Rohde v. University of Central Oklahoma Board of Regents

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

NICKLAUS ROHDE, )

)

Plaintiff, )

)

v. )

)

STATE OF OKLAHOMA ex rel. )

THE BOARD OF REGENTS OF ) Case No. CIV-20-1243-G

THE UNIVERSITY OF CENTRAL )

OKLAHOMA, a/k/a THE UNIVERSITY )

OF CENTRAL OKLAHOMA, an )

Oklahoma higher education institution, )

et al., )

)

Defendants. )

ORDER

Plaintiff Nicklaus Rohde has brought this lawsuit against Defendant State of

Oklahoma ex rel. The Board of Regents of the University of Central Oklahoma (“Board”)

and Defendants Amy Johnson and Amanda Horton (the “Individual Defendants”), alleging

violations of Plaintiff’s federal and state-law rights as a student at the University of Central

Oklahoma (“UCO” or “the University”). See Am. Compl. (Doc. No. 7). Now before the

Court is the Motion to Dismiss (Doc. No. 9), filed jointly by Defendants, and Plaintiff’s

Response (Doc. No. 10).

SUMMARY OF THE PLEADINGS

In his Amended Complaint, Plaintiff alleges that Defendants violated his rights in

connection with his enrollment and studies as a student at UCO. Plaintiff alleges that he

suffers from ADHD, Asperger Syndrome, OCD, and a form of Tourette’s and takes

medication to treat one or more of these medical conditions. See Am. Compl. ¶ 10.

Plaintiff states that he first enrolled at UCO for the fall semester of 2016, after transferring

from Oklahoma State University. See id. ¶ 11. Plaintiff states that, as part of his transfer

to UCO, he and his father communicated with UCO regarding Plaintiff’s medical

conditions, including providing documentation and records to UCO’s Disability Support

Services (DSS) office. See id. Plaintiff alleges DSS issued an Accommodation Letter to

Plaintiff with seven accommodations, advising professors to provide Plaintiff with copies

of lecture notes, class audio recordings, and extended time for exams and quizzes, as well

as other unspecified accommodations. See id. ¶ 12.

Plaintiff alleges that he intended to enter UCO’s graphic design program to pursue

a career in graphic design. See id. ¶ 13. Plaintiff states that he took graphic design classes

at UCO from fall 2017 to spring 2019, maintaining a GPA above the minimum 2.75 GPA

required by the graphic design program. See id. Plaintiff alleges that he made the Dean’s

honor roll multiple times and was invited to join the Sigma Alpha Pi National Society of

Leadership and Success at UCO. See id. ¶ 18.

Plaintiff alleges that “many professors in the Graphic Design program were

unwilling to implement University mandated disability accommodations.” Id. ¶ 14.

Specifically, Plaintiff alleges that Defendant Horton, a professor in the graphic design

program, refused to provide class notes and lecture slides, and otherwise generally did not

comply with Plaintiff’s Accommodation Letter. See id. Plaintiff alleges that Defendant

Horton told him the accommodations in the Accommodations Letter did not apply to the

UCO graphic design program, and that Defendant Horton told Plaintiff, “here in graphic

design, you are not going to be able to use this,” referring to the Accommodation Letter,

and that accommodations do not help “for deadlines in graphic design.” Id. Plaintiff

alleges that he received a B grade in Defendant Horton’s fall 2018 class and a C grade in

Defendant Horton’s spring 2019 class. See id. ¶¶ 14-15.

Plaintiff states that he completed and submitted in spring 2019 an application and

portfolio of his graphic design projects for advancement to Graphic Design II, which is

required for a Graphic Design major and degree. See id. ¶ 16. Plaintiff alleges that

Defendant Johnson, the Graphic Design Department Chair, signed a form rejecting

Plaintiff’s Graphic Design II application. See id. ¶ 17. The form reflected a “Permission

Not Given” score and stated that “the work does not show enough evidence of strong

design/illustration skills to warrant your success in the design industry.” See id. Plaintiff

alleges that Defendant Johnson stated that Plaintiff’s application score reflected a

department committee review of Plaintiff’s performance and work and that Defendant

Johnson concluded that Plaintiff “was not good at ambiguity” and “would not succeed in

meeting future business clients’ creative needs.” Id. ¶¶ 18, 21.

On May 1, 2019, Plaintiff and his father met with Defendant Johnson and Pam Platz

from UCO Student Services. Id. ¶ 22. Plaintiff alleges that Platz stated that it was “very

rare” for graphic design applicants to receive a “Permission Not Given” score, rather than

a “Permission Not Given at This Time” score, which would have allowed Plaintiff to

engage in additional efforts and submit another application for review. Id. ¶¶ 20, 22.

Plaintiff alleges that Plaintiff Johnson stated that there was “really no appeal” of the

decision on Plaintiff’s application. See id. ¶ 22.

After his graphic design application was rejected, Plaintiff states that he “was forced

to major in General Studies” and continued to take classes at UCO. See id. ¶ 24.

Plaintiff alleges that his tuition payments spent on graphic design classes are wasted

as result of Defendants’ actions and that his future graphic design career interests will be

harmed by the stigma associated with failure to complete UCO’s graphic design program.

See id. ¶ 23.

Plaintiff brings four causes of action. First, Plaintiff alleges that Defendant Board

and Defendants Horton and Johnson, in their official capacities, subjected Plaintiff to

improper discrimination in violation of the Americans with Disabilities Act (“ADA”)1 and

the Rehabilitation Act.2 See id. ¶¶ 29-36. Second, Plaintiff alleges pursuant to 42 U.S.C.

§ 1983 that Defendants Horton and Johnson, in their individual and official capacities,

violated Plaintiff’s substantive due process rights under the Fourteenth Amendment of the

United States Constitution. See id. ¶¶ 37-51. Third, Plaintiff alleges a breach of the express

and/or implied contractual relationship that existed between Defendant Board and Plaintiff

by virtue of his enrollment at UCO. See id. ¶¶ 52-56. Lastly, Plaintiff alleges that

Defendants Horton and Johnson, in their individual capacities, tortiously interfered with a

contractual relationship between Plaintiff and Defendant Board. See id. ¶¶ 57-59. In this

1 Title II of the ADA provides that “[n]o qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132.

2 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination

by reason of disability “under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a).

lawsuit, Plaintiff seeks actual and compensatory damages, pre- and post-judgment interest

on damages, punitive damages against Defendants Horton and Johnson, and costs and

attorney’s fees. See id. at 18.

DISCUSSION

I. Applicable Standards

Defendants assert that Plaintiff’s allegations reflect that the Court lacks subject-

matter jurisdiction to hear certain of Plaintiff’s claims and, therefore, such claims should

be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). See Muscogee (Creek)

Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1226 (10th Cir. 2010) (noting that “a claim

of sovereign immunity raises a jurisdictional defense” (internal quotation marks omitted)).

“A facial attack on the complaint’s allegations regarding subject matter jurisdiction

questions the complaint’s sufficiency and requires the court to accept the allegations as

true.” Smith v. United States, 561 F.3d 1090, 1097 (10th Cir. 2009); see also E.F.W. v. St.

Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th Cir. 2001).

Defendants also seek dismissal of certain claims for “failure to state a claim upon

which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). Fed. R. Civ.

P. 12(b)(6). In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as

true all well-pleaded factual allegations in the complaint and view[s] them in the light most

favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation

omitted); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o withstand

a motion to dismiss, a complaint must contain enough allegations of fact to state a claim to

relief that is plausible on its face.” (internal quotation marks omitted)). Bare legal

conclusions in a complaint are not entitled to the assumption of truth; “they must be

supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).

II. Disability Discrimination Claims

Defendant Board and the Individual Defendants, in their official capacities, move

to dismiss Plaintiff’s ADA claim pursuant to Federal Rule of Civil Procedure 12(b)(1)

based on Eleventh Amendment immunity,3 and move to dismiss Plaintiffs’ ADA and

Rehabilitation Act claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a plausible discrimination claim pursuant to those statutes.

Under the doctrine of sovereign immunity, embodied in the Eleventh Amendment,

“States may not be sued by private individuals in federal court” unless the states “consent

to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power,

unequivocally expresses its intent to abrogate the immunity.” Bd. of Trs. of Univ. of Ala.

v. Garrett, 531 U.S. 356, 363 (2001); Muscogee (Creek) Nation, 611 F.3d at 1227 (internal

3 Defendants concede that this Court has jurisdiction over Plaintiff’s Rehabilitation Act

claim. See Defs.’ Mot. at 5; see Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164,

1168 (10th Cir. 2015).

quotation marks omitted).4 “Both the Tenth Circuit and the Oklahoma Supreme Court have

specifically determined that the boards of regents of Oklahoma universities are state

entities immune from lawsuit under the Eleventh Amendment.” Englehart v. Bd. of

Regents for Okla. Agric. & Mech. Colls., No. 15-CV-138, 2016 WL 3645193, at *4 (N.D.

Okla. June 30, 2016).5

“Oklahoma has not consented to be sued in federal court,” and so the Court

examines whether there has been a valid abrogation of sovereign immunity. Berry v.

Oklahoma, 495 F. App’x 920, 921 (10th Cir. 2012). Title II of the ADA incorporates by

reference section 505 of the Rehabilitation Act, codified at 29 U.S.C. § 794a, which

“authorizes suits by private citizens for money damages against public entities that violate

§ 12132.” United States v. Georgia, 546 U.S. 151, 154 (2006). The ADA further provides

that “[a] State shall not be immune under the eleventh amendment to the Constitution of

the United States from an action in [a] Federal or State court of competent jurisdiction for

a violation of this chapter.” 42 U.S.C. § 12202 (footnote omitted).

4 Pursuant to Ex parte Young, 209 U.S. 123 (1908)—inapplicable here—a plaintiff also can

avoid the Eleventh Amendment bar by suing state officers in their official capacities for

prospective injunctive relief. See Muscogee (Creek) Nation, 611 F.3d at 1232.

5 Suits against employees in their official capacities operate as a suit against the employer

itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . .

generally represent only another way of pleading an action against an entity of which an

officer is an agent. As long as the government entity receives notice and an opportunity to

respond, an official-capacity suit is, in all respects other than name, to be treated as a suit

against the entity.” (citation and internal quotation marks omitted)). The disability

discrimination claims against Defendants Johnson and Horton in their official capacities

are therefore dismissed as duplicative.

The Supreme Court recognized the latter statement “as an unequivocal expression

of Congress’s intent to abrogate state sovereign immunity.” Georgia, 546 U.S. at 154. In

Georgia, the Supreme Court explained that Congress doubtless has the power under section

5 of the Fourteenth Amendment to enforce that Amendment “by creating private remedies

against the States for actual violations of those provisions.” Id. at 158. “This enforcement

power includes the power to abrogate state sovereign immunity by authorizing private suits

for damages against the States.” Id. at 158-59. “Thus, insofar as Title II creates a private

cause of action for damages against the States for conduct that actually violates the

Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” Id. at 159.

In Georgia, the Supreme Court established a three-step analysis for district courts

to determine whether Title II of the ADA validly abrogated States’ immunity regarding

specific claims in individual cases. See id.; Guttman v. Khalsa, 669 F.3d 1101, 1113 (10th

Cir. 2012). The Court must determine, on a claim-by-claim basis: “(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.” Georgia, 546 U.S.

at 159. The Court addresses the first step of the Georgia analysis at the outset, as a finding

of allegations sufficient to state a claim for misconduct under Title II of the ADA is

necessary to reach the remaining steps. See id.; cf. Goonewardena v. New York, 475 F.

Supp. 2d 310, 323 (S.D.N.Y. 2007) (“If there is no violation of Title II, then the Georgia

analysis ends and the claim is dismissed on the ground that plaintiff has failed to state a

claim rather than that the court lacks jurisdiction due to sovereign immunity.”).

A. Whether the Alleged Conduct States a Violation of Title II of the ADA and

the Rehabilitation Act

Because the Rehabilitation Act and the ADA are “closely linked” to each other, the

Court evaluates Plaintiff’s Title II ADA claims together with his Rehabilitation Act claims.

Levy, 789 F.3d at 1170; see Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs.,

565 F.3d 1232, 1245 (10th Cir. 2009) (noting that the Rehabilitation Act and Title II

“involve the same substantive standards”); Rainwater v. Okla. ex rel. Bd. of Regents of

Univ. of Okla., No. CIV-19-382-R, 2020 WL 499698, at *2 (W.D. Okla. Jan. 30, 2020)

(“Title II of the ADA and § 504 of the Rehabilitation Act are coextensive with one another

. . . .”).

To state a claim under Title II, Plaintiff must plausibly allege that: “(1) he is a

qualified individual with a disability, (2) who was excluded from participation in or denied

the benefits of a public entity’s services, programs, or activities, and (3) such exclusion,

denial of benefits, or discrimination was by reason of a disability.” Robertson v. Las

Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007); see 42 U.S.C. § 12132.

To state a claim under the Rehabilitation Act, Plaintiff must plausibly allege that: (1) he is

an individual with a disability; (2) he would be “otherwise qualified” to participate in the

relevant program or activity; (3) the program or activity receives federal financial

assistance; and (4) the program or activity has excluded, denied benefits to, or

discriminated against Plaintiff “solely by reason of” his disability. McGeshick v. Principi,

357 F.3d 1146, 1150 (10th Cir. 2004); 29 U.S.C. § 794(a)-(b).

Defendants argue for dismissal of Plaintiff’s Title II and Rehabilitation claims on

the basis that Plaintiff has failed to allege facts sufficient to show that he was denied

benefits to or excluded from UCO’s graphic design program because of his disability.6 In

response, Plaintiff relies heavily on Gossett v. Oklahoma ex rel. Board of Regents for

Langston University, 245 F.3d 1172 (10th Cir. 2001). Gossett, however, is a case involving

Title IX and constitutional due process claims, and it therefore has no bearing on the merits

of Plaintiff’s ADA and Rehabilitation Act statutory claims. Plaintiff likewise dedicates

much of his argument to the proposition that his 42 U.S.C. § 1983 claims are not precluded

by his ADA and Rehabilitation Act claims, citing Polson v. Davis, 895 F. 2d 705, 710 (10th

Cir. 1990), and Rainwater, 2020 WL 499698, at *2. Defendants did not raise this argument

as a ground for dismissal, and the Court need not address it here.

Plaintiff’s response to the merits of Defendants’ argument that Plaintiff fails to state

an ADA or Rehabilitation Act claim is contained in a single paragraph in which Plaintiff

asserts that he has suffered “unlawful disability discrimination that violated his

constitutional rights of due process” based on allegations that one professor did not fully

comply with and spoke dismissively of the University’s Accommodation Letter and that

6 Defendants do not contest that Plaintiff has adequately pled that he is disabled under Title

II and the Rehabilitation Act. See Nielson v. Moroni Feed Co., 162 F.3d 604, 607-08 (10th

Cir. 1998); 42 U.S.C. § 12112(a). Nor do Defendants contest that Plaintiff was qualified

to receive the benefits and services provided by UCO as required to establish a claim for

violation of the ADA or the Rehabilitation Act. See Robertson, 500 F.3d at 1194-95; 42

U.S.C. § 12131(2). There is no dispute that UCO receives federal financial assistance.

his Graphic Design II application unusually was denied without the ability to try again.

See Pl.’s Resp. at 5-6. Plaintiff fails to cite, much less apply, the controlling framework

for a disability discrimination claim under Title II of the ADA or the Rehabilitation Act.

Nor does Plaintiff mention or discuss the statutory or regulatory basis for the

accommodations he asserts the University should have provided. Plaintiff presents no

relevant legal argument for why his ADA and Rehabilitation Act claims should not be

dismissed.

Assessing Plaintiff’s allegations, the Court finds that Plaintiff’s disability

discrimination allegations are insufficient to state a plausible claim for relief.7 Plaintiff’s

principal allegation is that his Graphic Design II application was denied following a

department committee review and that the score his application received did not allow for

a second opportunity to apply. See Am. Compl. ¶¶ 17-18. Plaintiff does not state in his

Amended Complaint what Defendants should have done differently in considering his

application other than awarding it a higher score. To the extent Plaintiff would have UCO

change its program requirements, such an accommodation is not actionable. See

McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d 974, 979 (10th Cir. 1998) (“Requiring

the University of New Mexico to advance [the plaintiff] to the next level of the medical

school program would represent a substantial, rather than a reasonable accommodation.”);

7 Plaintiff does not specify or discuss his theory of disability discrimination. “Courts have

recognized three ways to establish a discrimination claim: (1) intentional discrimination

(disparate treatment); (2) disparate impact; and (3) failure to make a reasonable

accommodation.” J.V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1295 (10th Cir. 2016).

The Court’s reading of Plaintiff’s allegations is that he is pursuing a claim for failure to

accommodate.

Cunningham v. Univ. of N.M. Bd. of Regents, 531 F. App’x 909, 920 (10th Cir. 2013) (“To

the extent that [the plaintiff] avers UNM should have changed its program requirements,

such an accommodation would not be reasonable.”). Plaintiff does not allege that the

department committee review was influenced by or considered his disability status, and the

Court will not second-guess the academic decision of a university department committee

absent some allegation of unlawful discrimination in the decision-making process. See

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (“When judges are asked to

review the substance of a genuinely academic decision . . . they should show great respect

for the faculty’s professional judgment.”); McGuinness, 170 F.3d at 979 (“Educational

institutions are accorded deference with regard to the level of competency needed for an

academic degree.”).

Plaintiff also alleges that one professor, Defendant Horton, failed to comply with

the University’s Accommodation Letter by not providing Plaintiff with class notes and

lecture slides.8 See Am. Compl. ¶ 14. Plaintiff, however, does not cite or discuss any legal

authority, statutory or otherwise, to support his claim that these materials were required to

be provided in this context as a reasonable accommodation. The provisions of the

Accommodation Letter are not necessarily coextensive with the legal requirements under

8 Plaintiff’s allegation that he “found many professors in the Graphic Design program were

unwilling to implement University mandated disability accommodations” is insufficient to

state a plausible disability discrimination claim. Am. Compl. ¶ 14; see Iqbal, 556 U.S. at

678 (“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”).

the ADA or Rehabilitation Act.9 To state a plausible claim, Plaintiff bears the burden, at

minimum, of demonstrating how alleged failures violate the legal standards of the ADA or

the Rehabilitation Act.

More broadly, Plaintiff alleges that his GPA at all times exceeded the standard for

the graphic design program, that he achieved the Dean’s Honor Roll multiple times, and

that he was invited to join an honor society at UCO. See Am. Compl. ¶¶ 13, 18. Plaintiff

alleges that he received passing grades in Defendant Horton’s classes, see id. ¶¶ 14-15, and

does not otherwise allege that Defendant Horton prevented him from continuing his

graphic design studies.10 Without more, these two alleged shortcomings by Defendant

Horton cannot support a theory of liability under the ADA and Rehabilitation Act. See

Cunningham, 531 F. App’x at 920 (affirming dismissal of ADA and Rehabilitation Act

claims in part because “[n]otwithstanding his accommodation request to UNM, [the

plaintiff] demonstrated that he did not need an accommodation to pass his medical school

classes or tests”).

B. Conclusion as to Disability Discrimination Claims

Plaintiff has failed to plead facts sufficient for the Court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Plaintiff’s unsupported assertions that the University should have done more to

accommodate him are the kind of “threadbare recitals” that are insufficient to survive a

9 Plaintiff does not provide or cite to the language of the Accommodation Letter.

10 Plaintiff alleges that Defendant Johnson told him that the committee review of his

graphic design application portfolio “was not about grades.” Am. Compl. ¶ 18.

motion to dismiss. See id. Because Plaintiff has not alleged facts sufficient for the Court

to conclude that Plaintiff has stated a claim under Title II of the ADA, the abrogation

analysis ends, and the Court need not reach the remaining steps under Georgia. See

Georgia, 546 U.S. at 159; Guttman, 669 F.3d at 1113. Because Plaintiff cannot meet the

requirements for abrogation, Plaintiff’s ADA Title II claim is therefore dismissed without

prejudice for lack of jurisdiction pursuant to Rule 12(b)(1).

The Court also concludes that Plaintiff fails to state a Rehabilitation Act claim for

the same reasons discussed above. Plaintiff’s Rehabilitation Act claim is therefore

dismissed without prejudice pursuant to Rule 12(b)(6).11

III. Section 1983 Claims

A. Section 1983 Official Capacity Claim

Defendants contend that Plaintiff’s 42 U.S.C. § 1983 substantive due process claim

against Defendants Horton and Johnson in their official capacities must be dismissed

because state officials cannot be sued in their official capacities under § 1983 for money

damages. The Court agrees. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress . . . .

11 Even assuming that this Court had jurisdiction over Plaintiff’s ADA Title II claim,

Plaintiff has likewise failed to state a claim for violation of Title II pursuant to Rule

12(b)(6).

42 U.S.C. § 1983.

In Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), the Supreme

Court held that a suable “person” under § 1983 does not include a State or a State official

sued in her official capacity for damages. Plaintiff does not address this or present any

contrary argument in his Response.

Plaintiff’s § 1983 claim against Defendants Horton and Johnson in their official

capacities for money damages is therefore dismissed pursuant to Rule 12(b)(6).12

B. Section 1983 Individual Capacity Claim

Defendants move to dismiss Plaintiff’s substantive due process claims against

Defendants Johnson and Horton in their individual capacities on the grounds that (a)

Plaintiff has failed to plead a substantive due process claim, and (b) Defendants Johnson

and Horton are shielded from liability by the doctrine of qualified immunity.

1. Substantive Due Process

“Claims for ‘substantive due process’ find their basis in the Fourteenth

Amendment’s protections against arbitrary government power.” Lindsey v. Hyler, 918

F.3d 1109, 1115 (10th Cir. 2019). “A violation of substantive due process may arise in

two ways—from (1) legislative acts that infringe on a fundamental right, or (2) official

conduct that deprives a person of life, liberty, or property in a manner so arbitrary as to

shock the judicial conscience.” Id. To succeed on a substantive due process claim, “an

12 “[A] state official in his or her official capacity, when sued for injunctive relief, would

be a person under § 1983 because official-capacity actions for prospective relief are not

treated as actions against the State.” Will, 491 U.S. at 71 n.10 (internal quotation marks

omitted). Plaintiff, however, does not seek injunctive relief. See Am. Compl. at 18.

individual must demonstrate that the government deprived him of life, liberty, or property

without due process of law.” Id.

“When analyzing executive action, ‘only the most egregious official conduct can be

said to be arbitrary in the constitutional sense.’” Onyx Props. LLC v. Bd. of Cnty. Comm’rs

of Elbert Cnty., 838 F.3d 1039, 1048-49 (10th Cir. 2016) (quoting Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998)). “[A] plaintiff asserting a substantive due process claim

based on an academic decision must show that the decision was the product of arbitrary

state action rather than a conscientious, careful and deliberate exercise of professional

judgment.” Gossett, 245 F.3d at 1182 (citing Ewing, 474 U.S. at 224-25). “A plaintiff

may make such a showing by evidence that the challenged decision was based on

‘nonacademic or constitutionally impermissible reasons,’ rather than the product of

conscientious and careful deliberation.” Id. (quoting Ewing, 474 U.S. at 225).

a. Defendant Johnson

Plaintiff’s substantive due process claim against Defendant Johnson, at its core, is

that she and the department committee misjudged Plaintiff’s fitness to progress further in

the University’s graphic design program. Plaintiff in various places in his complaint

criticizes the committee review process in general terms as “arbitrary,” “subjective,” and

“not an accurate reflection of Rohde’s performance in the program.” See Am. Compl. ¶¶

17, 19-20. Plaintiff does not, however, allege any facts demonstrating that Defendant

Johnson or the department committee based the decision on any nonacademic or

discriminatory reasons.

The Supreme Court instructs that judges may not override “a genuinely academic

decision” “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.” Ewing, 474 U.S. at 225. Plaintiff’s complaint describes a standard academic

process in the University’s graphic design program whereby a department committee

reviews student applications to approve progression to Graphic Design II. See Am. Compl.

¶¶ 16-19. The department committee returns a form with a score, including feedback on

skills such as “critical thinking” and “craft/presentation.” Id. This process, as alleged by

Plaintiff, cannot be described as “a substantial departure from academic norms.” Ewing,

474 U.S. at 225.

Plaintiff alleges that a student services representative told him the “Permission Not

Given” score his application received was “very rare.” See Am. Compl. ¶ 22. Accepting

this allegation as true, that fact does not mean the department committee decision was a

substantial departure from academic norms. To the contrary, it suggests that the

“Permission Not Given” score was available to the department committee in the normal

course.

Most importantly, Plaintiff has not alleged any bias or animus toward Plaintiff based

on his disability (or otherwise) that may have impermissibly affected Defendant Johnson

or the committee’s review of his application. Plaintiff relies on Gossett for the proposition

that “judicial deference to academic decisions loses force when, as here, the decisionmaker

is ‘accused of concealing nonacademic or constitutionally impermissible reasons’ for its

action.” Gossett, 245 F.3d at 1181 (quoting Ewing, 474 U.S. at 225). In Gossett, the

plaintiff, a male nursing student, alleged that the female nursing instructors discriminated

against him on the basis of his gender, giving him a failing score in a required class that

resulted in his forced withdrawal from the nursing school program. See id. at 1175-80.

The Tenth Circuit ruled that the plaintiff created a fact issue as to whether his withdrawal

from the nursing program was motivated by impermissible gender discrimination sufficient

to overcome summary judgement. See id. at 1182. Plaintiff here has not alleged any facts

that would similarly suggest that Defendant Johnson or the department committee harbored

discriminatory motive or rejected Plaintiff’s application for nonacademic reasons.13

In his Response, Plaintiff argues that the department committee’s decision was

discriminatory because it was “a subjective rejection” issued on an “ad hoc and arbitrary

basis.” Pl.’s Resp. at 5-6. This is nothing more than an expression of disagreement with

the department committee’s professional judgment, and it is not a sufficient basis for a

substantive due process claim against Defendant Johnson. Plaintiff’s substantive due

process claim against Defendant Johnson is therefore dismissed for failure to state a claim

upon which relief may be granted.

b. Defendant Horton

To state a claim for substantive due process, a plaintiff must allege the loss of life,

liberty, or property. See Hyler, 918 F.3d at 1115. Plaintiff here makes no such allegation

13 Plaintiff criticizes Defendant Johnson’s lack of familiarity with Plaintiff, noting that

Defendant Johnson “had no instruction time” with Plaintiff. See Am. Compl. ¶ 19.

as to Defendant Horton. While the Court recognizes that Plaintiff has a property interest

in his continued enrollment at UCO, see Gossett, 245 F.3d at 1181, there is no connection

between the allegations against Defendant Horton and Plaintiff’s continued enrollment at

UCO or progression within the graphic design program. Plaintiff does not allege that

Defendant Horton gave him failing grades in her classes or otherwise inhibited his ability

to continue his studies. See Am. Compl. ¶¶ 14-15. Because Plaintiff has not alleged any

deprivation of property by Defendant Horton, Plaintiff’s substantive due process claim

against Defendant Horton is dismissed. See Fed. R. Civ. P. 12(b)(6).

2. Qualified Immunity

Because Plaintiff has failed to allege that Defendants Johnson and Horton violated

a constitutional right, the Court need not determine whether they also would be entitled to

dismissal based on qualified immunity.

IV. State-Law Claims

A. Breach of Contract Claim

Defendant Board moves to dismiss Plaintiff’s breach of contract claim against it

based on Eleventh Amendment immunity. As discussed in Section II above, under the

doctrine of sovereign immunity, embodied in the Eleventh Amendment, “nonconsenting

States may not be sued by private individuals in federal court.” Garrett, 531 U.S. at 363.

The sole exceptions to State sovereign immunity are “(1) when Congress has abrogated the

states’ immunity, as in legislation enacted to enforce the Fourteenth Amendment; and (2)

when a state waives its immunity.” Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub. Safety,

722 F.3d 1209, 1212 (10th Cir. 2013). Only the latter exception is potentially applicable

to Plaintiff’s state-law claims.

“Waiver of sovereign immunity must be knowing and voluntary, and the ‘test for

determining whether a State has waived its immunity from federal jurisdiction is a stringent

one.’” Id. at 1213 (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 675 (1999)). The Supreme Court has found waiver when a state

“expressly consented by statute to suit in federal court,” and “when it voluntarily invoked

federal jurisdiction by filing suit in federal court, moving to intervene in federal-court

litigation, or removing a case to federal court.” Id. (citing Port Auth. Trans-Hudson Corp.

v. Feeney, 495 U.S. 299, 308-09 (1990); Lapides v. Bd. of Regents, 535 U.S. 613, 619-24

(2002)). “A state can likewise enter into a contract that waives its Eleventh Amendment

immunity to suits related to the contract.” Id. “When a statute or other document

purportedly waives a state’s Eleventh Amendment immunity,” the Court “will give effect

to the waiver only where stated by the most express language or by such overwhelming

implication from the text as will leave no room for any other reasonable construction.” Id.

(alteration and internal quotation marks omitted).

Plaintiff argues against the application of state sovereign immunity by relying on

Hoover v. Kiowa Tribe of Oklahoma, 909 P.2d 59, 62 (Okla. 1995),14 and State Board of

Public Affairs v. Principal Funding Corp., 542 P.2d 503, 506 (Okla. 1975), for the

14 Though not noted by Plaintiff, this decision has been expressly overruled by the

Oklahoma Supreme Court. See Carl E. Gungoll Expl. Joint Venture v. Kiowa Tribe of

Okla., 975 P.2d 442, 444-45 (Okla. 1998).

proposition that Oklahoma law permits suits to enforce the terms of contracts entered into

by the State. These are both, however, Oklahoma Supreme Court cases discussing

Oklahoma law, and they do not purport to authorize suits in federal court against the state

for breach of contract. See Pettigrew, 722 F.3d at 1214-15 (citing State Board of Public

Affairs and noting the “unsettled question” of “whether the state could be sued in federal

court for breach of the Agreement”).

As the party asserting federal jurisdiction, Plaintiff bears “the burden of alleging the

facts essential to show jurisdiction.” U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d

787, 797 (10th Cir. 2002) (internal quotation marks omitted). Plaintiff argues there is an

express or implied contract between Plaintiff and the University by virtue of his enrollment,

and that “some of the terms of which are found [in] the UCO student Handbook and other

UCO policies.” Pl.’s Resp. at 9. Plaintiff does not cite to or provide any terms from the

Handbook or UCO policies, much less direct the court to a contractual term that waives the

state’s Eleventh Amendment immunity. See Pettigrew, 722 F.3d at 1213; Patterson v.

Okla. ex rel. Bd. of Regents of Univ. of Okla., No. CIV-20-355-R, 2020 WL 5666055, at

*3 (W.D. Okla. Sept. 23, 2020) (dismissing breach of contract claim for lack of jurisdiction

when the plaintiff did “not provide the Court with any specific contract or contractual

provision, much less a provision that waived the University’s immunity”). In the absence

of any contract term waiving sovereign immunity, the Court concludes that Plaintiff’s

breach of contract claim is barred by the Eleventh Amendment.

Plaintiff also argues that the Court has jurisdiction over his breach of contract claim

based on supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). Supplemental

jurisdiction does not authorize district courts to exercise jurisdiction over claims against

nonconsenting states, however. See Raygor v. Regents of Univ. of Minn., 534 U.S. 533,

541-42 (2002); Pettigrew, 722 F.3d at 1213.

Plaintiff’s breach of contract claim is therefore dismissed for lack of jurisdiction

under Federal Rule of Civil Procedure 12(b)(1).

B. Tortious Interference Claim

Defendants move to dismiss Plaintiff’s claim for “intentional/tortious interference”

against Defendants Horton and Johnson in their individual capacities for failure to state a

claim. To state a claim for tortious interference, a plaintiff must plausibly allege that (1)

“[t]hat he or she had a business or contractual right that was interfered with”; (2) “[t]hat

the interference was malicious and wrongful, and that such interference was neither

justified, privileged nor excusable”; and (3) “[t]hat damage was proximately sustained as

a result of the complained interference.” Daniels v. Union Baptist Ass’n, 55 P.3d 1012,

1015 (Okla. 2001).

Defendants argue that Plaintiff’s tortious inference claim fails because Plaintiff has

not sufficiently pled the existence of a contract. See Defs.’ Mot at 18. The Court agrees

that Plaintiff must, at a minimum, include allegations in his complaint identifying a

contractual right that was interfered with. Plaintiff does not do so—Plaintiff does not allege

any specific terms or rights under a purported contract between the University and him.

To the extent Plaintiff is asserting that the Individual Defendants interfered with the general

student/university relationship, Plaintiff does not allege that he was expelled or suspended

or that his status as a student in good standing at UCO was in any way affected by the

actions of Defendants Johnson and Horton.15

Nor does Plaintiff allege facts sufficient to demonstrate that either Individual

Defendant acted maliciously and wrongly. Plaintiff relies on Martin v. Johnson, 975 P.2d

889, 891-92 (Okla. 1998), for the proposition that allegations of sexual harassment and

retaliation are sufficient to show malicious and wrongful interference with an employment

contract. The Court sees no parallel between Martin and the present case, and Plaintiff

offers none. Plaintiff also relies on Fulton v. People Lease Corp., 241 P.3d 255, 264-65

(Okla. Civ. App. 2010), for the proposition that Oklahoma courts recognize a tortious

interference cause of action by an employee against a supervisor for sexual harassment and

retaliation when the supervisor’s actions were not in good faith, intentional, and “not for

any legitimate purpose of the business enterprise.” The Court again sees no parallel

between Fulton and the present case, and Plaintiff offers none.

Plaintiff has therefore failed to allege a plausible tortious interference claim against

the Individual Defendants, and Plaintiff’s tortious interference claim is dismissed pursuant

to Federal Rule of Civil Procedure 12(b)(6).

15 Plaintiff alleges that he “continued to perform well in school at UCO following his

untimely dismissal from the graphic design program” and majored in General Studies. Am.

Compl. ¶ 24.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 9) is

GRANTED. All claims raised in the Amended Complaint are dismissed without prejudice.

A separate judgment shall be entered.

IT IS SO ORDERED this 30th day of September, 2021.

CHARLES B. GOODWIN

United States District Judge

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