Garcia v. S.U.N.Y. Health Sciences Center

Citation280 F.3d 98
Decision Date25 September 2001
Docket NumberDocket No. 00-9223.
PartiesFrancisco GARCIA, Plaintiff-Appellant, v. S.U.N.Y. HEALTH SCIENCES CENTER OF BROOKLYN; Stephen E. Fox, Ph.D., individually and in official capacity; Jacqueline S. Jakway, individually and in official capacity; Lorraine Terracina, Ph.D., individually and as Dean of Academic Affairs or her successor, Irwin M. Weiner, M.D., individually and as Dean of the College of Medicine or his successor; and Russell Miller, M.D., individually and as President of the State University of New York Health Sciences Center or his successor, Defendants-Appellees, and UNITED STATES of America, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Benjamin Z. Holczer, New York, NY, for Plaintiff-Appellant.

Mark Gimpel, Deputy Solicitor General (Eliot Spitzer, Attorney General of the State of New York; Deon J. Nossel, Assistant Solicitor General, of counsel), New York, NY, for Defendants-Appellees.

(William R. Yeomans, United States Assistant Attorney General, Civil Rights Division; Jessica Dunsay Silver; Seth M. Galanter; Washington, DC; for the United States as Intervenor.).

(Richard N. Simpson; Amy Ledoux; Sam R. Hananel; Ross, Dixon & Bell, L.L.P.; Washington, DC; S. Mark Goodman; Michael Hiestand; Arlington, VA; for Amicus Curiae Student Press Law Center on behalf of Plaintiff-Appellant.).

(Ogden A. Lewis; Daniel E. Wenner; Andrew H. Tannenbaum; Davis Polk & Wardwell; New York, NY; for Amici Curiae Access Now, The Center for Independence of the Disabled in New York, Disability Advocates, Judge David L. Bazelon Center for Mental Health Law, League for the Hard of Hearing, Mood Disorders Support Group, National Association of the Deaf, National Association of Protection and Advocacy Systems, The National Multiple Sclerosis Society-New York City Chapter, New York Association of Psychiatric Rehabilitation Services, New York Lawyers for the Public Interest, New York State Independent Living Council, and the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities in Support of Plaintiff-Appellant.).

Before: WALKER, Chief Judge, OAKES and PARKER, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge:

This appeal stems from plaintiff-appellant Francisco Garcia's dismissal from a New York state medical school, the State University of New York Health Sciences Center at Brooklyn ("SUNY"), following his repeated failure to successfully complete the first-year medical school curriculum. After his dismissal, Garcia visited a psychologist who subsequently diagnosed him as having attention deficit disorder and a learning disability. Relying on this diagnosis, Garcia sought readmission to SUNY. Although SUNY agreed to readmit Garcia, the two could not come to terms on how much of the first-year curriculum Garcia would have to retake and so Garcia never actually re-enrolled.

Instead, Garcia brought suit against defendants-appellees SUNY and various SUNY administrators and professors. Garcia's complaint alleged violations of (1) the free speech guarantee of the First Amendment, see U.S. Const. amend. I, (2) Title II of the Americans with Disabilities Act ("ADA"), see 42 U.S.C. § 12132, and (3) § 504 of the Rehabilitation Act, see 29 U.S.C. § 794a(a)(2). The complaint was dismissed by the United States District Court for the Eastern District of New York (Reena Raggi, District Judge). See Garcia v. State Univ. of New York Health Sciences Ctr. at Brooklyn, No. CV 97-4189, 2000 WL 1469551 (E.D.N.Y. Aug.21, 2000). We affirm the district court's judgment dismissing the complaint.

Among other issues, this appeal raises the following question of first impression: whether, consistent with the Eleventh Amendment's guarantee of state sovereign immunity, Title II of the ADA and § 504 of the Rehabilitation Act may be applied against non-consenting states in private suits seeking money damages.

BACKGROUND

Garcia enrolled in the medical program at SUNY in the fall of 1993. His first year was not a successful one. Garcia failed four courses — gross anatomy, genetics, neuroscience, and epidemiology — and was in the lowest quartile in four others.

On May 12, 1994, after he received his failing mark in gross anatomy, Garcia and six other students who failed the course wrote a letter to the Chairman of the Department of Anatomy and Cell Biology, Dr. M.A.Q. Siddiqui. The letter requested a change in SUNY's policy that required them to retake the entire gross anatomy course over the summer. They sought instead to retake only the portions of the course they had failed. Their request was rejected.

Because of Garcia's poor grades, the First Year Grades Committee ("Grades Committee") recommended that he repeat the entire first year curriculum. Garcia appealed this decision to the Academic Promotions Committee ("Promotions Committee"). He denied that he had any "difficulty understanding concepts, solving problems or learning material" and stated that he could do better next year by working harder. The Promotions Committee upheld the Grades Committee's decision and required Garcia to repeat the first year curriculum.

Garcia's second year at SUNY (1994-95), which represented his second try at the first year curriculum, while somewhat improved, was still unsuccessful. He failed neuroscience again and barely passed embryology and histology/cell biology. This time the Grades Committee, after reviewing his academic record, recommended that he be dismissed. The Promotions Committee agreed and, in June 1995, Garcia was officially dismissed from SUNY.

Thereafter, Garcia arranged to be examined by an outside psychologist, Dr. Elizabeth Auricchio. She diagnosed him as having attention deficit disorder ("ADD") and a learning disability ("LD"). On approximately August 1, 1995, Garcia forwarded this diagnosis to SUNY with a request that he be readmitted and either have his neuroscience grade adjusted to a passing mark or be permitted to take a make-up neuroscience exam scheduled for August 14, 1995.

On August 7, 1995, SUNY agreed to readmit Garcia, but refused to adjust his neuroscience grade or to permit him to sit for the August 14th make-up. Instead, SUNY conditioned Garcia's readmission on his (1) retaking the second and third trimesters of the first year curriculum, (2) working with SUNY's counselors to develop a study regimen to overcome his ADD and LD difficulties, and (3) undergoing a psychiatric evaluation and, if appropriate, treatment for his ADD.

Garcia states that "given his age (31 at the time), [his] financial situation and the humiliation he would face in explaining to family and friends that he was redoing the first year curriculum a third time, he rejected SUNY's proposal." He responded with a counter-proposal that he be permitted to advance to the second year curriculum without successfully completing neuroscience, and the following summer retake a neuroscience make-up course or make-up exam. SUNY rejected this proposal, explaining that,

[a] student must successfully complete all basic science courses in the year in order to progress into the succeeding year. With your "Unsatisfactory" grade in Neuroscience, a major course in the first year curriculum, you are not eligible to take second year courses.

No further proposals were made, and Garcia was not readmitted to SUNY.

Garcia filed suit in federal district court in Brooklyn seeking $5 million in damages from SUNY and the other defendants; Garcia did not request injunctive relief. His complaint alleged (1) that his dismissal from SUNY in June 1995 was in retaliation for the May 1994 letter he had co-authored to Dr. Siddiqui opposing SUNY's requirement that he retake gross anatomy during that summer, and (2) that the defendants' refusal to permit him to sit for the makeup neuroscience exam or to adjust his 1994-95 neuroscience exam to a passing mark violated both Title II of the ADA and § 504 of the Rehabilitation Act.

Judge Raggi granted summary judgment in favor of the defendants. She concluded, inter alia, that (1) the letter to Dr. Siddiqui did not involve speech on a matter of "public concern" and thus was not protected by the First Amendment, and (2) the accommodations Garcia sought under Title II and § 504 were unreasonable. This appeal followed.

While the appeal was pending, the Supreme Court handed down its decision in Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). The Court held that Title I of the ADA, which prohibits the states, municipalities and other employers from "discriminat[ing] against a qualified individual with a disability because of th[at] disability... in regard to ... terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a), is not an effective abrogation of state sovereign immunity under the Eleventh Amendment. See Garrett, 121 S.Ct. at 967-68. In light of Garrett, we requested that the parties brief the question of whether Title II of the ADA and § 504 of the Rehabilitation Act validly abrogate state sovereign immunity. The United States intervened with respect to this question.

DISCUSSION
I. First Amendment Retaliation

Garcia contends that in dismissing his First Amendment retaliation claim, the district court erroneously relied on the "public concern" doctrine to hold that his May 1994 letter to Dr. Siddiqui was not protected speech. Under the public concern doctrine, when "expression cannot be fairly considered as relating to any matter of political, social or other concern to the community," but is simply a personal matter, it is not afforded First Amendment protection. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

SUNY correctly concedes that the public concern doctrine does not apply to student speech in the university setting, see Qvyjt v. Lin, ...

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