree -- also is not a fundamental
right. Id. at 1123 n.4. And “[t]he disabled
are not a suspect class for equal protection purposes.”
Toledo v. Sanchez, 454 F.3d 24, 33 (1st Cir.2006).
The Tenth Circuit commented in Guttman that:
“there is a trend of courts holding that, absent the
need to vindicate a fundamental right or protect a suspect
class, Congress may not abrogate state sovereign immunity . .
.[And] [t]he bent of these cases has led at least one
commentator to conclude that, when ‘the plaintiff is
not alleging a constitutional violation and the case does not
involve a type of discrimination or a right receiving
heightened scrutiny, the state can ...