Petition for Writ of Certiorari — Cooper v. Powell
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(1) Supreme Court, U.S.
: FILED
001745 MAY 1 6 2001
No.
OFFICE OF THE w2e*v
In The
Supreme Court of the United States
*
ARLENE M. COOPER and CALVIN STOUDT,
Petitioners,
v.
CONNIE G. POWELL,
Respondent.
*
ON PETITION FOR WRIT OF CERTIORARI TO THE WISCONSIN
SUPREME COURT
e
PETITION FOR WRIT OF CERTIORARI
*
JAMES E. DOYLE
Attorney General
Mary D. Batt*
Assistant Attorney General
Attorneys for Petitioner
Wisconsin Department of Justice
Post Office Box 7857
Madison, WI 53707
(608) 266-1001
*Counsel of Record
QUESTIONS PRESENTED
1) Does a student have a constitutionally protected property
interest in continued enrollment in a post-secondary
education program?
If yes,
2) Does a student have an interest that is protected by
substantive due process to judicial review of an academic
decision requiring the student to disclose her mental illness
to her clinical practicum supervisor as a condition of
continuing to participate in a counseling and guidance
program?
If yes,
3) Whether the law was clearly established on the above
questions in 1991 such that the university professors, who
required the student to disclose her mental illness to the
clinical practicum supervisor, were not entitled to qualified
immunity?
li
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .............--ssccccssssssssconsesecccensescces
OPINIONS BELOW......0.....cccscsccssssssssssssseseees soutionceaaniiia 1
SRT iecssncsssecsisstccannbaiiesaia aac 2
CONSTITUTIONAL PROVISION AND
STATUTE: TCO oasis, Maclaren 2
STATEMENT OF THE CASE............sccsssssssssssssscssnsesesennees 3
REASONS FOR GRANTING REVIEW.............::scsssseeee 4
MICRON sss-sssninccnssospbingns cismauatanily-Gntemmaiaaa 7
I. THE WISCONSIN SUPREME
COURT’S HOLDING THAT A
STUDENT HAS A
CONSTITUTIONALLY
PROTECTED PROPERTY
INTEREST IN CONTINUING A
GRADUATE SCHOOL
EDUCATION ESTABLISHES A
RIGHT THAT HAS NEVER BEEN
RECOGNIZED BY THIS COURT............ 7
ili
Il. THE WISCONSIN SUPREME
COURT’S HOLDING, THAT A
GRADUATE STUDENT HAS A
SUBSTANTIVE DUE PROCESS
RIGHT TO REVIEW AN
ACADEMIC DECISION
REQUIRING HER TO REVEAL A
MENTAL ILLNESS TO HER
CLINICAL PRACTICUM
SUPERVISOR, HAS NEVER
BEEN RECOGNIZED BY THIS
COURT AND IS CONTRARY TO
PRIOR DECISIONS OF THIS
CE ctisisiitinntisicenesennsitestnesebiiienenstinatibiintan is
Ill. THE WISCONSIN SUPREME
COURT INCORRECTLY HELD
THAT A CONSTITUTIONALLY
PROTECTED PROPERTY RIGHT
IN CONTINUING IN A HIGHER
EDUCATION PROGRAM WAS
CLEARLY ESTABLISHED IN
Fae iaincnhnctdiininicnbetpiniitbitentiiineniansintniniaiecseesen 20
Pe ETTI ITE iccsicndesakonahasapeanecaieeniashiouidusnppennpnnaseseinpenanesin 23
Abbariao v. Hamline University School of Law,
258 N.W.2d 108, 112 (Minn. 1977)..............cc.cccceeseeeee 6
iv
Akins v. Board of Governors of
State Colleges and Universities,
840 F.2d 1371, 1376, 1377
(7th Cir. 1988) vacated on other grounds,
Ee Ch clin ihctsscinsistbinedsablindcnetnpsinnindiiciie 5,21
Alanis v. University of Texas,
843 S.W. 2d 779, 788-89
Ga I SINE ccincinncntsncincbiitaniseunsdsinitianstiaiaadiblanbdoceinti 16
Albright v. Oliver,
De es BF OOF i iiahiitistinthnsnsmntiintieannasiniie 19
Anderson v. University of Wisconsin,
665 F. Supp. 1372, 1396 (1987)............cseccceesees 12, 16
Behrens v. Pelletier,
ee es Be es I iisctnsteinsacicinceciniisisisnioonaian 2
Board of Curators v. Horowitz,
a RE ee OL passim
Booker v. Grand Rapids Medical College,
156 Mich. 95, 120 N.W. 589 (1909) 00... eee eeeeeeeeees 8
Clifton-Davis v. State of Oklahoma,
930 P.2d 833,834-35 (1996)............ccccceccecseeeseeees 17, 18
Crosetto v. State Bar of Wisconsin,
12 F.3d 1396, 1403
(7th Cir.), cert. denied,
SE8 UE, FE Ciera titchcinnteapihinieepiiitt 20, 22
Denius v. Dunlap,
209 F.3d 944, 950 (7th Cir. 2000).......cccccsesccesseen 21,22
Vv
Disesa v. St. Louis Community College,
FOF .36 D2, D3 (COG Cae BIG irda cssinsiccccsnesitibscsoressess 17
Doe v. Washington University,
780 F. Supp. 628, 631 (E.D. Mo. 1991).............csseseee 18
Eiiand v. Wolf,
764 S.W.2d 827, 836 (Tex. App. 1989)...........csseeees 16
Evans v. West Virginia Board of Regents,
165 W.Va. 780, 781, 271
S.B.26 TIE, TOO CRGCD) nctisisssiviscsscditnsiscsecsecnatibalis 6, 12
Frank v. Marquette University,
209 Wis. 372, 377, 245
PEW, TABS EAD ccieneintiitichavicisontitnisibasitnnalcssniblioeliommins 8
Gaspar v. Bruton, ;
513 F.2d 843, 846 (10th Cir. 1975)............scccssereseees 18
Goss v. Lopez,
419 U.S. SES, S73. GDP sisi cccstissintictsitaitnecttadcikes 8, 18
Haberle v. University of Alabama in Birmingham,
803 F.2d 1536, 1539 n. 1
CRB Ci SI icin ssiiicssictinhsinsitibisiciniadipatttainin 11, 17,22
Hall v. University of Minnesota,
530 F. Supp. 104, 107 (D. Minn. 1982)..............:0000 12
Hamil v. Vertrees,
BE RS TT i isiciencaistncsnisiesnisinnanstiaranecesensnins 10, 21
sas a ee
Hammond v. Auburn Univ.,
669 F.Supp. 1555, 1561
(M.D. Ala. 1987) affd mem.,
ee ee ee 11
Hankins v. Temple University,
829 F.2d 437, 444 (3rd Cir. 1987) .........cccccccceseeseeeees 17
Harlow v. Fitzgerald,
4ST UB, GER, SOB Cae ierctntcnntniininncvctistcntansincttiitiane 20
Hennessy v. City of Melrose,
194 F.3d 237, 250-51 (1st Cir. 1999)... cccccccceeees 18
Hines v. Rinker,
667 F.2d 699, 704 (8th Cir. 1981)....................cceeeeeee 16
Hortonville Joint School District
No. 1 v. Hortonville Education Association,
a a ee re intecvtitennnnttsntntiatnnatiiinatiiten 19
Ikpeazu v. University of Nebraska,
773 F.2d 250, 254 (BGs Cir. 196S).........cecccsccsccsccscseses 17
Jones v. Cannon,
174 F.3d 1271, 1288 n. 11
ee nee eee ee 21
Kashani v. Purdue University,
763 F. Supp. 995, 999-1000
RE Fe edith taiccnnetnnsniceeniatstiindiaiaietindadii 16
Keyishian v. Board of Regents,
Se CT vain iiasnitnieaeiicictiiaiitieniaaninliciiains 15
vii
Landstrom v. Illinois Dep't of Children,
892 F.2d 670, 676 (7th Cir. 1990).0.0......ccccccseseesenenees 20
Leukutis v. University of Osteopathic
524 N.W.2d 410, 413 (lowa 1994) .00.........cccsceeseeseees 17
Lipsett v. University of Puerto Rico,
637 F. Supp. 789, 808
(D.P.R. 1986) rev'd on other grounds,
O64 F.26 SEI (let Cas. 19GB) aicccccaccciscsssssctsdisvtecccccssese 18
Lunde v. lowa Board of Regents,
487 N.W.2d 357, 362 (lowa App. 1992).............0000+« 17
Martin v. Helstad,
578 F. Supp. 1473
CUR ee WU OU Pesesesstincticcindienssbdonneiiiectatiabis 6, 8, 12
Martin v. Helstad,
699 F.2d 387, 390 (7th Cir. 1983)...........ccccceceseseeee 5, 11
Mauriello v. U. of Med. & Dentistry of N_J.,
FOL F.2B 4G, S2 C6 Cae: 15GB ancccncesccieccnccccsceccescccceees 11
Nickerson v. University of Alaska, Anchorage,
975 P.2d 46, 52 (Alaska 1999) 00.0.0... ccccesccseeseessenees 11
Osteen v. Henley,
ES P36 ZE8, 206 CPR Chk. 1955) vccccrccisassersescncnsinses 5,21
Powell v. Cooper and Stoudt,
241 Wis. 2d 153, 622
Oi A ih 1
Regents of the University of Michigan v. Ewing,
Ee ee ee tintin dcciheciincintaniernititinces passim
Regents of the University Of California v. Bakke,
GBS CLE, FED, Fee atta tinccttiitintinannbiiblaisessssesincs 15
Richmond v. Fowlkes,
228 F.3d 854, 859 (8th Cir. 2000)..............e eee 11, 16
Rossomando v. Board of Regents of the
University of Nebraska,
2 F.Supp. 2d 1223, 1225-26 (D.Neb. 1998)............... 17
San Antonio Independent Schoo! District v. Rodriguez,
A is es ee seceteinetirnieeninininitetiihtessiiididiniiinanbid 8
Schuler v. University of Minnesota,
788 F.2d 510, 513 n. 6
(8th Cir. 1986), certiorari denied,
SIP UD. TEGO Gar Pictsncccsccncccsccsecesiinitssitin 5, 11, 16, 22
Soong v. University of Hawaii,
72 Haw. 586, 590, 825 ;
P.2d 1060, 1062 (Haw. 1992) .........:sccscsecercereereeee 6, 21
Southworth v. Board of Regents of the
University of Wisconsin System,
Ee rks ey a ecitiictacsninensacnnisitcitnsniinnapnten 15
Stevens v. Hunt,
646 F.2d 1168, 1169 (6th Cir. 1981).......0.000000000.. 5,12
Stoller v. College of Medicine,
562 F.Supp. 403, 412-414
(M.D. Pa. 1983), aff'd without opinion,
resh fe fi fs ls BS rereNeee 5,12
Sweezy v. New Hampshire,
354 U.S. 234, 77 S.Ct. 1203,
5 Sic BORO HOMO ON siscssssnsttitisssibiiiniciahiiiesitieniticusniian 15
Unger v. National Residents Matching Program,
928 F.2d 1392, 1397 (3d Cir. 1991)................. 5, 11,21
Upton v. Thompson, ?
930 F.2d 1209, 1212 CPSs NOPE ic chdbidieisntins 20
Wilson v. Layne,
FP AP OE Cai datinishinssssniniiuaricsbinintsiiaciaeuet 22
STATUTES
AB TB TO seciehinnithsnnntitiitbaia a a 2
SF ain 15 SPE clcrrvinceenindintassnstinestsninneasaenieniasiinaiinaacaa y
No.
In The aint
Supreme Court of the United States
*
ARLENE M. COOPER and CALVIN STOUDT,
Petitioners,
v.
CONNIE G. POWELL,
Respondent.
¢
ON PETITION FOR WRIT OF CERTIORARI TO THE WISCONSIN
SUPREME COURT
¢
PETITION FOR WRIT OF CERTIORARI
4
OPINIONS BELOW
The Wisconsin Supreme Court decision is reported
: and reprinted at App. la-7a. Powell v. Cooper and Stoudt,
241Wis. 2d 153, 622 N.W.2d 265 (2001). The Court of
: Appeals decision is unpublished and reported at 231 Wis.2d
373, 607 N.W.2d 290 (2001). It is reprinted at App. 8a-36a.
The decision of the circuit court is reprinted at App. 37a-48a.
2
JURISDICTION
The decision was entered on February 16, 2001. (App.la)
The Petition is timely. Jurisdiction is invoked under 28
U.S.C. § 1257 (a) (1994). The Wisconsin Supreme Court
found a constitutionally protected property right in
continuing a post-secondary education and denied the
petitioners’ qualified immunity defense. (App.5a, J 12)
The Wisconsin Supreme Court’s decision is a final
judgment. Behrens v. Pelletier, 516 U.S. 299, 307, 308
(1996).
CONSTITUTIONAL PROVISION AND STATUTE
INVOLVED
42 U.S.C. § 1983 provides:
[e]very person who, under color of a
statute, ordinance, regulation, custom, or
usage, of any State..., 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...
Article XIV provides:
[no] State shall deprive any person of
life, liberty or property, without due process
of law...
3
‘STATEMENT OF THE CASE
Respondent Connie G. Powell, a former graduate
student in the counseling and guidance program at the
University of Wisconsin-Stout, brought this action in
Wisconsin circuit court under 42 U.S.C. § 1983 against Dr.
Arlene Cooper and Dr. Calvin Stoudt. (App. 5a ) Dr.
Cooper was an assistant professor of counseling and
psychological services and Dr. Stoudt was the program
director for the Schoo! of Guidance, Counseling and
Psychological Services, at the University of Wisconsin-Stout.
(App. 49a)
As of January 1991, Powell had completed all of the
course work needed for a Master's Degree in Guidance and
Counseling. Powell had a grade point average of 3.887 in all
completed classes and had paid all tuition and fees. The
remaining requirements for obtaining the degree were
participating in a clinical practicum experience, and preparing
the Master's thesis. (App. 51a) As a condition of placement in
the clinical practicum, Drs. Cooper and Stoudt required
Powell to disclose to her clinical practicum supervisor her
manic depressive condition. (App. 52a) Powell refused to
provide that information to the practicum supervisor,
although she had previously revealed her condition to two
professors at the University of Wisconsin-Stout. (App. 5la-
52a) As a result, she was not assigned to a clinical practicum
experience. (App. 52a) She subsequently stopped attending
the University and did not complete the counseling program.
She brought suit against Drs. Cooper and Stoudt, alleging
that her right to due process under the Fourteenth
Amendment was violated by the requirement that she
disclose her manic depressive condition to the practicum
supervisor as a prerequisite of participating in the practicum.
4
(App. 53a) Powell seeks compensatory and punitive
damages, costs, disbursements and attorney's fees. (App. 55a)
Drs. Cooper and Stoudt moved to dismiss the case on
qualified immunity grounds. The circuit court denied the
motion, ruling that Powell had a constitutionally protected
property interest in continuing her graduate school education
and determining that the right was clearly established in
1991 when Powell stopped attending the university.
(App.46a). The Wisconsin Court of Appeals and the
Wisconsin Supreme Court upheld this decision, the latter by
an equally divided vote. (App. 5a, § 12) The case was
remanded to the circuit court for trial on the merits. (App.7a,
{ 19)
REASONS FOR GRANTING REVIEW
Drs. Arlene Cooper and Calvin Stoudt respectfully
request that a writ of certiorari issue to review the decision of
the Wisconsin Supreme Court. That decision recognizes a
constitutionally protected property interest that has never
been established by this Court, and makes available a
substantive due process-standard of review that has not been
mandated in prior case law. Granting certiorari would allow
this Court to address and clarify the important constitutional
questions left unanswered in Board of Curators v. Horowitz,
435 U.S. 78 (1978) and Regents of the University of
Michigan v. Ewing, 474 U.S. 214 (1985), namely, whether
students have a constitutionally protected property interest in
continued enrollment in post-secondary education programs,
and; whether courts can review an academic decision of a
public educational institution under a substantive due process
standard. Granting certiorari would also permit this Court to
overturn the Wisconsin Supreme Court’s erroneous opinion
5
holding that a constitutionally protected property right was
Clearly estabiished in 1991 for qualified immunity purposes.
The erroneous decisions of the Wisconsin Supreme
Court and Court of Appeals were predicated upon this
Court’s decisions in Horowitz and Ewing. In those cases,
this Court assumed, without deciding, the existence of a
constitutionally protected property interest in continuing a
post-secondary education and reached the merits of the
student claims. Horowitz, 435 U.S. at 84, 85; Ewing, 474
U.S. at 223, 224. Subsequent lower court decisions have
frequently followed this Court's approach and assumed the
existence of the protected interest, however, the resulting
decisions demonstrate continuing confusion and division as
to whether the right actually exists.
The uncertainty in the law is reflected in both federal
and state court cases. The Seventh Circuit has assumed that
a property right exists in one case, Martin v. Helstad, 699
F.2d 387, 390 (7" Cir. 1983), and in two others found such a
right not clearly established and an open question in the
circuit. Osteen v. Henley, 13 F.3d 221, 226 (7" Cir. 1993);
Akins v. Board of Governors of State Colleges and
Universities, 840 F.2d 1371, 1376, 1377 (7™ Cir. 1988)
vacated on other grounds, 488 U.S. 920 (1988). The Third
Circuit has rejected the claim as a matter of law in one case,
Unger v. National Residents Matching Program, 928 F.2d
1392, 1397 (3d Cir. 1991), and affirmed it in another. Stoller
v. College of Medicine, 562 F.Supp. 403, 412-414 (M.D. Pa.
1983), aff'd without opinion, 727 F.2d 1101 (3d Cir. 1984).
The Sixth Circuit, however, has found such a right exists and
has been “long recognized.” Stevens v. Hunt, 646 F.2d 1168,
1169 (6th Cir. 1981) Another circuit has assumed the right
exists without deciding the question. See, e.g. Schuler v.
University of Minnesota, 788 F.2d 510, 513 n. 6 (3” Cir.
1986), certiorari denied, 479 U.S. 1056 (1987).
6
State supreme courts that have addressed the issue
are similarly divided. The Hawaii Supreme Court has held
the right is not clearly established under federal qualified
immunity analysis. Soong v. University of Hawaii, 72 Haw.
586, 590, 825 P.2d 1060, 1062 (Haw. 1992). The West
Virginia and Minnesota appellate courts have apparently
recognized a property right. Evans v. West Virginia Board of
Regents, 165 W.Va. 780, 781, 271 S.E.2d 778, 780 (1980);
Abbariao v. Hamline University School of Law, 258 N.W.2d
108, 112 (Minn. 1977).
In Wisconsin the situation is particularly confusing.
Wisconsin's Court of Appeals found a constitutionally
protected property right in Powell, yet found no property
right a year later in a case involving a Ph.D. candidate.
Reidinger v. Board of Regents of the University of
Wisconsin, 2001 WI App 31, 9 6, 622 N.W.2d 770 (Ct. App.
2000) (Unpublished). The Wisconsin Supreme Court
affirmed Powell in a split, three-to-three decision. (App. 5a,
412) Additionally, while the District Court for the Western
District of Wisconsin initially held that a constitutionally
protected property right existed, Martin v. Helstad, 578 F.
Supp. 1473 (W.D. Wis. 1983), the same District Judge, in an
opinion in a subsequent case, ruled the issue an open
question. Shudooh v. University of Wisconsin-Madison et al.,
(Case No. 00-C-0267-C)(W.D. Wis. April 4, 2001.)
(Unpublished) Finally, the Seventh Circuit, as noted
previously, has both assumed the right existed and declared
the matter an open question.
This confusion, coupled with the willingness of lower
courts to assume the existence of a constitutionally protected
property interest and proceed to review academic decisions
on the merits, has encouraged increasing numbers of students
to litigate academic decisions. Despite this Court's repeated
cautions against judicial intervention in the academic
7
ue decision-making process, Horowitz, 435 U.S. at 92, Ewing,
eld 474 U.S. at 225 and 226, universities more and more often
ied find themselves required to defend their academic judgments
w. in court. A decision on the underlying constitutional issues
est left undecided in Horowitz and Ewing would bring clarity to
tly i the law, and could provide guidance on the extent of
l of deference appropriately due to academic decisions,
0); consistent with the First, Fifth and Fourteenth Amendments.
2d Be
Finally, the Wisconsin Supreme Court improperly
denied qualified immunity to Drs. Cooper and Stoudt. The
ng. court's split decision, holding that in 1991 a constitutionally
illy protected property interest in continued enrollment in a post-
rty secondary program was clearly established, is simply
ate. incorrect. The relevant federal case law shows an utter lack
of of a consensus on the issue that entitles the petitioners to
pp. qualified immunity.
yurt | -
Sa, ARGUMENT
em
ally
| F. L. THE WISCONSIN SUPREME
| an : COURT’S HOLDING THAT A
pen | STUDENT HAS A
al., CONSTITUTIONALLY
)1.) PROTECTED PROPERTY
ited INTEREST IN CONTINUING A
red GRADUATE SCHOOL
: EDUCATION ESTABLISHES A
RIGHT THAT HAS NEVER BEEN
wer RECOGNIZED BY THIS COURT.
‘ted
ons The Wisconsin Supreme Court’s decision established
ents a constitutional right not previously recognized by this
ited Court. Indeed, its finding of a clearly established
mic constitutional right to continued post-graduate education
8
appears contrary to this Court's decisions. This Court has
held that an elementary school education is not among the
fundamental rights protected explicitly or implicitly under
the United States Constitution, San Antonio Independent
School District v. Rodriguez, 411 U.S. 1, 34, 35 (1973). One
year later, the Court found a property interest in elementary
and secondary education based strictly on a state statute's
clear guarantee of a free public education, Goss v. Lopez,
419 U.S. 565, 573 (1974). The decision of the Wisconsin
Supreme Court adds to the confusion among lower courts as
to whether such a right exists under the United States
Constitution, and exposes higher education institutions to
attacks on their academic judgments. The grant of the writ
of certiorari would allow this Court to resolve the issue
whether there is a protected property interest in continued
enrollment in a graduate school program, and provide clarity
to the lower courts.
The Wisconsin Supreme Court determined the
existence of a property interest without citation to any
authority or basis in state law. The Wisconsin Court of
Appeals based its determination that the property right
existed on two cases: Frank v. Marquette University, 209 Wis.
372, 377, 245 N.W. 125 (1932) and Martin v. Helstad, 578 F.
Supp. 1473 (W.D. Wis. 183). Frank, however, does not
stand for the proposition that a student has a constitutionally
protected interest in continuing in a program of graduate
study. Frank sued a private university based on a contract
theory. The Wisconsin Supreme Court concluded that a school
could not “arbitrarily or capriciously dismiss a student or deny
him the right to continue his course of study.” Frank, 209
Wis. at 377. Frank relied on Booker v. Grand Rapids Medical
College, 156 Mich. 95, 120 N.W. 589 (1909). In Ewing, this
Court severely eroded Booker, calling it “an antiquated race
discrimination decision” ... “whose holding has since been
overtaken by events”. Ewing, 474 U.S. at 222 n. 7.
!
9
Additionally, there was no state action in Frank, hence there
were no Fourteenth Amendment or other constitutional issues
involved. Frank does not stand for the proposition that a
student has a constitutionally protected state property interest
in continuing a graduate school education. Martin states, with
little elaboration, that there is a property right in continuing in
law school, apparently based on this Court's willingness to
assume the existence of such a right in Horowitz. Martin v.
Helstad, 578 F. Supp. at 1480. As discussed later, the mere
assumption that a right exists does not, of itself, bring that right
into existence.
In this case, the Wisconsin Supreme Court did not fully
develop its analytical basis for concluding that the property
interest exists and its decision appears to depend heavily upon
this Court's assumption in the Horowitz and Ewing cases, that
such a right existed. Yet, as discussed above, in both of those
cases, this Court declined the opportunity to decide the issue.
In Horowitz, a student was dismissed from medical
school due to poor hygiene and tardiness. She sued,
claiming that she had a liberty interest in pursuing her
medical school education, Jd at 82. This Court assumed,
without deciding, that she had a liberty or property interest in
pursuing her education, but upheld the decision of the
university, concluding that, whether or not she had a
constitutionally protected interest, she had received as much
process as was required under the Fourteenth Amendment.
Id. at 84-85.
The Court next considered this issue in Regents of the
University of Michigan v. Ewing, 474 U.S. 214 (1985).
There, the University of Michigan dismissed Ewing from the
medical school program for academic deficiencies. Ewing
contended he had a constitutionally protected property
interest in continued enrollment at the University. He also
ac
10
asserted his dismissal was arbitrary and capricious and
violated a substantive due process right. Ewing, 474 U.S. at
217. Instead of determining whether the procedural and
substantive due process rights existed, this Court accepted
the University’s invitation to “assume the existence of a
constitutionally protected property right in [Ewing’s]
continued enrollment” at the University, noting that “no
party has challenged it.” Ewing, 474 U.S. at 224. Again,
this Court concluded that Ewing’s dismissal was not
arbitrary and capricious. However, the Court questioned
Ewing’s basis for claiming a constitutionally protected
property interest, Jd at 222 n. 7. According to a concurring
opinion by Justice Powell: “[Ewing’s] claim to a property
right is dubious at best.” Ewing, 474 U.S. at 229.
The lack of a ruling from this Court on the
underlying constitutional issues has spawned extensive
litigation of academic decisions and caused confusion in the
lower courts, as illustrated by this case. Lower courts have
generally avoided the issue or assumed the right exists, often
based on the parties’ willingness to concede the existence of
a constitutionally protected property interest under state law,
as in Ewing, 474 U.S. at 224. Or the courts’ assuming the
existence of such a right, for the sake of argument, as in
Horowitz, 435 U.S. at 92. Here, the existence of a property
right and the constitutional protections associated with it are
contested. This case presents the opportunity to settle the
issue and provide guidance to courts, students and academic
institutions across the nation.
A survey of lower court decisions reflects the lack of
clarity or uniformity in analysis. Some courts have assumed
the right exists: Hamil v. Vertrees, 2001 WL 135716 at p. 6
(M.D. Ala. Jan. 10, 2001) (“Every case the court has
uncovered also assumed, without deciding, that ‘a student
who is subject to academic dismissal may maintain a cause
11
of action for the violation of his right to substantive due
process.””... “In short, no court has decided whether a
protected property interest exists in a graduate school
education.”); Martin v. Helstad, 699 F. 2d 387, 390 (7th Cir.
1983) (Court assumed the existence of a property interest
once admitted to law school). Mauriello v. U. of Med &
Dentistry of N.J., 781 F.2d 46, 52 (3d Cir. 1986) (Court
assumed the existence of a constitutional right.); Haberle v.
University of Alabama in Birmingham, 803 F.2d 1536, 1539
n. 1( 11th Cir. 1986) (Court followed Supreme Court’s lead
in Ewing and assumed a protected property interest
existed.); Schuler v. University of Minnesota, 788 F.2d 510,
513, 514, n. 6 (8th Cir. 1986) (Court assumed existence of a
property right.); Hammond v. Auburn Univ., 669 F.Supp.
1555, 1561 (M.D. Ala. 1987) aff'd mem., 858 F.2d 744 (11th
Cir. 1988)(Court assumed a constitutionally protected
property right exists in post-secondary education.”).
Other courts have avoided the issue: Richmond v.
Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000)(“Whether a
student who is subject to academic dismissal may maintain a
cause of action for the violation of his right to substantive
due process remains an open question.”); Nickerson v.
University of Alaska, Anchorage, 975 P.2d 46, 52 (Alaska
1999) (“We do not address the broader issue of whether a
student has a property interest in continued enrollment in a
graduate program....”).
One court rejected the claim as a matter of law:
Unger v. National Residents Matching Program, 928 F.2d
1392, 1397 (3d Cir. 1991) (“We hold Unger’s attempt to
state a claim arising out of a property interest in the pursuit
and continuance of her graduate school medical education
fails as a matter of law”.) Yet a few years later the Third
Circuit affirmed a District Court’s finding that a student had
a constitutionally protected right in the continuation of
12
studies. Stoller v. College of Medicine, 562 F.Supp. 403,
412, (M.D. Pa. 1983), aff'd w/o opinion, 727 F.2d 1101 (3d
Cir. 1984). The Sixth Circuit found a [constitutionally
protected?] right to study medicine “long recognized by the
state of Tennessee.” Stevens v. Hunt, 646 F.2d 1168, 1169
(6th Cir. 1981).
Still other courts have found that there is a property
interest in continuing an education: Anderson v. University
of Wisconsin, 665 F. Supp. 1372, 1396 (1987) (“The Court
does not argue with the plaintiff's contention that a student
has a property interest in continuing education once the
student has begun a course of study.”); Hall v. University of
Minnesota, 530 F. Supp. 104, 107 (D. Minn. 1982) (Right to
continued enrollment in university constitutes a property
right protected by due process clause.); Evans v. West
Virginia Bd. of Regents, 271 S.E.2d 778, 780 (W. Va. 1980)
(Court recognized a medical student’s property interest in
continuation/completion of his medical education, triggering
due process protections.); Stoller v. College of Medicine,
562 F.Supp. 403, 412-414 (M.D. Pa. 1983), aff'd without
opinion, 727 F.2d 1101 (3d Cir. 1984) (Medical student had
a constitutionally protected property right in continuing
education.); Stevens v. Hunt, 646 F.2d at 1169 (“A qualified
property right in studying and practicing medicine has long
been recognized by the State of Tennessee.”’)
The confusion generated by this Court’s assumption
that a property right exists is particularly troublesome in
Wisconsin. For example, in Martin v. Helstad, 578 F. Supp.
at 1480, the District Judge, relying on the United State’s
Supreme Court’s assumption of a property interest in
Horowitz, found that a student had a property interest in
continuing in law school once admitted. The District Judge in
Martin, however, has since changed her mind and recently
acknowledged that no court has decided whether a protected
13
property interest exists in a student’s post-secondary
education. Nevertheless, the District Judge assumed the
student has such an interest that entitles him to substantive
due process. Shudooh v. University of Wisconsin-Madison et
al., (Case No. 00-C-0267-C)(W.D. Wis. April 4, 2001.) (Slip
op, at p. 14) (Unpublished).
The Wisconsin Court of Appeals, relying in part on
Martin v. Helstad, found that Powell had a property interest
in continuing her education. (App. 14a, 15a) Yet a year
later in a case involving a student’s attempt to contest his
dismissal from a graduate program in political science due to
failing his preliminary examination, the Court of Appeals
ruled differently, holding that the student had no property
interest. Reidinger v. Board of Regents of the University of
Wisconsin, 2001 WI App 31, 4 6, 622 N.W.2d 770 (Ct. App.
2000) (Unpublished).
As these cases demonstrate, the question whether
there is ‘a constitutionally protected property interest in
continuing in a graduate program remains unsettled, and is
treated in widely varying ways by the lower courts. Here,
neither the existence of a property right nor the constitutional
protections associated with it are conceded. This case
presents the opportunity to settle the issue. If a student has a
constitutionally protected property interest in a post-
secondary education, courts, students and universities need
to know it. Guidelines on the extent of those rights, along
with the standards to be employed in protecting the rights,
must be established. If, however, such rights do not exist,
courts must cease acting as an appellate branch of colleges
and universities.
14
Il. THE WISCONSIN SUPREME
COURT’S HOLDING, THAT A
GRADUATE STUDENT HAS A
SUBSTANTIVE DUE PROCESS
RIGHT TO REVIEW AN
ACADEMIC DECISION
REQUIRING HER TO REVEAL A
MENTAL ILLNESS TO HER
CLINICAL PRACTICUM
SUPERVISOR, HAS NEVER
BEEN RECOGNIZED BY THIS
COURT AND IS CONTRARY TO
PRIOR DECISIONS OF THIS
COURT.
The Wisconsin Court of Appeals, citing Ewing, found
that Powell had a substantive due process right in continuing
her education. (App. 20a, 21a) The Wisconsin Supreme
Court affirmed, without citation to any authority. (App. 2a, §
2, 5a, 9 12) In Ewing, however, this Court merely assumed
the right existed. Ewing, 474 U.S. at 223. The Court found
that Ewing had received adequate process under a
substantive due process standard. It cautioned that courts
should "show great respect for the faculty's professional
judgment" and should 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." Ewing, 474 U.S. at
225, 227.
In post-Ewing litigation, lower courts have continued
to assume the existence of a substantive due process right to
review academic decisions, and--in doing so--have been
drawn into the very process of second-guessing academic
15
judgments that this Court warned against in Ewing, and,
earlier in Horowitz. Lower courts now frequently engage in
the business of reviewing academic decisions, on the
assumption that there is a substantive due process right to
such review. This injection of judicial scrutiny into the
academic arena, however, is contrary to this Court's
expressed reluctance to intrude on the prerogatives of the
academy, and to principles of academic freedom protected
by the First Amendment.
This Court has a responsibility to safeguard academic
freedom, which is "a special concern of the First
Amendment" and has "transcendent value" to all Americans.
Ewing, 474 U.S at 226; Keyishian v. Board of Regents, 385
U.S. 589 (1967). This Court has frequently cited Justice
Frankfurter's concurring opinion in Sweezy v. New
Hampshire, 354 U.S. 234, 77 §.Ct. 1203, 1 L.Ed.2d 1311
(1957), which described academic freedom as follows:
"It is the business of a university to provide that
atmosphere which is most conducive to speculation,
experiment and creation. It is an atmosphere in
which there prevail "the four essential freedoms" of a
university -- to determine for itself who may teach,
what may be taught, how it shal] be taught, and who
may be admitted to study.’ "
see, e.g., Ewing, n. 12; see also Regents of the University of
California v. Bakke, 438 U.S. 265, 312 (1978) ("The
freedom of a university to make its own judgments as to
education includes the selection of its student body.");
Southworth v. Board of Regents of the University of
Wisconsin System, 120 S.Ct. 1346, 1358 (2000), Souter, J.
concurring ("Our understanding of academic freedom has
included . . . the idea that universities and schools should
16
have the freedom to make decisions about how and what to
teach.”)
aaa
a :
Unfortunately, despite this Court's consistent support
of institutional academic freedom, the lower courts have
routinely used the Court's assumption of the existence of a
substantive due process right to "second guess" academic
decisions. The following cases all involve instances where
courts have intruded on the academic freedom of educational
institutions by reviewing the academic decisions of
professional educators.
Failing grades: Schuler v. University of Minnesota,
788 F.2d 510, 515 (8th Cir. 1986) (reviewing decision to
dismiss student who failed doctoral oral examination);
Anderson v. University of Wisconsin, 665 F.Supp 1372, 1396
(W.D. Wis. 1987) (reviewing decision to deny readmission
to law school after student was expelled for failing to
maintain required grade average); Hines v. Rinker, 667 F.2d
699, 704 (8th Cir. 1981) (reviewing decision to dismiss
medical student who failed internal medicine due to failing
written final examination, failing to properly present a
patient and failing to turn in work on time); Alanis v.
University of Texas, 843 S.W. 2d 779, 788-89 (Tex. App.
1992) (reviewing decision to dismiss medical student who
had missed exams, failed exams, and in three years had not
satisfactorily completed all first year courses); Kashani v.
Purdue University, 763 F. Supp. 995, 999-1000 (N.D. Ind.
1991) (reviewing decision to dismiss from program student
who failed Ph.D. examination twice); Eiland v. Wolf 764
S.W.2d 827, 836 (Tex. App. 1989)(reviewing decision to
dismiss medical student for having five failing grades and
consistently ranking near bottom of class).
Course and curriculum requirements: Richmond v. |
Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000) (reviewing
17
decision of scholastic committee to reject student's proposed
remedial plan and to adopt a committee plan for removing
the student's academic suspension); Shudooh v. University of
Wisconsin — Madison, W.D. Wis. (Case No. 00-C-0267-C
(April 4, 2001)(reviewing claim that oral examination
violated student's rights by failing to ask student about
syntax or a preliminary paper); Disesa v. St. Louis
Community College, 79 F.3d 92, 95 (8th Cir. 1996)
(reviewing decision to not permit student to make up classes
and retake exams) ; Haberle v. University of Alabama in
Birmingham, 803 F.2d 1536, 1540-41 (llth Cir. 1986)
(reviewing decision to require a qualifying examination
before allowing graduate student to embark on dissertation
research and to not permit student a third attempt to pass
qualifying exam); Hankins v. Temple University, 829 F.2d
437, 444 (3rd Cir. 1987) (reviewing decision to terminate
physician from fellowship program at university hospital for
excessive absenteeism, deficient clinical skills and
abandonment of patients).
Clinical placements: Leukutis v. University of
Osteopathic Medicine and Health Sciences, 524 N.W.2d
410, 413 (lowa 1994) (reviewing decision to dismiss medical
student who demonstrated gross lack of clinical and
interpersonal skills during rotations); Jkpeazu v. University of
Nebraska, 775 F.2d 250, 254 (8th Cir. 1985) (reviewing
decision to dismiss pharmacy student due to performance
problems in two clinical clerkships); Lunde v. lowa Board of
Regents, 487 N.W.2d 357, 362 (Iowa App. 1992) (reviewing
decision to dismiss medical student for interpersonal and
performance problems in residency and for failing clinical
rotations); Rossomando v. Board of Regents of the University
of Nebraska, 2 F.Supp. 2d 1223, 1225-26 (D.Neb.
1998)(reviewing decision to dismiss student in postgraduate
orthodontics program for poor clinical performance and
failing to meet requirements for readmission); Clifton-Davis
18
v. State of Oklahoma, 930 P.2d 833,834-35 (1996)
(reviewing decision to dismiss student from therapeutic
recreation specialist program after student failed to complete
internship because two successive agencies suggested she be
removed from their programs.); Gaspar v. Bruton, 513 F.2d
843, 846 (10th Cir. 1975) (reviewing dismissal of nursing
student for incompetent and unsatisfactory performance in
clinical training portion of course); Hennessy v. City of
Melrose, 194 F.3d 237, 250-51 (ist Cir. 1999)(reviewing
decision to drop student from teacher certification program
after incidents arose during a teaching practicum causing
friction with other teachers and raising questions about
student’s ability to function in a public school setting);
Lipsett v. University of Puerto Rico, 637 F. Supp. 789, 808
(D.P.R. 1986) rev'd on other grounds, 864 F.2d 881 (1st Cir.
1988) (reviewing decision to cancel medical student's third-
year surgery residency, based on conclusion that student
would not make a good surgeon because of inability to
follow program’s line of authority and desire to do things her
own way).
Professional educators, not the courts, have the
responsibility to evaluate students and the expertise to do so.
The process is not adversarial but centers around a
continuing relationship between faculty and students, “one
in which the teacher must occupy many roles—educator,
adviser, friend, and at times, parent-substitute.” Horowitz,
435 U.S. at 90, citing Goss v. Lopez, 419 US. at 594.
Professional educators, not the courts, have the duty to
identify any problems that limit a student’s ability to succeed
and pursue ameliorating alternatives. Doe v. Washington
University, 780 F. Supp. 628, 631 (E.D. Mo. 1991). The
duty of courts is mot to second-guess academic decisions of
professional educators, who are entitled to a presumption of
honesty and integrity, unless actual bias, such as personal
animosity, illegal prejudice or a personal or professional
19
stake in the outcome, can be established. Hortonville Joint
School District No. 1 v. Hortonville Education Association,
426 U.S. 482, 497 (1976). Furthermore, courts are not to
expand substantive due process, which has been limited to
matters relating to marriage, family, procreation, and the
right to bodily integrity, because the guideposts for
responsible decision making in this uncharted area are scarce
and open-ended. Albright v. Oliver, 510 U.S. 266, 271-72
(1994).
Unfortunately, the unresolved constitutional issues in
Ewing and Horowitz have led to twenty years of cases
assuming such rights exist; assuming courts are in a better
position than professional educators to make academic
decisions; and in this case, finding the rights actually exist
As a result, courts have expanded substantive due process to
areas beyond which it has traditionally been limited, namely,
marriage, family, procreation and bodily integrity, Albright
v. Oliver, 510 U.S.-at 271-72. It now includes the right to
second-guess grades, the format of examinations (including
questions asked — or not asked - on oral examinations),
clinical skills, policies on make-up tests and performance
evaluations.
Nationwide, students will now attempt to use Powell
as precedent to claim constitutional protections in a variety
of academic decisions, such as grades, examinations,
curriculum requirements, clinical programs, extra-curricular
activities and student evaluations. This decision undermines
the authority of colleges and universities to set their own
standards, select their own student body and make the
routine day-to-day decisions they are uniquely qualified to
do.
20
Il, THE WISCONSIN SUPREME
COURT INCORRECTLY HELD
THAT A CONSTITUTIONALLY
PROTECTED PROPERTY RIGHT
IN CONTINUING IN A HIGHER
EDUCATION PROGRAM WAS
CLEARLY ESTABLISHED IN
1991.
Under the doctrine of qualified immunity, public
officials cannot be held personally liable unless the law was
clearly established. See Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In this case, the lower courts departed from the
repeated holdings of this Court that the law is clearly
established if and only if (a) there is a consensus in the case
law that the defendant’s conduct was unlawful under federal
law, and (b) that consensus was fact-specific and not a
generalized right.
“To prove the presence of a clearly established
constitutional right, the plaintiff must point to ‘closely
analogous cases’ decided prior to the petitioners’ challenged
actions." Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir.
1991) (citation omitted). “[W]hat is required is a "sufficient
consensus," based on all relevant case law, indicating that the
official's conduct was unlawful. Landstrom v. Illinois Dep't of
Children, 892 F.2d 670, 676 (7th Cir. 1990). "[U]nless
plaintiffs can show that a sufficient consensus clearly
established the existence of a violated constitutional right, [that
defendant] will receive qualified immunity from Plaintiffs’
damage claims." Crosetto v. State Bar of Wisconsin, 12 F.3d
1396, 1403 (7th Cir.), cert. denied, 511 U.S. 1129 (1994).
Federal law, which is controlling on the qualified
immunity issue, was not clearly established in 1991 on
21
whether a constitutionally protected property right existed. It
is appropriate to look to U.S. Supreme Court and Seventh
Circuit precedent to determine whether a right was clearly
established. Denius v. Dunlap, 209 F.3d 944, 950 (7™ Cir.
2000) In 1991, this Court had not decided the issue, it
merely assumed such a right existed Horowitz, 435 U.S. at
84, 85, Ewing, 474 U.S. at 223, 224. However, an
assumption of a protected property right is insufficient under
this Court’s qualified immunity analysis to cre: e a clearly
established right. Hamil v. Vertrees, 2001 WL 135716, *9
(M.D. Ala. 2001) citing Jones v. Cannon, 174 F.3d 1271,
1288 n. 11 (11th Cir. 1999); Soong v. University of Hawaii,
72 Haw. 586, 590, 825 P. 2d 1060, 1062 (1992).
Furthermore, the Seventh Circuit had specifically ruled that
such a right was not cleariy established, stating:
We believe that a university administrator, surveying
these cases at the time the alleged activity described
in the complaint took place, would have concluded
that a substantive due process-based right to
continued enroliment in a state-sponsored academic
program was not clearly established. Therefore, the
defendants in this case are protected from an action
for damages by the doctrine of qualified immunity.”
Akins v. Board of Governors, 840 F. 2d 1371, 1376, 1377
(7th Cir. 1988) vacated on other grounds, 488 U.S. 920
(1988) (emphasis supplied). The Seventh Circuit
subsequently acknowledged that the existence of a property
right is still an open question in the circuit. Osteen v. Henley,
13 F.3d 221, 226 (7th Cir. 1993).
Additionally, in 1991, the holdings of the other
federal circuits were mixed. The Third Circuit had rejected
the claim as a matter of law in one case, Unger, 928 F.2d at
1397, and affirmed it in another. Stoller, 562 F.Supp. at 412,
Pp yeas eS ee ee ae er
22
affirmed without opinion, 727 F.2d 1101 (3d Cir. 1984). The
Sixth Circuit, however, had found such a right existed and
was “long recognized.” Stevens, 646 F.2d at 1169. The
Eighth and Eleventh Circuits had assumed the right existed
without deciding the question. See, e.g., Schuler, 788 F.2d at
513 n. 6; Haberle, 803 F.3d at 1539 n. 1.
“A split among courts regarding the constitutionality of
conduct an iogous to the conduct in question is an indication
that the right was not clearly established at the time of the
alleged violation.” Denius, 209 F.3d at 951. The Wisconsin
Supreme Court split evenly on the issue and wrongly denied
the qualified immunity defense. Denius, 209 F.3d at 951. Drs.
Cooper and Stout are being held to an understanding of
constitutional law that the Wisconsin Supreme Court cannot
agree upon. “If judges thus disagree on a constitutional
question, it is unfair to subject [the defendant] to money
damages for picking the losing side of the controversy.”
Denius, 209 F.3d at 951, quoting Wilson v. Layne, 526 U.S.
603 (1999).
The precedent existing in 1991 does not show a
"sufficient consensus" on this issue to established the
existence of a constitutional right. Crosetto v. State Bar of
Wisconsin, 12 F.3d 1396, 1403 (7th Cir.), cert. denied, 511
U.S. 1129 (1994). The Wisconsin Supreme Court erred in
denying Drs. Cooper and Stoudt qualified immunity.
REST AVAILABLE COPY
OR ST PORE ey TNR MS yet y mee Q oy
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23
CONCLUSION
To reduce frivolous litigation and its burden upon |
colleges and universities nationally, and to clarify the state of
the law, the Court should grant a writ of certiorari.
Respectfully Submitted,
JAMES E. DOYLE
Attorney General
MARY BATT* I
Assistant Attorney General
State Bar No. 1017859
Attorneys for Petitioners
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-1001
*Counsel of Record
PP eters
y
;
:
FOE Meee CEE Mae fee Ta ee Pee RR
APPENDIX
Table of Contents
Item Page
Decision of Wisconsin
Supreme Court,
I CIE BF BINED cc sscritessiciteinsncisshaiichtniassannceniianaaibas la
Decision of Wisconsin
Court of Appeals, District IV,
Pe Re GN FID niistiintintsciunicdenretiininisiibiapnnsennniudanaibaia 9a
Decision of Wisconsin
Circuit Court, Branch 17,
No. D7-CV-1151 (illed 12/23/97) ...ccoccosccccccccecsccccncseseseoensooes 4la
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-la-
Supreme Court of Wisconsin
Connie G. POWELL, Plaintiff-Respondent,
v.
Arlene M. COOPER and Calvin Stoudt,
Defendants-Appellants-Petitioners.
No. 98-0012. o—
Argued Sept. 6, 2000.
Decided Feb. 16, 2001.
§1 | PER CURIAM.
Dr. Arlene M. Cooper and Dr. Calvin Stoudt (Drs.
Cooper and Stoudt), faculty at the University of Wisconsin
Stout, seek review of an unpublished decision of the court of
appeals,’ affirming in part an order of the Circuit Court for
Dane County, Paul B. Higginbotham, Judge. The court of
appeals held that Drs. Cooper and Stoudt were not entitled to
dismissal of a suit brought under 42 U.S.C. § 1983? by
Connie Powell (Powell). Powell, who had been a graduate
student at the Stout campus, alleged that actions taken by
Drs. Cooper and Stoudt had deprived her of an interest
protected by the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. Drs. Cooper
' Powell v. Cooper, No. 98-0012, 1999 WL 516756, 1999 Wisc.App.
LEXIS 794 (Wis.Ct.App. July 22, 1999).
? 42 U.S.C. § 1983 provides in part: Every person who, under color of
any statute, ordinance, regulation, custom, or usage, of any State or
Territory or 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 the 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 property proceeding for redress...
-2a-
and Stoudt argue that Powell has not set forth a legally
sufficient complaint alleging a deprivation of a
constitutionally protected interest. Alternatively, Drs. Cooper
and Stoudt contended that they are entitled to qualified
immunity.
q2 In this review we reach two issues. First, the court is
evenly divided upon the question of whether Powell's
complaint alleged the violation of a clearly established
constitutionally protected property right such that defendants
are not entitled to qualified immunity. Accordingly, we
affirm the court of appeals’ conclusion that Drs. Cooper and
Stoudt are not entitled to qualified immunity from Powell's §
1983 claim based upon a deprivation of a property interest in
continuing a course of study.
q3 Second, the court unanimously reverses the court of
appeals’ conclusion that Powell's complaint states a claim
asserting a liberty interest in refusing to unnecessarily
disclose her mental health history. In her complaint, Powell
did not assert a claim based upon a constitutionally protected
liberty interest. Accordingly, we conclude that Powell
waived an assertion of such a claim.
q4 In addition to these two issues, we also address a
procedural question relating to interlocutory appeal from a
circuit court order denying a state official's claim of qualified
immunity in a § 1983 action. The court of appeals concluded
that although it is required to grant such a petition when it is
initiated in a timely manner following a motion for summary
judgment, the court may, in its discretion, grant such
petitions after a motion to dismiss. Powell v. Cooper, No.
98-0012, unpublished slip op. at 16 n. 5, 1999 WL 516756
(Wis.Ct.App. July 22, 1999). We agree. When a petition for
interlocutory review is filed prior to the litigation reaching
the summary judgment stage, the court of appeals may
-3a-
exercise its discretion in determining whether to grant review
of the qualified immunity issue.
I
q5 On motion to dismiss, and for purposes of qualified
immunity analysis, the facts set forth in the pleadings are
accepted as true. Penterman v. Wisconsin Elec. Power Co.,
211 Wis. 2d 458, 463, 565 N.W.2d 521 (1997). In her
amended complaint, Powell asserts that in 1987 she
matriculated into the graduate student program in guidance
and counseling at the University of Wisconsin-Stout. Powell
told her academic advisor, Dr. David Cook, that she suffered
from a manic-depressive disorder. Dr. Cook advised Powell
that her condition would not affect completing the program.
46 Powell fulfilled all the requirements to obtain her
degree, except for completing a practicurn. and master’s
thesis. In December 1990 Powell spoke to Dr. Cooper about
scheduling the practicurn. for the spring of 1991. Powell
informed Dr. Cooper of her manic-depressive disorder.
Subsequently, Dr. Cooper declined to schedule Powell into
the practicum program.
q7 In January 1991 Powell met with Drs. Cooper and
Stoudt. At the meeting, Powell was informed that she would
be permitted to undertake the practicum. if she agreed to
disclose her manic-depressive condition to the site
supervisor. Powell refused to make this disclosure. As a
result, she was not allowed to undertake the practicum and
could not complete her course of study.
48 In January 1997 Powell filed suit against Drs.
Cooper and Stoudt. Powell asserted that the actions by Drs.
Cooper and Stoudt had deprived her of an interest protected
by both the procedural-and substantive aspects of the Due
-4a-
Process Clause of the Fourteenth Amendment to the United
States Constitution. The defendants filed a motion to
dismiss, which was denied by the circuit court. The circuit
court concluded that Drs. Cooper and Stoudt were not
entitled to qualified immunity because in January 1991 the
law was Clearly established that Powell had a constitutionally
protected property interest in continuing her graduate school
program, which could not be denied without a hearing. In
addition, the circuit court held that the actions by Drs.
Cooper and Stoudt were arbitrary and capricious.
q9 Subsequently, Drs. Cooper and Stoudt petitioned for
interlocutory review. The court of appeals granted the
petition and affirmed the circuit court. Drs. Cooper and
Stoudt then petitioned this court to review the decision of the
court of appeals, which was granted.
II
q10 We begin by determining whether the court of
appeals properly concluded that Powell had filed a complaint
alleging a deprivation of both a constitutionally protected
property and liberty interest. Whether a complaint states a
claim upon which relief can be granted is a question of law,
which this court reviews without deference to lower courts.
Weber v. City of Cedarburg, 129 Wis.2d 57, 64, 384 N.W.2d
333 (1986). The court of appeals also concluded that Drs.
Cooper and Stoudt were not entitled to qualified immunity.
Application of the doctrine of qualified immunity is also a
question of law, which we decide independently. Arneson v.
Jezwinski, 225 Wis.2d 371, 592 N.W.2d 606 (1999).
il
411 The Fourteenth Amendment protects certain liberty
and property interests. In this case, the court of appeals
GR SPURNED SER RRR Ihe NNER SHEN Rv cor Relient onnernin , "
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4 4 :
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2.
'
-5a-
determined that Powell's amended complaint alleged a
clearly established property interest in continuing the course
of study she had begun at the university. Powell v. Cooper,
No. 98-0012, unpublished slip op. at 9, 1999 WL 516756
(Wis.Ct.App. July 22, 1999). In addition, the court of appeals
held that Powell had claimed a liberty interest, which it
identified as a privacy right in avoiding unnecessary
disclosure of her mental health history. Jd. at 10. The court
of appeals concluded that Drs. Cooper and Stoudt were not
entitled to qualified immunity because Powell's due process
claims were grounded on clearly established property and
liberty interests. Jd. at 19.
q12 We consider first Powell's assertion that she has a
property interest in continuing her course of study begun at
the university. Drs. Cooper and Stoudt contend that there is
no such constitutionally protected property right and, as a
result, there can be no due process violation. This court is
equally divided on the question of whether Drs. Cooper and
Stoudt are entitled to qualified immunity on this issue.
Justices Ann Walsh Bradley, N. Patrick Crooks and David T.
Prosser would affirm the court of appeals’ conclusion that
such a property right existed at the time in question, was
clearly established, and accordingly the defendants were not
entitled to qualified immunity. Justices William A. Bablitch,
Jon P. Wilcox, and Diane S. Sykes would reverse,
concluding that even assuming such property right existed at
the time, it was not well established and therefore, the
defendants were entitled to qualified immunity. Accordingly,
the decision of the court of appeals concluding that there is a
constitutionally protected property right in continuing her
course of study, and that the defendants were not entitled to
qualified immunity on that issue, is affirmed.
913 We turn next to consider the conclusion by the court
of appeals that Powell sufficiently alleged a clearly
-6a-
established liberty interest in not unnecessarily disclosing her
mental health history. On this issue, we unanimously reverse.
414 It is well established that pleadings are to be liberally
construed. Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis.2d
723, 731, 275 N.W.2d 660 (1979). A claim should not be
dismissed unless it appears to a certainty that no relief can be
granted under any set of facts that a plaintiff can prove in
support of his or her allegations. Id. The court of appeals
construed Powell's complaint as asserting a liberty interest.
However, Powell's complaint does not set forth any
statement concerning a liberty interest, and at oral argument
before this court, counsel for Powell stated that she did not
plead a liberty interest. Under these circumstances, we
concluded that the court of appeals' finding of a clearly
established liberty interest in refusing to unnecessarily
disclose her mental health history must be reversed.
qi5 Finally, the decision of the court of appeals presents
an opportunity for this to clarify the circumstance under
which the court of appeals is required to grant a petition for
interlocutory appeal from a circuit court order denying a
state official’s claim of qualified immunity in a § 1983
action. The court of appeals concluded that under Arneson v.
Jezwinski, 206 Wis.2d 217, 556 N.W.2d 721 (1996)
(hereinafter Arneson I), as clarified in Penterman, that it is
required to grant a petition for interlocutory review of a
denial of qualified immunity when it follows a summary
judgment motion; however, on motion to dismiss the court
may, in its discretion, grant such an appeal if it determines
that review of the qualified immunity issue is not premature.
We agree.
416 In Areson I, we directed the court of appeals to
grant every petition for interlocutory appeal from a circuit
court order denying a state official’s claim of qualified
ho NORTE LUT RDN TEN Bo OE Do gree snc tes sea mamiip onsen ey a+
ate ae
-7a-
immunity in a § 1983 action "so long as the circuit court
order is based on an issue of law, such as whether the federal
right allegedly violated was clearly established at the time
the action was taken....". Arneson J, 206 Wis.2d at 220, 556
N.W.2d 721. When qualified immunity is raised as an
affirmative defense, the plaintiff has the burden of
demonstrating by closely analogous case law that the
defendant violated a clearly established constitutional right.
Penterman, 211 Wis.2d at 469, 565 N.W.2d 521. The
question presented in such a case "is whether a reasonable
state official could have believed his or her act was
constitutional ‘in light of clearly established law and the
information [he or she] possessed’ at the time of the official's
action." Penterman, 211 Wis.2d at 470, 565 N.W.2d 521
(quoting Burkes v. Klauser, 185 Wis.2d 308, 326, 517
N.W.2d 503 (1994)). This inquiry is fact specific and
"focuses on the circumstances with which the official is
confronted.” Jd at 471-72, 565 N.W.2d 521.
917 For the reasons set forth in Arneson I, we continue to
conclude, pursuant to the this court's superintending power
over lower state courts in article VI, section 3 of the
Wisconsin Constitution, that the court of appeals should
grant these petitions when they arise from a summary
judgment order that turns on an issue of law and denies a
claim of qualified immunity. However, when the
interlocutory appeal arises on motion to dismiss, the court of
appeals should exercise its sound discretion in determining
whether or not to grant the petition. In a given case the facts
and circumstances confronting the state official may not be
sufficiently developed on motion to dismiss for the
reviewing court to reach any other conclusion than to affirm
the circuit court's denial of a qualified immunity claim.
918 The primary benefit of qualified immunity is
immunity from suit. Arneson I, 206 Wis.2d at 226, 556
CEE Rio ee A
-Sa-
N.W.2d721. This benefit is lost if a case erroneously
proceeds to trial. However in the proper case, and under the
sound discretion of the court of appeals, allowing the action
to proceed from motion to dismiss to the summary judgment
stage will continue to provide officials with the benefit of
this affirmative defense.
919 We conclude, therefore, that an interlocutory appeal
from a circuit court's denial of qualified immunity shali be
granted when it arises on motion for summary judgment, and
is discretionary under the criteria set forth in Wis. State §
808.03 (2) (1997-98) when it arises from a motion to
dismiss.
The decision of the court of appeals is affirmed in
part, reversed in part, and the cause remanded to the circuit
court.
920 SHIRLEY S. ABRAHAMSON, C.J., did not
participate.
-9a-
Court of Appeals of Wisconsin
Connie G. POWELL, Plaintiff-Respondent,
v.
Arlene M. COOPER and Calvin Stoudt, Defendants-
Appellants.
No. 98-0012.
July 22, 1999.
APPEAL from an order of the circuit court for Dane
County: PAUL B. HIGGINBOTHAM, Judge. Affirmed in
part; reversed in part and cause remanded.
Before DYKMAN, P.J.. VERGERONT and
ROGGENSACK, JJ.
Doctors Arlene Cooper and Calvin Stoudt appeal
from an order of the circuit court denying their motion to
dismiss an amended complaint filed by Connie Powell. We
conclude that Cooper and Stoudt are not entitled to dismissal
based on qualified immunity because Powell sufficiently
alleged a 42 U.S.C. § 1983 claim grounded in procedural and
substantive due process violations, bottomed on a clearly
established property interest in continuing a course of study
and a clearly established liberty interest in refusing to
unnecessarily disclose her mental health history. Regarding
Powell's claim of negligent infliction of emotional distress,
we conclude that the statute of limitations precludes this
claim as presently pled. Therefore, we affirm in part; reverse
in part and remand for further proceedings.
-10a-
BACKGROUND
In the fall of 1987, Powell was admitted to the
graduate program in guidance and counseling at the
University of Wisconsin-Stout.' At that time, Dr. David
Cook was assigned as her academic advisor. Powell told
Cook that she had a history of manic-depressive disorder,
and Cook advised her that it would not affect her completion
of the graduate program at Stout. At that time and until
December 1990, no UW-Stout staff member told Powell that
her mental health history would affect the completion of her
graduate work.
By December 1990, Powell had completed all of the
course work required for a Master's Degree in guidance and
counseling, with the exception of the practicum and Master's
thesis. She spoke with Cooper to schedule her practicum for
the spring of 1991. Upon telling Cooper of her manic-
depressive condition, Cooper refused to assign Powell to a
practicum.
On January 28, 1991, Cooper and Stoudt held a
meeting with Powell during which Cooper told her she
would be allowed to participate in the practicum necessary to
completion of the masters degree program, only if she
disclosed her manic- depressive condition to her practicum
site supervisor. Stoudt knew about and approved of this
requirement and supervised Cooper in offering it to Powell at
the meeting. Powell refused to disclose her mental health
history to her site supervisor and as a result, Cooper and
Stoudt refused to permit her to participate in the practicum
' All of the facts in this opinion are taken from the amended complaint,
which facts, and the reasonable inferences therefrom, are presumed to be
true for purposes of this motion. Penterman v. Wisconsin Elec. Power
Co., 211 Wis.2d 458, 463, 565 N.W.2d 521, 526 (1997).
-lla-
necessary to continuing her course of study. Prior to being
refused admission to the practicum, Powell had a grade point
average of 3.887 in all completed classes, had paid all tuition
and fees, and was a graduate student in good standing.
On January 24, 1997, Powell filed suit under 42
U.S.C. § 1983 alleging that she had constitutionally
protected rights: (1) to continue her graduate program at
UW-Stout; (2) to refuse to unnecessarily reveal her manic-
depressive condition to her practicum site supervisor; and (3)
to a hearing to determine the necessity of the disclosure prior
to precluding her from participating in the practicum. She
also claimed Cooper and Stoudt's decision was arbitrary and
capricious and she alleged the negligent infliction of
emotional distress.
On December 23, 1997, the circuit court denied
Cooper and Stoudt's motion to dismiss Powell's amended
complaint, holding that the defendants were not entitled to
qualified immunity because the law was clearly established
in January of 1991 that Powell had a constitutionally
protected property interest in continuing her graduate school
education, which could not be denied without a hearing. The
circuit court also concluded that Cooper and Stoudt's actions
in refusing to permit Powell to participate in the practicum
were arbitrary and capricious. Additionally, the circuit court
declined to apply the state law defense of discretionary act
immunity and held that the discovery rule tolled the running
of the three-year statute of limitations under § 893.54(1),
Stats. Cooper and Stoudt petitioned for leave to appeal and
we granted their request.
-12a-
DISCUSSION
Standard of Review.
Whether a complaint states a claim upon which relief
can be granted is a question of law, which we review without
deference to the circuit court's decision. Heinrtiz v.
Lawrence Univ., 194 Wis.2d 606, 610, 535 N.W.2d 81, 83
(Ct.App.1995). Whether immunity lies because of qualified
immunity, or whether the complaint provides a statute of
limitations defense on its face, are also questions of law
which we review de novo. Arneson v. Jezwinski, 225 Wis.2d
371, 592 N.W.2d 606, 613 (1999) (citations omitted); Barry
v. Maple Bluff Country Club, 221 Wis.2d 707, 714, 586
N.W.2d 182, 185 (Ct.App. 1998) (citations omitted).
Introduction.
Cooper and Stoudt raise eight issues in their appellate
brief; however, the fourth issue was not raised in their
petition for leave to appeal under § 808.03(2), Stats., nor is it
a subpart of any issue that was set forth in the petition
approved for appeal in our March 23, 1998 order. Because
this issue was not specifically raised and approved for
appeal, we will not consider it in this discretionary appeal.
See Waushara County v. Graf, 166 Wis.2d 442, 451, 480
N.W.2d 16, 19 (1992); Power Sys. Analysis, Inc. v. City of
Bloomer, 197 Wis.2d 817, 821 n. 2, 541 N.W.2d 214, 215 n.
2 (Ct.App.1995).
Qualified Immunity.
Qualified immunity is a doctrine that protects
government officials from civil liability, if the complained of
conduct does not violate constitutional rights which were
-13a-
clearly established. It may be invoked when a federal claim
is made. Penterman v. Wisconsin Elec. Power Co., 211
Wis.2d 458, 469, 565 N.W.2d 521, 528 (1997) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct 2727, 73
L.Ed.2d 396 (1982)). Even though qualified immunity is an
affirmative defense, a plaintiff must be able to demonstrate
by closely analogous case law that the defendant's alleged
conduct constituted a clearly established constitutional
violation at the time the acts occurred. Penterman, 211
Wis.2d at 470, 565 N.W.2d at 529.
When we conduct a qualified immunity analysis
presented through a motion to dismiss, we accept the facts
pled in the complaint as true. Jd., at 463, 565 N.W.2d at 526.
Therefore, at this stage in the litigation, our analysis requires
us to construe Powell's allegations liberally and to view them
in the light most favorable to her. Trial Assocs., Inc. v.
Robinson, 10 F.3d 492, 495 (7th Cir. 1993). Further, the
"possibility that [a defendant] will claim immunity does not
require [a] plaintiff to anticipate and plead around that
defense." Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir.
1991).
1. Clearly Established Constitutional Violation.
Powell's constitutional claim invokes 42 U.S.C. §
1983.7 Section 1983, in and of itself, does not create
substantive constitutional rights; rather, it provides a remedy
? 42 U.S.C § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or 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.
-14a-
for the deprivation of rights established elsewhere.
Chapman v. Houston Welfare Rights Org., 441 U.S. 600,
617-18, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). To state a
cause of action under § 1983, a party must allege that a
person acting under the color of state law deprived that party
of rights, privileges, or immunities protected by the
Constitution or laws of the United States. Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980).
Powell's amended complaint alleges that Cooper was
an assistant professor of counseling and psychological
services at UW-Stout and that Stoudt was the program
director for the School of Guidance, Counseling and
Psychological Services at UW-Stout. Further, she alleges
they "act[ed] under color of statutes, regulations, custom,
policy, and usage of the State of Wisconsin and the
University of Wisconsin system" and that "[eJach of the
defendants herein acted under color of law in depriving the
plaintiff of her rights under the Constitution of the United
States, causing the plaintiff to suffer damage and injury."
Based on these allegations, we conclude that Powell has
satisfied the "under the color of state law" requirement. We
therefore focus our inquiry on whether Powell has
sufficiently alleged a deprivation of any right, privilege, or
immunity secured by the Constitution or laws of the United
States, which right and the deprivation thereof were clearly
established when Cooper and Stoudt's actions occurred.
Powell claims that her right to due process was
violated. Ina § 1983 claim, alleging a violation of due
process that is either procedural or substantive, a plaintiff
must show a deprivation of a constitutionally protected
interest in life, liberty, or property. U.S. CONST. amend.
XIV, § 1; Penterman, 211 Wis.2d at 473, 565 N.W.2d at
530. Powell alleges she had a property interest in continuing
the course ci study she had begun, and she also alleges what
-1Sa-
we construe to be a liberty interest in not unnecessarily
disclosing her mental health history.
a. Property interest.
Property interests are not created by the Constitution,
but rather, are determined exclusively under state law.
Arneson, 225 Wis.2d at ----, 592 N.W.2d at 613. Therefore,
we must determine whether Powell has sufficiently alleged
that she had a constitutionally protected property right under
state law to complete her graduate: program at UW-Stout.
Penterman, 211 Wis.2d at 480, 565 N.W.2d at 533 (citing
Riedy v. Sperry, 83 Wis.2d 158, 164, 265 N.W.2d 475, 478-
79 (1978)).
In support of her contention, Powell has alleged that
at the beginning of her graduate course of study she
disclosed her mental health history to Cook, her academic
advisor, and was told that it would not affect her completion
of the program; that she achieved a 3.887 grade point
average for all courses taken; that she paid all tuition and
fees; that she was a student in good standing; and that she
borrowed substantial sums of money to enable her to pursue
her course of study. She alleges that Cooper and Stoudt
wrongfully denied her the opportunity to continue in the
graduate program when they refused to assign her to a
practicum,
which was necessary to completion of her course of study.
We conclude that Powell's complaint contains more than
mere conclusory allegations that she had a property right.
And as was done in Riedy, Powell has alleged particularized
facts demonstrating a property right. That property interest
could have arisen through promissory estoppel or a contract
with UW-Stout.
aa...
-16a-
Several cases interpreting Wisconsin law had clearly
established a constitutionally protected property interest in
continuing a course of study prior to the conduct of which
Powell complains. As early as 1932 in Frank v. Marquette
Univ., 209 Wis. 372, 377, 245 N.W. 125, 127 (1932), the
supreme court recognized a property interest in the
continuance of a college education, holding that
[t]he law is apparently well settled that a
university, college, or school may not
arbitrarily or capriciously dismiss a student or
deny to him the right to continue his course of
study therein. So long as they act in response
to sufficient reasons and not arbitrarily or
capriciously their acts may not be interfered
with by the courts.
Id. While not specifically referred to as a property interest in
Frank, the court phrased the claim as one "to compel the
defendant university specifically to perform its contract with
[Frank].” Jd. at 377, 245 N.W. at 126. Based upon that
claim, the court held that Frank had the right to continue in a
course of study, a right that was protected from arbitrary and
capricious state action.
In Martin v. Helsted, 578 F.Supp 1473 (W.D.Wis.
1983), the Federal District Court for the Western District of
Wisconsin addressed a § 1983action alleging that the
University of Wisconsin Law School violated Martin's due
process and equal protection rights by dismissing him for
lying about criminal convictions on his law school
application. In analyzing the procedural due process claim,
the court concluded that "[c]ourts and state law recognize a
property interest in continuing education once a student has
begun a course of study." Jd. at 1480. Even though Martin
had only recently been accepted into law school, the court
EEE
a es
-17a-
nevertheless concluded that he enjoyed a property interest in
continuing his education, that was protected by some degree
of due process. Jd. at 1482. Additionally, in Anderson v.
University of Wisconsin, 665 F.Supp 1372, 1396 (W.D.Wis.
1987), aff'd,841 F.2d 737 (7th Cir.1988), the court confirmed
that a student has a property interest in continuing education
once the student has begun a course of study. We therefore
conclude that Powell alleged sufficient facts to establish that
she had a clearly established property interest in continuing
her course of study.
b. Liberty interest.
Powell alleges a constitutional violation because
Cooper and Stoudt required her to disclose her mental health
history to her practicum supervisor as a condition precedent
to continuing in her graduate course of study. We construe
this to be a claimed violation of a liberty interest.’
Liberty interests may arise under either federal or
state law. For example, the Fourteenth Amendment of the
United States Constitution protects an "individual interest in
avoiding disclosure of personal matters." Hillman v.
Columbia County, 164 Wis.2d 376, 400 474 N.W.2d 913,
922 (Ct.App.1991) (citing Whalen v. Roe, 429 U.S. 589,
599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). This personal
liberty interest arises from a "guarantee" under federal law,
of certain areas or "zones of privacy." Borucki v. Ryan, 827
F.2d 836, 839 (1 st Cir.1987) (citing Roe v. Wade, 410 US.
* The dissent takes issue with our giving a label to what has been alleged,
but in a motion to dismiss, the movant can prevail only if there is no way
in which the pleadings can be construed to state a claim for relief.
Heinritz v. Lawrence Univ., 194 Wis.2d 606, 610-11, 535 N.W.2d 81, 83
(Ct.App. 1995). Therefore, in order to analyze the motion before us, we
must articulate in terms of potential legal claims the facts which have
been pled.
-18a-
113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). The privacy
rights that are protected by the Constitution are "limited to
those which are 'fundamental' or ‘implicit within the concept
of ordered liberty’ ....". Borucki, 827 F.2d at 839 (citations
omitted).
In Wisconsin, the legislature has also recognized a
right of privacy by creating § 895.50, Stats. Wisconsin courts
have reviewed claims for relief based on alleged violations
of that statute and on alleged violations of substantive due
process grounded in the right of privacy protected by the
Fourteenth Amendment. See Zinda v.Louisiana Pacific
Corp., 149 Wis.2d 913, 440 N.W..2d 548 (1989); Hillman,
164 Wis.2d at 400, 474 N.W.2d at 922. Furthermore, courts
in other jurisdictions have recognized a constitutionally
protected privacy right in not unnecessarily disclosing
mental health information. See Daury v. Smith, 842 F.2d 9,
13-15 (1st Cir. 1988) (recognizing the right of privacy in
avoiding disclosure of psychiatric records); National Transp.
Safety Bd. v. Hollywood Mem'l Hosp., 735 F. Supp. 423, 424
(S.D.Fla.1990) (concluding that avoiding disclosure of
psychiatric records falls within the sphere of constitutionally
protected privacy); McKenna v. Fargo, 451 F.Supp. 1355,
1379-81 (D.N.J.1978) (recognizing a constitutional privacy
right extends to emotional and mental conditions). Therefore,
we conclude that Powell had a clearly established liberty
interest in not unnecessarily disclosing her mental health
history.
* The dissent disputes that Powell has any such privacy right because she
filed this lawsuit, thereby making her mental health history public.
However, the same statement could be made about any plaintiff who
seeks to protect a personal right of privacy. Additionally, the dissent's
position is undermined by the legislature's enactment of § 895.50, Stats.;
this court's decision in Hillman v. Columbia County, 164 Wis.2d 374,
400, 474 N.W.2d 913, 922 (Ct.App.1991); and the UnitedStates Supreme
-19a-
2. Procedural Due Process.
Once a property or a liberty interest has been
established, it may not be denied without procedural due
process. Goss v. Lopez, 419 U.S. 565, 577, 95 S.Ct. 729, 42
L.Ed.2d 725 (1975); Arneson, 225 Wis.2d at ----, 592
N.W.2d at 619. However, dismissal of Powell's procedural
due process claims are appropriate if "the procedures
attendant upon the deprivation of [her] interest were [not]
clearly established ..., such that reasonable officials in the
defendants' positions would [not] have been aware their
actions violated" Powell's rights. Arneson, 225 Wis.2d at ----,
592 N.W.2d at 615-16.
In determining what procedure was clearly due in
1991, we examine United States Supreme Court, United
States Circuit Court and United States District Court
opinions because, even though only Supreme Court opinions
can establish the law, the opinions of the circuit and district
courts give us the shape of the law that has been established.
"'A ‘sufficient consensus based on all relevant case law,
indicating that the officials’ conduct was unlawful’ is
required.’ " Arneson, 225 Wis.2d at ----, 592 N.W.2d at 615
(quoting Henderson v. DeRobertis, 940 F.2d 1055, 1058-59
(7th Cir. 1991) (further citations omitted)). The
determination of what type of process should have been
accorded requires the balancing of three factors:
‘First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest through
procedures used, and the probable value, if
any, of additional or substitute procedural
Court's decision in Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869,
51 L.Ed.2d 64 (1977).
-20a-
safeguards; and finally, the Government's
interest.’
Arneson, 225 Wis.2d at ----, 592 N.W.2d at 620-21 (quoting
Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976). Furthermore, a determination of what
kind of process is due depends on whether Cooper and
Stoudt's refusal to assign Powell to a practicum was an
academic decision, grounded in Powell's failure to meet one
of the academic criteria for continuing in graduate school, or
whether it was a disciplinary action, imposed as a
consequence of Powell's refusal to disclose her mental health
history to her practicum site supervisor, as she was asked to
do. See Board of Curators of Univ. of Mo. v. Horowitz, 435
US. 78, 87, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).
Here, Powell alleges she was given no oral or written
notice of the basis, whether academic or disciplinary, for
refusing to permit her to participate in the practicum, or for
requiring the disclosure of her mental health history to the
practicum supervisor. Additionally, she was not given a
hearing. Therefore, because there is no showing in the
amended complaint of any procedural due process accorded
Powell and because there are too many factual inquiries that
must be concluded before we can determine what procedure
was due, we conclude Powell's procedural due process
claims should not be dismissed based on qualified immunity.
3. Substantive Due Process.
Powell also alleges a violation of substantive due
process, claiming that Cooper and Stoudt's actions were
arbitrary and capricious. As in claims of procedural due
process violations, substantive due process claims must be
bottomed on an alleged deprivation of a liberty or a property
interest protected by the Constitution. Peterman, 211 Wis.2d
i
-2la-
at 480, 565 N.W.2d at 533. However, substantive due
process protects individuals from arbitrary, wrongful actions
regardless of the process afforded prior to the deprivation.
Id. As the Supreme Court has said "the exercise of power
without any reasonable justification in the service of a
legitimate governmental objective" is the touchstone of a
substantive due process violation. County of Sacramento v.
Lewis, 523, U.S. 833, 118 S.Ct. 1708, 1716 140 L.Ed.2d
1043 (1998).
The criteria used to decide what is impermissibly
arbitrary differ, depending on whether the complained of
action is legislative or the specific act of a governmental
officer. Jd. When it is the act of government officers, as in
the case at bar, " ‘substantive due process’ prevents the
government from engaging in conduct that ‘shocks the
conscience,’ ... or [conduct which] interferes with rights
‘implicit in the concept of ordered liberty.’ " Jd at 1717
(quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct.
205, 96 L.Ed. 183 (1952) and Palko v. Connecticut, 302 U.S.
319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
Here, the liberty interest that Powell asserts in
refusing to unnecessarily disclose her mental health history
is based upon her personal right of privacy, which the
Supreme Court has established is grounded in the right of
privacy, implicit in the concept of ordered liberty. See
Whalen, 429 U.S. at 599. Therefore, Cooper and Stoudt may
not interfere with Powell's liberty interest by requiring
disclosure of her mental health history unless, on balance,
the government's interest in disclosure outweighs Powell's
interest in maintaining the privacy of this personal
information. See Hillman, 164 Wis.2d at401, 474 N.W.2d at
922 (citations omitted). When the balancing of interests is
required, a plaintiff faces a high, but not an insurmountable,
hurdle in meeting the burden that a defense of qualified
immunity invokes. Arneson, 225 Wis.2d at ----, 592 N.W.2d
-22a-
at 621. Because we review only the amended complaint in
this motion to dismiss, we have nw information before us on
the governmental interest in disclosure and whether that
interest would be sufficient to override Powell's liberty
interest. Because this is a fact- intensive determination not
appropriately made in a motion to dismiss, we conclude
Powell's substantive due process claim relative to her liberty
interest should not be dismissed.
On the other hand, the property right Powell asserts
in continuing her course of study would be subject to the
"shocks the conscience" standard in a substantive due
processschallenge. Negligent conduct is insufficient, as a
matter of law, to shock the conscience, but conduct that is
intended to injure in some way "unjustifiable by any
government interest" will generally be sufficient to satisfy
that standard. County of Sacramento, 118 S.Ct. at 1718. The
third category of conduct, that of deliberate indifference,
falls in between the two extremes, and many substantive due
process claims are analyzed with reference to this category
of conduct. Jd. However, the Supreme Court has instructed
that:
Deliberate indifference that shocks in one
environment may not be so patently egregious
in another, and our concern with preserving
the constitutional proportions of substantive
due process demands an exact analysis of
circumstances before any abuse of power is
condemned as conscience-shocking.
Id. at 1718-19.
A substantive due process claim, based on a property
right which arose in an academic setting, was examined in
Regents of Univ. of Misc. v. Ewing, 474 U.S. 214, 106 S.Ct.
507, 88 L.Ed.2d 523 (1985). There, Ewing had been enrolled
-23a-
in a special six-year program known as "Inteflex," which was
designed to lead to a Doctor of Medicine degree, as well as
an undergraduate degree. Part of the program required
students to pass a test known as the NBME Part I, which
Ewing failed. Ewing asked to repeat the exam, but after
repeated hearings, the University remained firm in its
decision denying his request. There was no question that the
record conclusively showed Ewing had received ample
procedural due process. Rather, the question was whether
"the University acted arbitrarily in dropping Ewing from the
Inteflex program without permitting a reexamination."
Because Ewing had failed an exam and because the
University had thoroughly reviewed his entire academic
record and based its decision refusing to permit him to retake
the exam on his overall academic performance, the Court
characterized the decision as a "genuinely academic
decision." Once that determination had been made the Court
opined:
When 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. at 225 (citation and footnote omitted).
However, if the decision is disciplinary, a substantive
due process claim may stand on different footing in an
academic setting, as does a claim of the denial of procedural
due process. See Board of Curators of Univ. of Mo., 435 U.S.
at 87.
-24a-
There is no allegation in the amended complaint that
would cause us to conclude that Cooper and Stoudt intended
to harm Powell when they refused to assign her to a
practicum. Therefore, in order for a substantive due process
claim to lie in regard to Powell's asserted property right to
continue in her graduate course of study, Powell must be
able to prove that Cooper and Stoudt's refusal to assign her to
a practicum was done with deliberate indifference to her
rights. See County of Sacramento, 118 S.Ct. at 1718-1.
However, this is not a determination that can be made in the
course of a motion to dismiss becauseit is fact-driven.
Therefore, we conclude that Powell's substantive due process
claim grounded in her property interest in continuing in her
graduate course of studies should not be dismissed.°
Statute of Limitations.
Cooper and Stoudt argue that Powell's claim for
negligent infliction of emotional distress is barred by the
* When Cooper and Stoudt brought their petition for interlocutory review,
Powell agreed that we were obliged to grant it for the issue of qualified
immunity due to the supreme court's decision in Arneson v. Jezwinski,
206 Wis.2d, 216, 556 N.W.2d 721 (1996\Arneson I ). Additionally,
when we granted the petition, we too read Armeson I as requiring us to
grant the petition in regard to the issue of qualified immunity. However,
upon further reflection, we read Arneson I, as clarified by a subsequent
discussion in Penterman, 211 Wis.2d at Wis.2d at 463, 565 N.W.2d at
526, as requiring us to grant such petitions only when they follow a
summary judgment motion, and that in our discretion, we may grant
them after a motion to dismiss, if we determine that a decision on the
issue of qualified immunity is not premature. We note that in most cases
it is better to have the trial court decide such a defense through a motion
for summary judgment, after the facts have been further developed, as it
would have been in this case. However, because the parties have briefed
the issues, because Powell has never argued that the appeal of the issue
of qualified immunity is premature, and because the statute of limitations
question was ripe for review, we have decided the appeal rather than
dismissing it as improvidently granted.
-25a-
statute of limitations because she did not plead that she
discovered her emotional injury within three years of the
filing of this lawsuit, and in the alternative, because the
discovery rule does not apply to Powell's claim. Powell
contends that the discovery rule applies to the accrual of her
claim, and that there is no reason not to infer from the
pleadings that her claim accrued within three years of the
commencement of this action.
Because this affirmative defense is presented to us on
a motion to dismiss, the only facts we consider are those
presented on the face of the amended complaint,° and the
reasonable inferences therefrom. Peters v. Peters Auto
Sales, Inc., 37 Wis.2d 346, 348, 155 N.W.2d 85, 86 (1967).
The statute of limitations for a claim of negligent infliction
of emotional distress is three years. Section 893.54(1), Stats.
The three-year period begins on the date that the cause of
action accrues. Pritzlaff v. Archdiocese, 194 Wis.2d 302,
312, 533 N.W.2d 780,784 (1995). "[A] cause of action
accrues when there exists a claim capable of enforcement, a
Suitable party against whom it may be enforced, and a party
with a present right to enforce it." Jd. at 315, 533 N.W.2d at
785 (citations omitted). "A party has a present right to
enforce a claim when the plaintiff has suffered actual
damage, defined as harm that has already occurred or is
reasonably certain to occur in the future." Jd.
While the cause of action usually accrues on the date
of the alleged negligent conduct, "under some circumstances,
public policy dictates that the date that a cause of action
accrues [may] be well after the date of the act that caused
harm." Jd. at 312, 533 N.W.2d at 784. Those circumstances
are outlined in the judicially created discovery rule which
° Because Powell filed a complaint and an amended complaint, we have
reviewed both documents.
-26a-
"tolls the statute of limitations until the plaintiff discovers or
with reasonable diligence should have discovered that he or
she has suffered actual damage due to wrongs committed by
a particular, identified person." Jd. at 312, 533 N.W.2d at
785. Further, a "cause of action does not accrue until the
nature of the injury and the cause-- or at least a relationship
between the event and injury--is or ought to have been
known to the claimant." Borello v. U.S. Oil Co., 130 Wis.2d
397, 406-07, 388 N.W.2d 140, 144 (1986); see also Bowen v.
Lumbermens Mut. Case. Co., 183 Wis.2d 627,632, 517
N.W.2d 432, 434 (1994); Hammer v. Hammer, 142 Wis.2d
257, 264, 418 N.W.2d 23, 26 (Ct.App.1987).
The record reflects that Powell commenced this
action by the filing of a summons and a complaint on
January 24, 1997. An amended complaint was filed June 30,
1997. In the amended complaint, she alleges that, "as a result
of the defendants’ conduct in denying plaintiff the
opportunity to complete her graduate school program” she
"did suffer physical injury and emotional distress causing a
disabling emotional response to defendants’ conduct,
resulting in the plaintiffs’ (sic) inability to function in other
relationships, which was a direct and proximate result of the
defendants conduct herein." Powell does not identify when
she discovered her emotional injury or even that its
discovery was delayed beyond January 28, 1991, when
Powell states Cooper and Stoudt refused to permit her to
participate in the practicum necessary to the completion of
her graduate course of study.
The circuit court inferred from the amended
complaint that Powell's emotional distress did not become
apparent to her or she did not connect her emotional distress
to the alleged wrongs of Cooper and Stoudt until some time
after she left the university. However, there is nothing within
the four corners of the amended complaint which so states,
-27a-
or even so implies. After reviewing the amended complaint,
one could not reasonably believe that Powell's injury, or
knowledge of the cause of her injury, was delayed until at
least January 25, 1994,’ or was delayed at all. Therefore,
because § 893.54(1), Stats., requires that actions for
negligent infliction of emotional distress be commenced
within three years of the date when the claim arose, and
because the amended complaint alleges that the last wrongful
act occurred on January 28, 1991 and does not allege any
delay in Powell's discovery of her tort claim, we conclude
that it establishes a statute of limitations defense on its face
and her tort claim must be dismissed. If, however, there are
any facts within Powell's knowledge which could have been
pled which would show that her tort claim accrued no earlier
than three years before she commenced this action, the
circuit court may, in the exercise of its discretion, permit her
to amend the pleadings. Accordingly, we reverse the circuit
court's determination on this issue. Additionally, because of
our decision in this regard, it is not necessary for us to
address the defense of discretionary act immunity which was
also aimed at Powell's tort claim.
CONCLUSION
Cooper and Stoudt are not entitled to dismissal of
Powell's 42 U.S.C. § 1983 claims based on qualified
immunity because Powell has sufficiently alleged a § 1983
claim grounded in procedural and substantive due process
violations, including a clearly established property interest in
continuing a course of study and a clearly established liberty
interest in refusing to unnecessarily disclose her mental
health history. Regarding Powell's claim of negligent
’ This is the earliest date on which Powell's claim could have accrued and
still be preserved by the commencement of this action on January 24,
1997.
-28a-
infliction of emotional distress, we conclude that the statute
of limitations precludes this claim as presently pled.
Therefore we affirm in part; reverse in part and remand for
further proceedings.
By the Court.-- Order affirmed is part; reversed in
part and cause remanded.
Recommended for publication in the official reports.
DYKMAN, P.J., (dissenting).
In a case which all panel members agree should not
have been taken on interlocutory appeal because of
incomplete facts, we learn that the United States Constitution
prohibits schools from requiring students to tell a teacher
about a personal matter the student has already voluntarily
divulged to others at the school. This result is much
influenced by procedure--we are reviewing the denial of a
motion to dismiss. As a result, we consider only whether
Powell's complaint states a claim. On the thin record
presented, and without the reasons for the school's direction
to the student, the majority concludes that Powell's complaint
survives the school's motion to dismiss. The lesson to be
learned is that we should usually deny requests for
interlocutory appeals from orders denying motions to
dismiss, and wait until the matter is more completely
presented on summary judgment. Having so concluded, I
would dismiss this appeal as improvidently granted.'
' I agree with the majority's conclusion that Arneson v. Jezwinski, 206
Wis.2d 217, 556 N.W.2d 721 (1996), as clarified in Peterman v.
Wisconsin Elec. Power Co., 211 Wis.2d 458, 565 N.W.2d 521 (1997),
only requires us to grant petitions for interlocutory review of qualified
immunity issues when they follow a summary judgment motion.
Although we have the discretion to grant such petitions after a motion to
dismiss, to do so here was premature. Neither the majority nor I can
-29a-
Failing to attract a second vote to dismiss, I will
consider the issues on the record presented. I agree with the
general principles from which the majority reasons. The
Federal Constitution recognizes a right of privacy. See
Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct.
1678, 14 L.Ed.2d 510 (1965). The Due Process Clause
protects students’ rights to continue their education once they
have begun a course of study. See Goss v. Lopez, 419 U.S.
565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). But the cases
upon which the majority relies involve students who have
been expelled or disciplined by the schools they attended.
Nothing of the sort happened to Powell. The University of
Wisconsin did not discipline Powell or expel her. She quit
the University. She failed to complete a practicum, and she
did not write a Master's thesis. Quitting a teaching position
and then suing for damages was an unsuccessful tactic in
Lyons v. Sullivan, 602 F.2d 7 (1st Cir. 1979), and it should
fare no better here.
The majority deems the issue in this case to be
"whether Powell has sufficiently alleged that she had a
constitutionally protected property night under state law to
complete her graduate program." If that were the real issue,
this case would be decided by a unanimous panel. Goss
recognizes that right. The real issue is whether Powell has a
constitutional right not to divulge the existence of her bipolar
disorder to her practicum instructor, though she revealed the
illness to others at the university. Thus, for me, cases such as
predict the result when the reasons for requiring Powell to divulge her
bipolar disorder to another are known. There is nothing stopping the
State from now bringing a motion for summary judgment, alleging those
reasons, and if unsuccessful, bringing another interlocutory appeal, which
we must accept. I do not interpret Arneson and Penterman, read together,
as permitting the State to take two interlocutory appeals in cases such as
this.
-30a-
Frank v. Marquette University, 209 Wis. 372, 245 N.W. 125
(1932), Martin v. MHelstad, 578 F.Supp. 1473
(W.D.Wis.1983) and Anderson v. University of Wisconsin,
665 F.Supp. 1372 (W.D.Wis.1987), aff'd, 841 F.2d 737 (7th
Cir. 1988), are unhelpful. In Frank, the plaintiff was
expelled. Frank, 209 Wis. at 374, 245 N.W. at 125. He sued
the university, and attempted to discover other students’
records to see if he was expelled for actions for which others
were not expelled. See Jd. at 373, 245 N.W. at 125. The court
considered Frank's contention that he was entitled to the
equality >rovisions of the federal and state constitutions, and
concluded: "Counsel cites no authority to support his
contention, and we doubt that any court has ever
substantially so held." Jd at 378, 245 N.W. at 127. In
Martin, a student expelled for lying on his application to the
school sued, claiming violations of his due process and equal
protection rights. Martin, 578 F.Supp. at 1475-79. The court
concluded that the plaintiff had a property interest in
continuing his education, and therefore a procedural due
process right to explain his side of the situation. See Jd. at
1481-82. I agree with this settled law, but it hardly helps
decide whether Powell has a constitutional right not to
divulge her bipolar disorder to her practicum instructor.
Anderson is similar to Martin, except that the plaintiff in
Anderson asserted a constitutional right to be re-admitted to
the University of Wisconsin Law School after being told that
he could not be re-admitted because of his poor grades.
Anderson, 665 F.Supp at 1390. The plaintiff in Anderson
asserted much of what Powell asserts; that she has a
constitutional right to continue her education. The district
court in Anderson responded to this assertion:
The Court does not argue with the plaintiff's
contention that a student has a property
interest in continuing education once the
student has begun a course of study.
-3la-
However, the Court believes that plaintiff's
contention misses the point. The issue in this
case is whether a student who is expelled
from school for failing to maintain a required
grade average has a property interest in being
readmitted to school. Plaintiff has submitted
no state statute, university rule, or any other
basis that would suggest that a student who is
expelled from school for failing to maintain a
required grade average has a property interest
in a continuing education. /d. at 1396.
I believe that the majority opinion should analyze
whether Powell has a property right to refuse to tell her
practicum instructor of her bipolar disorder. Instead, the
majority analyzes whether a student has a property right in
continuing his or her education. Of course, the answer to that
is "Yes," but that leaves the real question unanswered.
Next, the majority inquires whether Powell has a
liberty interest in not disclosing mental health information.
This is the first mention of a liberty interest that has occurred
in this case. Powell's complaint nowhere asserts anything
concerning a liberty interest, though it spends three
paragraphs asserting the existence of a property right, the
deprivation of a property right and the violation of a property
right. There is no indication that anyone asserted or even
discussed liberty interests in the trial court. The trial court's
decision fails to mention the term "liberty," though the words
"property interest” are used thirteen times in its thirteen-page
decision. "Liberty" is absent from the words found in the
appellant's brief, and the respondent never uses that word or
analyzes an alleged liberty interest in the brief she filed.
However, her brief uses the term "property interest" or
"property right” eighteen times in its twenty-three pages. The
majority "construes" Powell's complaint to allege a liberty
2A AE MRE AP 988 a
-32a-
interest in not unnecessarily disclosing her mental health
history. One could construe a hot dog to be a porterhouse
steak by saying so, but I cannot see how Powell's total
indifference for liberty interests in the trial court and here
can be construed as an assertion that she has been deprived
of a liberty interest.
Appellate courts do not ordinarily become advocates
for either side of a case. We are ill advised to perform
counsel's task. See Zintek v. Perchik 163 Wis.2d 439, 482,
471 N.W.2d 522, 539 (Ct.App.1991), overruled on other
grounds by Steinberg v. Jensen, 194 Wis.2d 439, 534
N.W.2d 361 (1995). "We cannot serve as both advocate and
judge." State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d
633, 642 Ct.App.1992). We are not to develop an appellant's
argument. See State v. West, 179 Wis.2d 182, 195-96, 507
N.W.2d 343, 349 (Ct.App.1993), aff'd, 185 Wis.2d 68, 517
N.W.2d 482 (1994). We have been told that "[o]ne of the
rules of well nigh universal application established by courts
in the administration of the law is that questions not raised
and properly presented for review in the trial court will not
be reviewed on appeal." Vollmer v. Luety, 156 Wis.2d 1, 10,
456 N.W.2d 797, 802 (1990) (quoting Cappon v. O'Day, 165
Wis. 486, 490, 162 N.W. 655, 657 (1917)). And "skewing
normal procedure to protect ... pro se litigants from
inadvertently forfeiting their rights" is a procedure which
applies only to pro se prisoners. Waushara County v. Graf,
166 Wis.2d 442, 451, 480 N.W.2d 16, 19 (1992). Clearly, we
should not do so when a party is represented by counsel.
I agree that motions to dismiss are to be liberally
construed, and that a claim will only be dismissed if the
plaintiff cannot recover under any circumstances. See
Heinritz v. Lawrence University, 194 Wis.2d 606, 610-11,
535 N.W.2d 81, 83 (Ct.App.1995). I do not agree that this
makes us a surrogate for plaintiff's counsel. I know of no
-33a-
case holding that a plaintiff may file a complaint, and when
faced with a motion to dismiss, ask the trial court to find him
or her a cause of action, and if unsuccessful, ask this court
and the supreme court to do likewise. We expect a litigant
faced with a motion to dismiss to tell the court by brief or
oral argument what claims he or she is making. Neither trial
nor appellate courts should be required to search all possible
areas of Wisconsin law to see whether a plaintiff might have
pled a cause of action. Concepts of waiver should and do
prevent this from becoming a successful maneuver.
xxevere vinnstipcliptediealgalmesiitiin pn iil ar wiih inate talon rin
This is what we concluded in State v. Bollig,
222 Wis.2d 558, 587 N.W.2d 908
(Ct.App.1998). There, Bollig filed a motion to
dismiss the civil commitment proceedings
against him. See Jd. at 562, 587 N.W.2d at
909. The State failed to make two arguments
in the trial court which it made for the first
time on appeal. Sze Id. at 564, 587 N.W.2d at
910. We gave the State's newly made
arguments no credence: Arguments that are
raised for the first time on appeal by an
appellant are deemed waived...
The State did not ... contend that Mochalski
was a de facto special prosecutor.... De facto
authority was not argued or even mentioned
until the State submitted its brief to this court.
Therefore, we must conclude that the State
has waived [its] argument{ ].
Id. at 564-65, 587 N.W.2d at 909.
There is no difference between the State's failure to
make an argument in Bollig and Powell's failure to make an
argument in this case, except that here, Powell never made
the argument that she has a liberty interest in not further
ee ee
-34a-
revealing her bipolar disorder. That is hardly cause to depart
from our reasoning in Bollig.
One of the risks of sua sponte consideration of an
issue is that we will not have the benefit of a true advocate's
view of the issue and his or her research, and we are
deprived of the informed thinking of the trial judge. This
can, and often does result in hardship for one of the parties.
See Vollmer, 156 Wis.2d at 11, 456 N.W.2d at 802. When
we later review a case in which this was done, we often
regret our decision to strike out on our own. When we raise
an issue sua sponte and then decide it, we are often surprised
to first read of contrary authority in a petition for review.
Still, a dissent responds to the reasoning of the majority, and
I must either ignore the issue or address it. | choose the
latter, though reluctantly.
Anything can fall within a concept of "ordered
liberty" if a court says that it does. The majority starts by
citing Powell's never-asserted contention that she has a nght
of privacy in refusing to unnecessarily disclose her mental
health history. This is wrong as a matter of fact. The trial
court noted that Powell's complaint alleges that she
voluntarily told two individuals at the University about her
bipolar disorder. What Powell really asserts is that although
she had no objection to two individuals knowing of this, she
draws the line at three. Moving then from Powell's non-
asserted assertion, the majority concludes: "Therefore,
Cooper and Stoudt may not interfere with Powell's liberty
interest by requiring disclosure of her mental health
history...." Cooper and Stoudt did no such thing. Powell had
already disclosed her mental health history. If a
constitutional right must be found on the facts of this case, it
has to be a right not to tell too many people of one's bipolar
disorder.
-35a-
The Supreme Court has recently cautioned against
expanding the Due Process Clause into new areas. In
Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258,
138 L.Ed.2d 772 (1997) the Court said:
But we "ha[ve] always been reluctant to
expand the concept of substantive due process
because guideposts for _ responsible
decisionmaking in this uncharted area are
scarce and open-ended." By extending
constitutional protection to an asserted right
or liberty interest, we, to a great extent, place
the matter outside the arena of public debate
and legislative action. We must therefore
"exercise the utmost care whenever we are
asked to break new ground in this field," lest
the liberty protected by the Due Process
Clause be subtly transformed into the policy
preferences of the members of this Court.
Our established method of substantive-due-process
analysis has two primary features: First, we have regularly
observed that the Due Process Clause specially protects
those fundamental rights and liberties which are, objectively,
"deeply rooted in this Nation's history and tradition," and
"implicit in the concept of ordered liberty," such that "neither
liberty nor justice would exist if they were sacrificed."
Second, we have required in substantive-due-process cases a
"careful description" of the asserted fundamental liberty
interest. Our Nation's history, legal traditions, and practices
thus provide the crucial "guideposts for responsible
decisionmaking" that direct and restrain our exposition of the
Due Process Clause. /d at 2267-68 (alteration in original)
(citations omitted).
-36a-
The cases the majority cites as authority for its
conclusion are not persuasive to me. Whalen v. Roe, 429
U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), indeed
acknowledges an individual interest in avoiding disclosure of
personal matters. That interest was articulated in Griswald v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965), where the Court invalidated a Connecticut law
criminalizing the use of contraceptive devices, and providing
for the prosecution of doctors who prescribed them.
Visualizing police searches of marital bedrooms for signs of
the use of contraceptives, the Court concluded that a right of
privacy older than the Bill of Rights prevented Connecticut
from interfering with a married couple's decision to use
contraceptives. See Jd. at 515-16. But neither Griswold nor
Whalen suggested that any information pertaining to a
person, whether known by others or not, was constitutionally
protected from revelation beyond the persons with whom
one chooses to share one's secrets.
Whalen held that the State of New York could require
doctors to reveal to the state the names and addresses of
patients for whom they had prescribed drugs which had both
legal and illegal uses. Whalen, 429 U.S. at 605. The Court
spoke of a "host of other unpleasant invasions of privacy that
are associated with many facets of health care." Jd. at 602. It
concluded that the slight risk inherent in revealing private
health information was not a reason to invalidate New York's
requirement. See Jd. at 601-02. I view the university's
requirement that Powell reveal her bipolar disorder to one
more person similarly. This is not a significant enough
intrusion into a private matter to entitle Powell to the
protection of the United States Constitution.
The other case upon which the majority relies to
conclude that the United States Constitution prohibited
Cooper and Stoudt from requiring that Powell tell her
-37a-
practicum instructor of her bipolar disorder is Hillman v.
Columbia County, 164 Wis.2d 376, 474 N.W.2d 913
(Ct.App.1991), review granted, 482 N.W.2d 105 (1992). In
Hillman, the plaintiff, a jail inmate, asserted that some jail
employees had told other jail employees and jail inmates that
Hillman was HIV positive. Id at 384, 474 N.W.2d at 916.
We quoted Woods v. White, 689 F.Supp. 874
(W.D.Wis.1988), aff'd, 899 F.2d 17 (7th Cir.1990), for its
observation that the AIDS virus is closely related to sexual
activity and intravenous drug use, and that this is information
of the most personal kind. See id. at 401, 474 N.W.2d at 923.
We cited two other cases coming to the same conclusion,
both dealing with the AIDS virus. See Id. at 401-02, 474
N.W.2d at 923. In Hillman, the persons allegedly receiving
the private information were fellow prisoners and jail
employees. Hillman's HIV positive status was therefore
known by persons who could hardly be expected to keep this
information confidential. AIDS is unique in that the attitude
of some about this disease is extreme and rejecting. I find no
analogy between the revelation of Hillman's illness to
persons who at best didn't care and at worst could be
expected to berate or injure Hillman, and the revelation of a
bipolar disorder to one more person--a professional who
would be expected to keep this information confidential.
My examination of the cases upon which the
majority relies is not just to show that they do not support the
majority's conclusion. Qualified immunity provides
government officials performing discretionary functions with
protection, shielding them from civil damage liability if
? I question whether today, Hillman would withstand the analysis set out
in Washington, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772. And it is
strange to charge Cooper and Stoudt with knowledge of Hillman in
January of 1991, when the court of appeals did not decide Hillman until
August 1991. Hillman, 164 Wis.2d at 376, 474 N.W.2d at 913.
de ns ai a lt Rd ins acl Sint is 6 ot ‘ .
-38a-
"their actions could reasonably have been thought consistent
with the rights they are alleged to have violated." Anderson
v. Creighton, 483 U.S. 635, 638, 107 S.Ct 3034, 97 L.Ed.2d
523 (1987).’ The plaintiff must prove that the right he or she
asserts was "clearly established" at the time it was allegedly
violated. Thus, qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341,106 S.Ct. 1092,
89 L.Ed.2d 271 (1986). Generalized assertions of a
constitutional right are insufficient.
The operation of this standard, however, depends
substantially upon the level of generality at which the
relevant "legal rule” is to be identified. For example, the
right to due process of law is quite clearly established by the
Due Process Clause, and thus there is a sense in which any
action that violates that Clause (no matter how unclear it
may be that the particular action is a violation) violates a
clearly established right... But if the test of "clearly
established law" were to be applied at this level of generality,
it would bear no relationship to the “objective legal
reasonableness" that is the touchstone of Harlow [ v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982) ]. Plaintiffs would be able to convert the rule of
qualified immunity that our cases plainly establish into a rule
of virtually unqualified liability simply by alleging violation
of extremely abstract rights.... It should not be surprising,
therefore, that our cases establish that the right the official is
alleged to have violated must have been "clearly established"
in a more particularized, and hence more relevant sense: The
> Anderson v. Creighton, 486 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987), is not the only case to identify and discuss this requirement.
See also Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139
(1984); Lojuk v. Johnson, 770 F.2d 619 (7th Cir. 1985); Colaizzi v.
Walker, 812 F.2d 304 (7th Cir.1987) and a couple of others.
-39a-
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to say
that in the light of pre- existing law the unlawfulness must be
apparent.
Anderson, 483 U.S. at 639-40 (citation omitted).
The majority has done what Anderson warns we
should avoid. By using a degree of generality ("whether
Powell has sufficiently alleged that she had a constitutionally
protected property right under state law to complete her
graduate program") instead of the proper "particularized, and
hence more relevant sense" (whether Powell has a
constitutional right not to be required to tell an instructor of a
mental disorder), the majority has transformed the guarantee
of immunity into a rule of virtually unqualified liability.
Cooper and Stoudt certainly should have known that they
could not lawfully dismiss Powell from her graduate
program; that question is similar to requiring them to know
that they could not deprive her of due process of law. But
Anderson explains that this is not the question to ask. When
the correct question is asked, the majority cites no case
which answers the question affirmatively, and I have found
none. If both the majority and I have found no cases
upholding Powell's alleged right, Cooper and Stoudt
certainly should not be held to be aware of the right in
January of 1991, long before Hillman was decided in August
1991. Hillman, 164 Wis.2d at 379, 474 N.W.2d at 913.
As Whalen recognizes, there are a host of unpleasant
invasions of privacy which do not automatically amount to
an impermissible invasion of privacy. The "right of privacy
is a narrow right." Safe Water Ass'n v. City of Fond du Lac,
184 Wis.2d 365, 367, 516 N.W.2d 13, 17 (Ct.App.1994).
sa i ale
-40a-
Under some circumstances, the unauthorized revelation of a
person's bipolar disorder might be a violation of a person's
right to due process but it is not here. Powell is not seeking
re-admission to the University or a declaration that she need
not reveal her bipolar disorder to anyone. She wants money.
She is now willing to reveal her bipolar disorder to the world
through this lawsuit. I am not willing to join in the majority's
sua sponte determination that Powell has a liberty interest in
not disseminating to one more person the information she
voluntarily provided to the University. In my view, Powell
does not have either a liberty or property interest in not
further revealing the fact of her bipolar disorder to her
practicum instructor. Therefore, Cooper and Stoudt were
entitled to qualified immunity and Powell's complaint should
have been dismissed. Accordingly, I respectfully dissent.
-4la-
STATE OF WISCONSIN DANE
COUNTY
CIRCUIT COURT BRANCH 17
CONNIE G. POWELL
Plaintiff,
VS. Case No. 97-CV-1151
ARLENE M. COOPER
and CALVIN STOUDT,
Defendants.
MEMORANDUM DECSION AND ORDER
Connie G. Powell (plaintiff) filed an action seeking
judgment and damages against Dr. Arlene M. Cooper and
Dr. Calvin Stoudt (defendants) for violating, her civil rights
and negligently inflicting emotional distress. The defendants
have filed a Motion to Dismiss the Complaint alleging that it
fails to state a claim upon which relief may be granted. For
the reasons set forth the Motion to Dismiss is denied.
Facts
According to the amended complaint, the plaintiff
was admitted to the graduate student program in guidance
and counselling at the University of Wisconsin-Stout in the
fall of 1987. The plaintiff concentrated in the area of alcohol
(| oo cel omy ee
-42a-
and other drug, abuse counseling. At the time of her
admission, the plaintiff was assigned Dr. David Cook as an
academic advisor. Also at that time, the plaintiff disclosed to
Dr. Cook the fact that she had a history of suffering from a
manic depressive disorder. Dr. Cook indicated to the plaintiff
that her condition would not affect her completion of the
graduate program at UW-Stout.
By January, 1991, the plaintiff had successfully
completed all of the course work required of the Master’s
Degree program in guidance and counseling. The plaintiff
had yet to complete the required practicum and master’s
thesis.
In December, 1990, the plaintiff was sent by Dr.
Cook to speak with defendant Dr. Cooper regarding the
plaintiffs practicum assignment for the spring of 1991. At
that time, the plaintiff disclosed to Dr. Cooper that she
suffered from a manic depressive disorder. Up on receiving
this information, Dr. Cooper refused to schedule the plaintiff
for a practicum assignment.
On January 28, 1991, the plaintiff met with
defendants Dr. Cooper and Dr. Stoudt. At this time, the
plaintiff was told by the defendants that she would be
allowed to undertake a graduate student praticum only if she
agreed to disclose to the practicum site supervisor the fact
that she was suffering from a manic depressive disorder. Dr.
Stoudt is alleged to have known approved, and supervised
the offering of the praticum on the condition that the plaintiff
must first disclose the fact that she suffers from a manic
depressive disorder to the site supervisor.
The plaintiff refused to make the required disclosure
and therefore was not allowed to undertake and complete the
praticum, requirement, which also resulted in her being
-43a-
unable to complete the graduate school program at UW-
Stout.
The plaintiff alleges that she had a property interest
in completing her graduate school education that the
arbitrary and capricious action of the defendants denied the
plaintiff her due process rights which are guaranteed by the
United States Constitution. The plaintiff further alleges that
the actions of the defendants were willful wanton and in
reckless disregard of her rights. Finally, the plaintiff alleges
that the defendants’ conduct was negligent and directly and
proximately resulted in the plaintiff suffering physical injury
and emotional distress.
Standard of Review
The purpose of the Complaint is to give notice of the claim.
Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723,
731 (1974). The purpose of the motion to dismiss for failure
to state a claim is to rest the legal sufficiency of the
complaint. The facts pled are taken as admitted. Evans v.
Cameron, 121 Wis.2d 421. 426 (1985). The pleading’s are to
be liberally construed and should be dismissed as legally
insufficient only if it is quite clear that under no
circumstances can plaintiff recover. Evans, 121 Wis. 2d. at
426. Plaintiff can rely on the facts pled and reasonable
inferences from the pleadings. However, legal conclusions
and unreasonable inferences are not considered. Hartridge v.
State Farm Mut. Auto Ins. Co., 86 Wis. 2d 1, 4. 271. N.W.2d
598 (1978).
Discussion
The defendants propose nine arguments in support of
their motion to dismiss for failure, to state a claim:* (1) there
* The court notes that the defendants’ Reply Brief raises additional
arguments in response to the plaintiff's Brief in Opposition. These
-44a-
is no constitutionally protected property interest in a
graduate school education. (2) there is no constitutional IV
protected property interest in refusing to disclose a mental
illness to a practicum instructor, (3) the decision by the
defendants to require disclosure was not arbitrary and
capricious, (4) the matter at issue was academic in nature and
did not require a due process hearing, (5) the defendants
enjoy qualified immunity from this suit, (6) Dr. Stoudt was
not personally involved in the deprivation of the plaintiff's
rights and is therefore not liable, (7) as Dr. Cooper’s
supervisor, Dr. Stoudt cannot be vicariously liable for the
tort claim, (8) the statute of limitations bars the negligent
infliction of emotional distress claim, and (9) the plaintiff
has failed to cite the specific ministerial duty breached by the
defendants, and. therefore the negligent infliction of
emotional distress claim should be dismissed according to
the doctrine of discretionary act immunity. This opinion will
address each argument in turn.
The defendants’ first argument is that there is no
constitutionally protected property interest in a graduate
school education. The defendants are wrong. The United
States Supreme Court, the Seventh Circuit and the Wisconsin
Supreme Court have consistently assumed that such a night
exists. In Board of Curators Univ. of Mo. v. Horowitz, 435
U.S. 78 (1978) a medical student filed suit to challenge her
expulsion from medical school for poor performance. For the
purposes of the decision the Court assumed that the medical
student had a property interest in. completing her education
additional arguments will not be considered as the court does not find
any of the original arguments persuasive. In addition, the court
admonishes the defendants for filing a twenty-page reply brief in this
matter. According to Dane County Circuit Court Rules reply briefs are
limited to
to thirteen typewritten pages unless otherwise ordered by the court. At
no time did this court order, nor consider, a waiver of this page limit.
-45a-
in order to pursue a medical career, yet found that she was
awarded “at least as much due process as the Fourteenth
Amendment requires.” Id. at 85.
Likewise, the Court in Regents of Universitv of
Michigan v., Ewing, 474 U S. 214 (1985), was faced with
the plight of a medical student who was dismissed from
school for failing to meet academic standards. Again, for the
purposes of the decision, the court assumed that the medical
student had a constitutionally protectable property interest in
continued enrollment but that even if the “assumed property
interest gave rise to substantive right under the Due Process
Clause to continued enrollment free from arbitrary state
action, the facts of record disclose no such action.” Id. at
223.
The two federal judges in the Western District of
Wisconsin have been more affirmative in asserting that a
property interest in continuing an education exists. In Martin
v. Helstad, 57S F.Supp. 1473 (W.D. Wis. 1983), “Judge
Crabb cited Horowitz, among other sources, in support of her
contention that “[cjourts and state law recognize a property
interest in continuing education once a student has begun a
course of study,” Id. at 1480 (citations omitted). The issue in
Horowitz was whether a person who had lied on his
admissions application and was then offered and accepted
admission to law school, had a constitutionally protected
interest in commencing that education. Judge Crabb found
that an interest existed, but also found that the prospective
student had been provided all of the due process to which he
was entitled.
In Anderson v. University of Wisconsin, 665 F.Supp.
1372 (W.D. Wis. 1987), Judge Shabaz did “not argue with
the plaintiff's contention that a student has a property interest
in continuing education once the student has begun a course
-46a-
of s study. “Id. at 1396. However, the court also found that a
student who has been expelled from school for failing to
maintain a required grade average no longer has a property
interest in continuing his or her education.
In 1932, the Wisconsin Supreme Court stated that
“the law is apparently well settled that a university, college.
or school may not arbitrarily or capriciously dismiss a
student or deny to him the right to continue his course of
study therein.” Frank v. Marquette University,. 209 Wis.
372, 377 (1932). The basis of Frank’s case was that the
University acted unreasonably, arbitrarily and capriciously
when it refused to allow him to graduate from medical
school. However, the case was before the court on a motion
to determine whether the plaintiff was entitled to obtain
disciplinary records held by the University in relationship to
alleged actions taken against other University students. The
court found that the records were immaterial to the merits of
the controversy.
It appears that courts have been reluctant to
specifically state whether a student has a constitutionally
protected property interest in continuing an education. This
reluctance is probably best explained by the Ewing court,
which recalled Justice Brandeis’ admonition “not to
formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.” 474
U.S. at 222 (citation and internal quotations omitted).
Although courts may wisely refuse to make broad
constitutional declarations when the facts before them do not
require such findings, it is quite clear that courts have
repeatedly and consistently assumed that’ a student has a
constitutional property interest in continuing his or her
-47a-
education. Contrary to the defendants’ contentions this fact is
strong evidence that the interest does exist.’
As for this case the plaintiff has alleged numerous
facts which if true establish that she had a property interest in
continuing her graduate school education. The plaintiff was
rightfully admitted to the school, paid her tuition achieved
acceptable grades and maintained her good standing as a
graduate student. The plaintiff is not alleged to have violated
any rule, regulation or policy (academic or otherwise) of the
University. Unlike the plaintiffs in any of the aforementioned
cases, the plaintiff has done nothing deceitful to cause her to
be removed from the school, nor has she failed to perform at
academically acceptable standards. Based on the facts plead
in the Complaint and other documents filed herein it appears
plaintiff has satisfied all requirements for continued graduate
study. The only exception is the alleged arbitrary and
capricious requirement by defendants that plaintiff disclose
her mental illness to the practicum site supervisor without
any justified or supported basis. The Complaint establishes at
the least that the disclosure requirement exceeded any
legitimate academic or regulatory/policy purpose absent an
independent basis for its imposition. Therefore, the court
finds that this plaintiff has alleged facts sufficient to establish
that she has a constitutionally protected property interest in
her graduate school education.
The defendants’ second argument that there is no
constitutionally protected property, interest in refusing to
disclose a mental illness to a practicum instructor, fails for
essentially the same reasons noted above. The defendants
? Futhermore the court is dismayed at the defendants’ blatant
misstatement of the law on this point, particularly with respect to the
Seventh Circuit’s decision on an appeal of a preliminary matter in the
Martin case.
-48a-
attempt to rely on Judge Shabaz’ decision in the Anderson
case to support their contention that the plaintiff needs to cite
a “state statute, university rule or any other basis” to sustain
her claim. As set forth above, the court has analyzed the
existing federal and state case law and has found that the
plaintiff has a constitutionally protected property interest in
her graduate school education furthermore, as will be
discussed below, the plaintiff has alleged that the defendants
deprived her of her substantive due process rights by acting
arbitrarily and capriciously. This is all that is required in
order for the complaint to survive a motion to dismiss.
Furthermore the crux of the Anderson decision was
whether a student who was expelled for failing to maintain
required academic standards had an interest in begin
readmitted to school; the court had already acknowledged
that the student would have had a constitutionally protected
interest in continuing his education had he not been expelled.
The plaintiff in this case has not been expelled therefore
Anderson does not require her to do more than assert her
right to continue her education in the absence of
constitutional interference.
The defendants’ third argument, which addresses the
plaintiff's substantive due process claim, is that the decision
by the defendants to require disclosure was not arbitrary and
capricious. In support of this argument the defendants first
allege that the plaintiff was “simply asked to provide the
same information about her mental illness to her practicum
supervisor that she had volunteered to many others -at the
university. “ (Defendants’ Brief, p. 12-13.) This assertion
clearly misses the point and is wrong for a number of
reasons. First, according to the complaint, the plaintiff
alleges that the defendants conditioned her participation in
the practicum on the requirement that she disclose the fact
that she suffered from a manic depressive disorder to the site
-49a-
supervisor not that she was “simply asked” to provide that
information. Second, it is an overstatement for the
defendants to state that the plaintiff had told “many others”
about the fact that she suffers from a manic depressive
disorder when the complaint alleges that she told only two
individuals at the university about this. Third and most
importantly this allegation does not address and in no way
negates the plaintiff's allegation that the decision by the
defendants to require disclosure was arbitrary and capricious.
Certainly it may have been a simple” thing for plaintiff to do,
however that assertion is tantamount to arguing that an
individual who is discriminated in his or her housing
selection could simply look for another house is an
acceptable argument in our civil rights jurisprudence.
Defendants’ third argument fails.
The defendants also allege that “[i]t is obvious from
the [defendants’ proposed definition of “bipolar disorder”]
that [the plaintiffs] site supervisor would need to know of her
condition.” (Defendants’ Brief, p. 13.) The court finds that
the defendants’ attempt to introduce a generic dictionary
definition of “bipolar disorder” as evidence that they did not
act in violation of the plaintiff's substantive due process
rights is misguided and borders on being offensive. Frankly
it begs the question. The fact that the defendants are willing
to admit that they see the plaintiff as no more than a standard
dictionary definition of a mental illness is more persuasive as
evidence that they did indeed act arbitrarily and capriciously
in the manner in which they treated her. The court finds that
the plaintiff has sufficiently alleged that the defendants acted
arbitrarily and capriciously when they required her to
disclose to her practicum, site supervisor that she suffers
from manic depression.
Furthermore, it appears at this early stage in the
proceedings that defendants imposed the disclosure
-50a-
requirement without examining plaintiffs specific
circumstances to determine, first whether plaintiffs history
could support such a requirement. For example, should
plaintiff's p history reveal problems working with others in a
counseling setting due to her mental illness, it is arguable
defendants may have a legitimate basis for requiring
disclosure to the practicum site supervisor. However, thus
far, the pleadings do not reveal defendants rook these
preliminary steps before informing plaintiff of the disclosure
requirement. Plaintiff has established a claim under 42
U.S.C. sec. 1983 for a violation of the due process rights.
Because the court finds that the plaintiff has stated a
valid §1983 cause of action on the basis that the defendants
deprived her of her substantive due process rights it is
unnecessary, to address the defendants’ fourth argument
which alleges that the matter at issue was academic in nature
and did not require a procedural due process hearing.
The defendants’ fifth argument is that they enjoy
qualified immunity from this suit. The doctrine of qualified
immunity provides that officials “are shielded from liability
for civil damages insofar as their conduct dues not violate
clearly established statutory or constitutional rights of which
a reasonable per-son would have known” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). (citations omitted).
The Harlow court determined that, on summary judgment the
judge may determine “not only the currently applicable law,
but whether that law was clcarly established at the time an
action occurred.” Id. While the posture of this case is not
one of summary judgment, the court believes that it is proper
and indeed necessary, for it to determine the current law and
whether it was clearly established at the time the alleged
action occurred.
-5la-
As stated above the court has located a consistent-
line of cases which acknowledge that a student has a
constitutionally protected property interest in continuing an
education. Furthermore according, to the Fifth Amendment
to the United Stares Constitution a person cannot be deprived
of that property without due process of law. The court finds
that the law was clearly established at the time in question
and that the defendants are properly charged with knowing
that law and complying with it: the court will nor Errant the
defendants qualified immunity in this case.
The court will address the defendants’ sixth and
seventh arguments together as both are based on the notion
that Dr. Stoudt should be individually relieved from liability.
Specifically as to the constitutional claim, the defendants
argue that Dr. Stoudt was not personally involved in the
deprivation of the plaintiff's rights and therefore not liable;
as for the personal injury claim, the defendants argue that, as,
Dr. Cooper’s supervisor, Dr. Stoudt cannot be held
Vicariously liable.
The complaint alleges that “Dr. Stoudt knew plaintiff
would be offered a practicum on the sole condition that she
disclose her manic depressive condition. Dr. Stoudt approved
of this conditional practicum and supervised Dr. Cooper in
offering said conditional practicum to plaintiff's (amended
complaint 415). Based upon the allegations in’ the
complaint, it is reasonable for this court to infer that Dr.
Stoudt was involved in the alleged deprivation of the
plaintiff's’ rights to the extent necessary to withstand a
motion to dismiss. Likewise, the facts alleged in the
complaint are sufficient to raise an inference that Dr. Stoudt
may have been more than just vicariously attached to the
actions of Dr. Cooper. At this stage of the proceedings, it is
simply impossible for this court to determine that Dr. Stoudt
was not personally responsible for the alleged causes of
-52a-
action and therefore dismissing Dr. Stoudt from the action at
this time would be premature.
The defendants’ eighth argument is that the statue of
limitations bars the negligent infliction of emotional distress
claim. In Wisconsin, an action to recover for personal
injuries must be commenced within three years or be barred.
Wis. Stat. § 893.54(1). The action taken by the defendants is
alleged to have occurred on January, 28. 1991. The
plaintiff's action was first filed on January 24, 1997.
Although six years elapsed between the time of the incident
alleged to be negligent and the time of the filing of the
complaint this fact alone does not warrant, dismissal of the
plaintiff's claim.
In 1983, the Wisconsin Supreme Court adopted the
rule which expands the possibilities for determining when a
cause of action for, personal injury accrues. In Hansen v. A.
H. Robins. Inc., 113 Wis. 2d 550 (1983), the court set forth
the discovery rule as follows: a claim does not accrue until
the injury is discovered or in the exercise of reasonable
diligence should be discovered. Id. at 556. In this case the
plaintiff does not specify when the alleged injury was
discovered, therefore it is possible that the injury, was not
discovered or should have been discovered until a significant
time after the date of the alleged negligent act. For this
reason, it would be inappropriate for the court to dismiss the
plaintiff's negligent infliction of emotional distress claim at
this time.
Finally, the defendants argue that they are immune
from liability for negligent actions according to the doctrine
of discretionary immunity. The general rule in Wisconsin is
that public employees “are immune from liability for
damages resulting from their negligence or unintentional
fault in the performance of discretionary functions. “ Lister
-53a-
v. Board of Regents, 72 Wis.2d 282, 301 (1978). However,
public employees are liable for damages which result from
the negligent performance of purely ministerial duties. Id. at
300-301. A duty is ministerial only if it is “absolute certain
and imperative involving merely the performance of a
specific task when the law imposts prescribes and defines the
time, mode and occasion for its performance with such
certain, that nothing, remains for judgment or discretion. “
Id. at 301.
In this case the plaintiff has alleged that the
defendants had a duty to administrate her graduate degree the
program without the occurrence of negligent actions on their
part. The court does not believe that this allegation in and of
itself. is sufficient to establish that the defendants had a
ministerial duty to not engage in negligent administration.
However, the court does find that the complaint, construed
most liberally and considered in its entirety, doe’s at least
allege that the defendants may have had a ministerial duty to
schedule the plaintiffs practicum assignment without
imposing the additional burdei of having to disclose to the
practicum supervisor that she suffers from manic depression.
It is clear to the court that potential circumstances exist
which would allow the plaintiff to recover for her negligent,
infliction of emotional distress claim and that it would
therefore be premature to dismiss her claim at this stage of
the proceedings.
-54a-
Conclusion
For the reasons set forth the defendants’ Motion to Dismiss
is denied.
Dated this 23rd day of December, 1997.
BY THE COURT:
/s/ Paul Higginbotham
Judge Paul Higginbotham
Dane County Circuit Court-Branch 17
-55a-
STATE OF WISCONSIN DANE COUNTY
CIRCUIT COURT BRANCH 17
Connie G. Powell, Case No. 97 CV 1151
Plaintiff,
vs. AMENDED’ COMPLAINT ;
Dr. Arlene M. Cooper,
Dr. Calvin Stoudt, Case Classification
Defendants. Money Judgment 30301
Pursuant to § 802.09(1), Wis. Stats, the plaintiff
amends her complaint as follows:
PARTIES
:: The Plaintiff is an adult resident of the State of
Oregon, residing at 1913 23rd Ave. #4, Forest Grove, OR
97116
: The Defendant, Dr. Arlene Cooper, is an adult
resident of the State of Minnesota, residing in Red wing,
Minnesota, a Phd. in the field of psychology, an
experienced educator in counseling instruction, and at all
times material to this action, was an assistant professor of
counseling and psychological services at the University of
Wisconsin-Stout, located in Menomonie, Wisconsin.
' Amended portions of complaint are highlighted
-56a-
3. The Defendant, Dr. Calvin Stoudt, is an adult resident
of the State of Wisconsin, residing at E4569 479th Ave.,
Menomonie, WI 54751, a Phd. in the field of psychology,
an experienced educator in counseling instruction, and at
all times material to this action, was the program director for
the School of Guidance, Counseling and Psychological
Services at the University of Wisconsin-Stout, in
Menemonie, Wisconsin, and in such position the
supervisor of Dr. Cooper.
CIVIL RIGHTS CAUSE OF ACTION
4. This civil rights litigation is brought pursuant to the
42 U.S.C. 91983, the United States Constitution and the
Fourteenth Amendment to the United States Constitution.
S. The defendants, at all times material to this action,
were duly appointed and qualified agents and employees of
the State of Wisconsin, acting as hereinafter set forth in their
respective capacity as stated and acting under color of
statutes, regulations, custom, policy, and usage of the State
of Wisconsin and the University of Wisconsin system.
6. Each of the defendants herein acted under color of
law in depriving the plaintiff of her rights under the
Constitution of the United States, causing the plaintiff to
suffer damage and injury.
7. In the fall of 1987, plaintiff was admitted to the
Graduate College of the University of Wisconsin-Stout,
Menomonie, Wisconsin, in a graduate student program for a
- Master’s Degree in guidance and counseling, with a
concentration in aicohol and other drug abuse counseling,
which created an implied contract that plaintiff would
receive her graduate degree if she paid her tuition,
achieved required grades and maintained her good
-57a-
standing as a graduate student. Said contract was
subsequently breached by the defendant not allowing
plaintiff to undertake her graduate practicum. without
disclosing her manic depressive disorder to her site
supervisor.
8. At the time of plaintiffs’ admission to said Graduate
College, the plaintiff was assigned Dr. David Cook, as an
academic advisor, to whom the plaintiff disclosed the fact
the plaintiff had a history of suffering from-a manic
depressive disorder. Plaintiff was advised by Dr. Cook that
her manic-depressive condition would not affect the
completion of plaintiff's graduate program at U.W.
Stout.
9. At the time plaintiffs, admission to said graduate
degree program, nor thereafter until December of 1990,
no staff member at the University of Wisconsin-Stout
advised plaintiff that her manic depressive condition
would, in any way, interfere with the conipletion of
plaintiffs, graduate school program at the University of
Wisconsin-Stout.
10. Subsequent to plaintiffs, admission to said graduate
program, the plaintiff completed all of the course work
required for a Master’s Degree in guidance and counseling
with the exception of the plaintiff's practicum-and master’s
thesis.
11. Im January of 1991, the plaintiff's official transcript
from the University of Wisconsin-Stout shows the piaintiff
has a cumulative grade point of 3.887 in all course work
completed in said graduate program, had paid all tuition
and fees due, and was a graduate student in good
standing at the University of Wisconsin-Stout.
-58a-
12. In December of 1990, the plaintiff was sent by
plaintiffs, academic advisor, Dr. David Cook, to speak to Dr.
Arlene Cooper, concerning the scheduling of plaintiffs,
. graduate student practicum for the spring of 1991.
13. | Upon disclosure to Dr. Cooper by the plaintiff that
plaintiff was suffering from manic-depressive disorder, Dr.
Cooper refused to schedule plaintiff into the graduate student
practicum program in guidance and counseling.
14. On January 28, 1991, plaintiff met with Dr. Cooper
and Dr. Stouc't, at which meeting the plaintiff was told that
plaintiff would be allowed to undertake a graduate student
practicum only if plaintiff agreed to disclose the fact that —
plaintiff was suffering from a manic depressive disorder to
any site supervisor for plaintiff's graduate school practicum.
15. Prior to said meeting, Dr. Stoudt knew plaintiff
would be offered a practicum on the sole condition that
she disclose her manic depressive condition; Dr. Stoudt
approved of this conditional practicum and supervised
Dr. Cooper in offering said conditional practicum to
plaintiff at said meeting.
16. Shortly before issue of scheduling of plaintiff's
practicum arose, Drs. Cooper and Stoudt had
experienced problems with the practicum, for another
graduate student at the University of Wisconsin-Stout
with a manic depressive disorder, as a result of which Dr.
Cooper and Stoudt conspired to force plaintiff out of her
graduate program with the motive and intent to avoid
any potential problems that might arise in the future
regarding plaintiff’s practicum.
17. Upon plaintiff's refusal to disclose plaintiffs, manic-
depressive disorder to any practicum site supervisor for
-59a-
plaintiffs’ graduate student practicum, plaintiff was not
allowed to undertake and complete plaintiffs’ graduate
school practicum, and as a consequence, plaintiff could not
complete her graduate school program at the University of
Wisconsin-Stout.
18. Denial of plaintiff the opportunity to undertake and
complete her graduate school practicum was without any
hearing or other procedural due process to determine the
necessity for the disclosure of plaintiffs, manic depressive
disorder to plaintiffs, practicum site supervisors, the effect
of said disclosure on plaintiff, or any alternatives to said
disclosure; and was the arbitrary and capricious whim of
the defendants, and constituted 2 dismissal of plaintiff
from her graduate program.
19. Plaintiff had a constitutionally protected property
right in the continuance of her graduate school program at
the University of Wisconsin-Stout, which could not be
denied plaintiff without procedural due process, there being
little administrative or fiscal burden on the University of
Wisconsin-Stout in providing plaintiff with a due process
hearing;
20. Plaintiff was deprived of said constitutionally
protected property right by the defendants without
procedural due process as guaranteed by the United States
Constitution and the 14th Amendment to the United States
Constitution.
21. Defendants violated the plaintiffs’ property rights in
her education and plaintiffs’ procedural due process rights
under the United States Constitution and the 14th
Amendment to the United States Constitution.
-60a-
22. The plaintiff borrowed substantial sums of money
and expended said sums on plaintiffs’ graduate program at
the University of Wisconsin-Stout, which plaintiff has had to
repay or is in the process of repaying.
PUNITIVE DAMAGE CAUSE OF ACTION
23. The allegations set forth in paragraphs 2 through 20
are set forth herein by reference.
24. The conduct of the defendants, as set forth in
paragraphs 13 and 14 herein was willful, wanton and in
reckless disregard of the rights of the plaintiff to a graduate
school education at the University of Wisconsin-Stout.
25. The conduct of the defendants was undertaken by the
defendants will full knowledge that by denying plaintiff
participation in a graduate school practicum, the defendants
were denying plaintiff the opportunity to complete here
graduate school program at the University of Wisconsin-
Stout.
NEGLIGENT EMOTIONAL DISTRESS CAUSE OF
ACTION
26. The allegations set forth in paragraph 2 through 20
are set forth herein by reference.
27. The defendants knew or should have known, as
psychologists and members of the staff for the Department of
Guidance and Counseling at the University of Wisconsin-
Stout, that as a result of the denial of plaintiffs’ opportunity
to complete a graduate school program at the University of
Wisconsin-Stout, the plaintiff might suffer physical injury
and emotional distress causing a disabling emotional
-61a-
response to the defendants’ conduct, resulting in the
plaintiffs, inability to function in other relationships.
28. The defendants had a duty to plaintiff to
administrate plaintiff's graduate degree program without
the occurrence of negligent actions on the part of the
defendants.
29. The defendants knew of should have known that
the administration of plaintiff Is graduate degree
program by requiring the disclosure of plaintiff's manic
depressive condition to plaintiffs practicum site
supervisor was a breach of defendants, duty to plaintiff. —
30. That asa result of the defendants’ conduct in denying
plaintiff the opportunity to complete her graduate school
program at the University of Wisconsin-Stout, the plaintiff
did suffer physical injury and emotional distress causing a
disabling emotional response to defendants’ conduct,
resulting in the plaintiffs, inability to function in other
relationships, which was a direct and proximate result of the
defendants conduct herein.
WHEREFORE, the plaintiff demands judgment
against the defendants for compensatory and punitive
damages in an amount to be_ determined, reasonable
attorneys fee, and the costs and disbursements of this action,
as well as such other relief as the court deems appropriate.
Dated this 27th day of June, 1997.
/s/ John E. Joyce
JOHN E. JOYCE, SB# 01008608
Attorney for the Plaintiff
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.