Baker v. Board of Regents of State of Kan.

• Decision Date: 01 September 1989
• Docket Number: No. 88-4133-R.,88-4133-R.
• Citation: 721 F. Supp. 270
• Parties: Marvin D. BAKER, Plaintiff, v. The BOARD OF REGENTS OF the STATE OF KANSAS and University of Kansas Medical School-School of Medicine, Defendants.
• Court: U.S. District Court — District of Kansas

721 F. Supp. 270

Marvin D. BAKER, Plaintiff, v. The BOARD OF REGENTS OF the STATE OF KANSAS and University of Kansas Medical School-School of Medicine, Defendants.

No. 88-4133-R.

United States District Court, D. Kansas.

September 1, 1989.

Anthony Clum, Robert E. Keeshan, Hamilton, Peterson, Tipton & Keeshan, Topeka, Kan., for plaintiff.

John C. McFadden, Steven L. Ruddick, Sp. Asst. Atty. Gen., University of Kansas Medical Center, Kansas City, Kan., Malcolm Burns, Lawrence, Kan., for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case is now before the court upon plaintiff's motion for a "temporary" injunction. The court heard evidence and argument on this motion on August 24, 1989. The court believes it is consistent with the intent of the parties and the type of hearing conducted upon plaintiff's motion to treat the motion as one for a preliminary injunction, rather than for a temporary restraining order.

Plaintiff's motion seeks an order directing defendants, the Board of Regents of the State of Kansas and the University of Kansas Medical School (KUMS), to admit plaintiff as a first-year medical student pending the outcome of a trial in this case.

The long-standing test for granting a preliminary injunction is whether the movant can establish:

(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.

Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980); see also Tri-State Generation v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986).

Where a movant has prevailed on the other three factors, the Tenth Circuit has followed the Second Circuit's liberal definition of the probability of success element, i.e., whether the movant "has raised questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus more deliberate investigation." Lundgrin v. Claytor, supra.

In deciding plaintiff's motion, the court shall focus upon the probability of success element of the test.

The amended complaint in this case asserts four claims. First, plaintiff, a white male, claims he was discriminated against because females and minority group members with lower grade point averages (GPAs) and lower scores on the medical school admissions test, MCAT, were admitted in 1984, 1985 and 1986, the three years plaintiff made unsuccessful applications to KUMS. Plaintiff alleges this is a violation of the Fourteenth Amendment to the United States Constitution, Section 1 of the Bill of Rights to the State of Kansas Constitution, Title VII of the Civil Rights Act of 1964 and Section 1981 of Title 42 of the United States Code.

Plaintiff's second claim asserts a cause of action under Title VI of the Civil Rights Act of 1964 for racial discrimination.

Plaintiff's third claim asserts that defendants' reliance upon interviews as part of the admissions process is arbitrary and capricious and denied plaintiff due process of law guaranteed by the Fifth and "Eleventh" Amendments to the United States Constitution.

Plaintiff's final claim is that defendants have refused to provide plaintiff records relevant to the denial of admission to KUMS in alleged violation of state law, K.S.A. 45-215 et seq.

It should be noted that plaintiff has filed a motion to amend his complaint to add claims under 42 U.S.C. § 1983 and 29 U.S.C. § 794. Plaintiff also seeks to add two individuals as defendants. We shall not rule upon this motion in this order, but do not believe the motion, if granted, would affect the merits of the motion for injunctive relief.

The following facts supply the basis for plaintiff's claims. Plaintiff is a Kansas resident. Kansas residents receive preference in the admissions process to KUMS, the only medical school in Kansas. He first applied for admission to KUMS in 1984. Plaintiff graduated from Kansas University in 1984 with a cumulative GPA of 3.54. Plaintiff had a 3.64 GPA in biology, chemistry, physics and mathematics. Admissions to KUMS are based upon four criteria: GPA, MCAT, premedical advisors recommendation and interviews. KUMS combines GPA and MCAT scores to develop one score. Plaintiff's combined score in 1984 was 587. This score was close to the average score of students admitted in 1984. Of the 192 students admitted in 1984, 63 had lower combined scores than plaintiff. But, plaintiff received an unsatisfactory interview committee score in 1984.

Plaintiff retook the MCAT in 1985 and improved his score so that his combined GPA/MCAT score was 625. This total was above the average total score of students admitted to KUMS in 1985. Plaintiff was not admitted, however.

Plaintiff applied again in 1986. Once again, his combined GPA/MCAT score was above average for persons admitted to KUMS that year. One hundred three applicants with lower combined scores were accepted to KUMS in 1986. Plaintiff had the highest combined score for any Kansas resident not admitted in 1986. There is testimony that based solely upon plaintiff's objective scores, he would have had a 95% chance of being admitted to KUMS. Plaintiff was recommended for admission by the Chairman of the Department of Anatomy at KUMS and by other faculty members.

Plaintiff did not apply to KUMS in 1987, 1988 or 1989. To make application after 1987, plaintiff would have had to retake the MCAT. Plaintiff did apply to other medical schools in 1985 and 1986, but was not accepted.

Of the 175 students admitted to KUMS in 1986, 22 were nonwhite, by self-description. In 1985, 19 of 200 students were nonwhite. In 1984, 12 of 192 new students were nonwhite. It appears that roughly half of the nonwhite admissions in these years were persons of oriental ancestry. The overall GPA of nonwhite students entering KUMS in 1984 was 3.52. In 1985, the number was 3.37.

KUMS has an affirmative action director who encourages minorities underrepresented in the medical profession and economically disadvantaged persons to apply for admission. Plaintiff might qualify as economically disadvantaged, but there is no evidence that he was aided by affirmative action. To the contrary, plaintiff asserts discrimination because of his status as a white male. There are no quotas for the admission of minority students, and the director of the affirmative action program testified that he has had no role in the admissions process. This testimony is somewhat contradicted by the deposition testimony of Dr. Stanley Nelson, who indicated a "minority director" spoke for minority applicants to KUMS. No evidence of a history of discrimination at KUMS has been presented to warrant any kind of racial preference in the admissions process.

It appears admitted that plaintiff was denied admission on the basis of his performance in the interviews for admission. All applicants from Kansas are granted an interview. The interview is conducted by four people. Usually, three applicants are interviewed at once, although at one of plaintiff's interviews only two applicants were interviewed. The interviews last approximately one hour. The interview panels are made up of one clinician, a basic scientist, a practicing physician, and a lay citizen. There are six panels. The members of the panels are changed each year.

During his interviews, plaintiff was questioned concerning abortion, religion, family history and financial need. Plaintiff felt the questions were inappropriate. Plaintiff's experience in the interviews indicated that no standard procedure governed the format or substance of the questions.

KUMS has not performed a study to determine if interviews help select successful medical students. A study has been conducted which indicates that GPA and MCAT scores can predict success in passing courses at KUMS.

Plaintiff has cited several articles from academic journals which describe studies finding no correlation between interviews for medical school and success in coursework. In other words, students selected without interviews are just as successful academically as students selected with interviews. Plaintiff has also presented the deposition testimony of an expert who indicated that his studies are beginning to show that students selected by interviews do not perform better in residency.

Probability of Success on the Merits

Defendants have filed a motion to dismiss raising many issues which should be considered at this point. First, it should be noted that plaintiff cannot bring an action under the Fifth or Fourteenth Amendments to the United States Constitution; he is limited to bringing an action pursuant to federal statutes enforcing the Constitution. Phelps v. Wichita Eagle-Beacon, 632 F.Supp. 1164 (D.Kan.1986); Lee v. Wyandotte County, Kansas, 586 F.Supp. 236 (D.Kan.1984). Nor is relief available under Title VII of the Civil Rights Act of 1964. This statute is reserved for employment discrimination. 42 U.S.C. § 2000e.

Defendants have raised the defense of the Eleventh Amendment against this lawsuit. Plaintiff has sued two state instrumentalities that share in the state's immunity from suit in federal court under the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Clay v. Texas Women's University, 728 F.2d 714 (5th Cir. 1984); Billings v. Wichita State University, 557 F.Supp. 1348, 1350 (D.Kan.1983). This immunity extends to lawsuits for injunctive or prospective relief. Alabama v. Pugh, supra; Billings v. Wichita State University, supra. Lawsuits under 42 U.S.C. §§ 1981 and 1983 are not exempt from the Eleventh Amendment bar. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Freeman v. Michigan Dept. of State,...