Opinion
Civil Action No. 01-2002 Section: E/5
January 18, 2002
RULING ON MOTIONS
Plaintiff Theodore Johnson ("Mr. Johnson"), proceeding pro se, filed suit against defendants alleging various violations of his constitutional and civil rights. All defendants have filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Record Doc. Nos. 7 (UNO), 11 (State of Louisiana, Dept. of Education, President of the LSU system), 19 (Board of Regents).) Defendant University of New Orleans ("UNO") also moved to dismiss because UNO is not a proper party defendant, and alternatively moved for a more definite statement. (Record Doc. No. 7.) Mr. Johnson filed a motion for judgment by default against defendants State of Louisiana, Louisiana Department of Education, and President of the L.S.U. System. (Record Doc. No. 10.) All motions were taken under submission at an earlier date.
FACTS
The facts as stated in Mr. Johnson'S original and amended complaints are sketchy. Mr. Johnson was a full time student at UNO. He is disabled due to partial paralysis of his left foot and is able to walk only short distances. The Veteran's Administration paid for Mr. Johnson's first two years at UNO through its Vocational/Rehabilitation program. He continued his education at UNO upon receipt of financial aid administered by a UNO program which Mr. Johnson alleges receives federal funds.
In February of 2000, Mr. Johnson resigned from UNO during the semester due to a medical emergency. He provided to UNO a statement from his doctor relative to his medical condition. On June 13, 2000, UNO notified Mr. Johnson that he was no longer eligible to receive financial aid. Apparently disregarding his doctor's statement, UNO required him to file a written appeal. His appeal was ultimately successful, but he was not notified until after the Fall 2000 semester was already underway. In addition, the appeals committee imposed specific academic requirements (referred to as "sanctions" by Mr. Johnson) on him for his continued receipt of financial aid:
1. That he successfully complete 75% of the courses he registered for in the Fall 2000 semester;
2. That he attain at least a 2.50 semester G.P.A. for the Fall 2000 semester.
Mr. Johnson claims that as a result of his belated start in his classes, he was only able to attain a 1.97 G.P.A. It is not clear from his complaint and amended complaint exactly what next transpired, but on or about January 16, 2001, Mr. Johnson received a scholastic warning for having a G.P.A. of 1.97, and received a letter from someone at UNO which stated that he had been denied financial aid for the Spring 2001 semester and informed him that there "was no possibility of an appeal". There is no copy of the letter in the record. He apparently notified UNO that it was in violation of 28 C.F.R. § 35.130 (b)(3) and requested special consideration for his disability under 28 C.F.R. § 35.130 (c), which was denied.
In his original complaint, Mr. Johnson states that the letter was from Christine M. Flugg, Associate Vice Chancellor for Enrollment Management (Financial Aid), but in his amended complaint he refers to an undated letter from Jenifer Burton, Appeals Committee Chairperson, denying him financial aid for the spring 2001 semester.
Mr. Johnson alleges that UNO illegally denied him financial aid and thus discriminated against him by effectively denying him admission to UNO. The crux of Mr. Johnson's complaint is that it was UNO's financial aid office's own actions (i.e. its excessive delay in granting his appeal of the denial of his financial aid for the Fall 2000 semester), that caused him to be unable to comply with the heightened academic requirements imposed upon him as a condition of his continued receipt of financial aid. He further complains that the heightened academic requirements imposed on him violate applicable Federal Department of Education regulations on the eligibility of students for financial aid, and were imposed upon him in retaliation for his prior appeals and complaints that financial aid's actions violate applicable Federal regulations.
Mr. Johnson alleges that the financial aid appeals process is secretive and unfair because the rules are excessively vague and narrowly interpreted, and because those students affected are not allowed to appear in person before the appeals committee. He alleges that financial aid's "Satisfactory Academic Progress Policy for Financial Aid/Scholarships Earned/Pursued Hours" ratio and G.P.A. standard has a discriminatory effect because it tends to "screen out" disabled students. Finally, Mr. Johnson takes a parting shot aimed at the Louisiana Tuition Opportunity Program for Students (TOPS), LSA-R.S. 17:3048.1, alleging that it violates federal regulations (34 C.F.R. § 110 et seq.) because it has age limitations and other discriminatory regulations which presumably exclude him from participating in or receiving any financial aid from that program.
Mr. Johnson also takes the opportunity to complain that UNO's counseling program for students is so substandard as to qualify as no counseling at all. Even assuming that his allegation is true, he has not alleged how this violates any of his civil or constitutional rights or any applicable statutory mandates or regulations, and indeed the Court can comprehend no such violations.
Mr. Johnson alleges that defendants' actions violated his civil rights pursuant to 42 U.S.C. § 1983 by depriving him of his constitutional right to due process and equal protection under the Fourteenth and Fifth Amendments, violated the Ninth Amendment, as well as Title II of the Americans with Disabilities Act ("ADA") ( 42 U.S.C. § 12101 et seq.), Section 504 of the Rehabilitation Act ( 29 U.S.C. § 794), the National Education Reform Act ( 20 U.S.C. § 5801), and 20 U.S.C. § 1091, 1099, and 12211-1, 42 U.S.C. § 2000c-8, and the Louisiana Constitution of 1974 Art. 1, §§ 2 and 22. He asks for actual damages, compensatory damages, punitive damages, attorney fees, court costs and interest.
LAW
Dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is proper only if the pleadings on their face reveal beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief, or if an affirmative defense or other bar to relief appears on the face of the complaint. Garrett v. Commonwealth Mortg. Corp. of America, 938 F.2d 591, 594 (5th Cir. 1991). Moreover, the Court must assume that the allegations in plaintiff's complaint are true, and must resolve any doubt regarding the sufficiency of plaintiff's claims in his favor. Fernandez-Montes v. Allied Pilots Ass'n., 987 F.2d 278, 284 (5th Cir. 1993). Motions to dismiss for failure to state a claim are disfavored in the law because the Federal Rules of Civil Procedure "require only 'notice' pleading — that is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests". Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 926 (5th Cir. 1988) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2))). At the pleading stage on a motion to dismiss, the Court presumes that general factual allegations embrace those specific facts that are necessary to support the claim. Lujan v. National Wildlife Federation, 497 U.S. 890, 110 S.Ct. 3177, 3189, 111 L.Ed.2d 695 (1990). However, "dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1991). Moreover, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss". Id.
ANALYSIS I. PROPER PARTY DEFENDANTS UNO
Defendant UNO correctly argues that it is not the proper party defendant in this action. UNO is a member of the Louisiana State University system. La. R.S. 17:3215. Pursuant to LSA-R.S. 17:3351, it is the power, duty and function of the appropriate supervisory college or university boards to "sue and be sued". The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU Board of Supervisors") is the proper party to sue or be sued on behalf of UNO. See Delahoussaye v. City of New Iberia, 937 F.2d 144, 148 (5th Cir. 1991) (The Board, not the University, has the right to sue and be sued in its own name). UNO must be dismissed as a defendant, and plaintiff may amend his complaint to add the LSU Board of Supervisors as the proper defendant.
The Louisiana State University system consists of the institutions under the supervision and management of the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, which includes LSU (Baton Rouge), UNO, LSU at Alexandria, LSU at Eunice, LSU at Shreveport, and the health sciences center (medical center). LSA-R.S. 17:3215.
For the sake of consistency and simplicity, the Court will continue to refer to UNO as a defendant in this document. Any discussion or rulings herein applying to UNO will also be applicable to the LSU Board of Supervisors.
President of the LSU System
It is unclear from Mr. Johnson's complaint and amended complaint whether the President of the LSU System is sued in his individual or official capacity. The President of the LSU System argues that he is not a proper party defendant under the Rehabilitation Act or the ADA if sued in his individual capacity. The Rehabilitation Act ( 29 U.S.C. § 794 (b)) prohibits discrimination against disabled persons "under any program or activity receiving Federal financial assistance." Title II of the ADA ( 42 U.S.C. § 12132) likewise prohibits discrimination in "services, programs, or activities of a public entity". The enforcement provision of Title II, at 42 U.S.C. § 12133, incorporates the "remedies, procedures and rights set forth in section 794a of Title 29," the enforcement provision of the Rehabilitation Act. In Lollar v. Baker, 196 F.3d 603 (5th Cir. 1999), the Fifth Circuit noted that the enforcement provision of the statute provides for suit against "any program or activity". Id. at 609. That Court held that the program is the recipient of the federal financial assistance, therefore the plaintiff cannot sue an individual under the Act. Id. The President of the LSU system in his individual capacity must be dismissed as a defendant as to claims brought pursuant to the ADA and Rehabilitation Act.II. SOVEREIGN IMMUNITY
All defendants argue that plaintiff's claims against them pursuant to the ADA, the Rehabilitation Act and his claims for deprivation of civil rights pursuant to Section 1983 are barred by Eleventh Amendment immunity. Mr. Johnson argues that the state waived its sovereign immunity by accepting federal funding for its educational institutions.
Defendants State of Louisiana, Louisiana Department of Education and President of the LSU System also argue that plaintiff's ADA claims should be dismissed because plaintiff has not exhausted his administrative remedies. The plaintiff sued under Title II of the ADA (prohibiting discrimination in public services, programs or activities), not Title I (prohibiting discrimination in employment). A plaintiff must exhaust administrative remedies prior to suit pursuant to Title I of the ADA, not Title II. Defendants' argument is irrelevant to the case at bar.
Citing Cozzo v. Tangipahoa Parish Council, et al, 262 F.3d 501 (5th Cir. 2001) Mr. Johnson also argues incorrectly that defendant UNO is a "political subdivision" of the state, therefore is not entitled to sovereign immunity. As discussed herein, UNO is not a proper party defendant. The LSU Board of Supervisors is the proper defendant in place of UNO.
The Eleventh Amendment to the United States Constitution bars suits in federal court against a state by its own citizens, regardless of the nature of the relief sought. Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 103, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2001); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.2d 842 (1890); LeSage v. State of Texas, 158 F.3d 213, 216 (5th Cir. 1998), rev'd in part on other grounds and remanded, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). The Eleventh Amendment bars suits for both money damages and injunctive relief unless the state has waived its immunity or Congress has abrogated it. LeSage, 158 F.3d at 216; Cozzo, 262 F.3d at 508; Nihiser v. Ohio Environmental Protection Agency, 269 F.3d 626, 627 (6th Cir. 2001). By statute, Louisiana has refused to waive its Eleventh Amendment immunity. Cozzo, 262 F.3d at 508; LSA-R.S. § 13:5106(A). However, a state may "waive its immunity by voluntarily participating in federal spending programs when Congress expresses 'a clear intent to condition participation in the programs . . . on a State's consent to waive its constitutional immunity.'" Pederson v. Louisiana State University, 213 F.3d 858, 876 (5th Cir. 2000) (citing Litman v. George Mason University, 186 F.3d 544, 550 (4th Cir. 1999) (quoting Atascadero State Hosp., 473 U.S. at 247, 105 S.Ct. 3142), cert. denied, 528 U.S. 1181, 120 S.Ct. 1220, 145 L.Ed.2d 1120 (2000)). Congress may abrogate a state's Eleventh Amendment immunity only by "unequivocally" expressing its intent to do so and by acting "pursuant to a valid exercise of power". Cozzo, 262 F.3d at 508 (citing Fla. Prepaid Postsecondary Educ. Expenses Bd. v. Coll. Sav. Bank, 527 U.S. 627, 634 (1999)).
"Eleventh Amendment immunity, if applicable, is shared by a state's agencies and officers to the extent that the state is the 'real, substantial party in interest.'" Lesage, 158 F.3d at 216 (citing Pennhurst State School Hospital, 465 U.S. at 101, 104 S.Ct. at 908 (other citations omitted)). The Louisiana Department of Education is an executive department of the State of Louisiana and shares the State's sovereign immunity. La. R.S. 36:642 (West Supp. 2001); and see Darlak v. Bobear, 814 F.2d 1055, 1059 (5th Cir. 1987) (citing Voisin's Oyster House, Inc., v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986) and finding that the Department of Health and Human Resources is an arm of the state because it was created as part of the executive branch by state statute). The Board of Regents (which oversees the LSU Board of Supervisors among other State educational systems) and the LSU Board of Supervisors, are considered to be agencies of the State of Louisiana. Delahoussaye, 937 F.2d at 147; and see Boston v. Tanner, 29 F. Supp.2d 743, 745-47 (W.D. La. 1998). If the State of Louisiana is entitled to Eleventh Amendment immunity, so are those defendants.
Darlak, Delahoussaye and Boston each evaluated the respective agencies' immunity using the same factors to determine whether "the state is the real, substantial party in interest" that the Cozzo court used: 1) whether the state statutes and case law view the agency as an arm of the state; 2) the source of the entity's funding; 3) the entity's degree of local autonomy; 4) whether the entity is concerned primarily with local as opposed to statewide problems; 5) whether the entity has the authority to sue and be sued in its own name; and 6) whether the entity has the right to hold and use property. See Cozzo, 262 F.3d at 508 (citing Hudson v. City of New Orleans, 174 F.3d 677 681 (5th Cir. 1999)).
The President of the LSU System argues that if sued in his official capacity, he is entitled to Eleventh Amendment immunity because a suit against a state official is essentially a suit against the state. See Pennhurst State Sch. Hospital, 465 U.S. at 101, 104 S.Ct. at 908; Brennan v. Stewart, 834 F.2d 1248, 1251 (5th Cir. 1988). However, a suit against a state official seeking to enjoin that official's unconstitutional acts or violation of a federal statute is not considered to be a suit against the state itself, thus is not barred by the Eleventh Amendment. Pennhurst, 465 U.S. at 103, 104 S.Ct. at 909; Brennan, 834 F.2d at 1252 (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). Thus, the President of the LSU system, while immune from suits seeking money damages, is not immune from suits seeking prospective injunctive relief from his acts that violate a person's statutory or constitutional rights. See id.
A. Section 504 of the Rehabilitation Act
Mr. Johnson alleges that defendants violated Section 504 of the Rehabilitation Act by refusing to provide a reasonable accommodation requested by him in consideration of his disability. He also alleges that UNO's financial aid eligibility standards are applied in such a way as to have a discriminatory impact on most disabled students.
Section 504 prohibits discrimination against "a qualified individual with a disability . . . solely by reason of his or her disability" in any program or activity that receives Federal financial assistance. 29 U.S.C. § 794. "Section 504 has been construed 'as prohibiting disadvantageous treatment, rather than as mandating preferential treatment.'" Brennan, 834 F.2d at 1259-60 (citing Wimberly v. Labor Industrial Relations Comm'n, 479 U.S. 511, 107 S.Ct. 821, 825, 93 L.Ed2d 909 (1987)). However, while the Supreme Court has made clear that "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person", the federal grantee may, under some circumstances, have some affirmative duties. Brennan, 834 at 1260 (quoting Southeast Community College v. Davis, 442 U.S. 397, 412-13, 99 S.Ct. 2361, 2370-71, 60 L.Ed.2d 980 (1979)). Aggrieved individuals are entitled to sue for money damages as well as prospective injunctive relief. See Lane v. Pena, 518 U.S. 187, 198, 116 S.Ct. 2092, 2099, 135 L.Ed.2d 486 (1996)
In response to the Supreme Court's decision in Atascadero State Hospital , Congress amended the Rehabilitation Act by enacting the "equalization" provision, codified at 42 U.S.C. § 2000d-7, which "craft[ed] an unambiguous waiver of the States Eleventh Amendment immunity." Lane, 116 S.Ct. at 2099-2100. That section provides:
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [ 29 U.S.C.A. § 794], title IX of the Education Amendments of 1972 [ 20 U.S.C.A. § 1681], the Age Discrimination Act of 1975 [ 42 U.S.C.A. § 6101], title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.42 U.S.C. § 2000d-7. While the Fifth Circuit has not directly addressed the issue, in Reickenbacker v. M.J. Foster, Jr., 2001 WL 1540402, *7, ___ F.3d ___, (5th Cir. (La.) 2001), it noted that in Lane, the Supreme Court held that 42 U.S.C. § 2000d-7 created a waiver of Eleventh Amendment immunity with respect to those statutes listed in Section 2000d-7. Id. at n. 73. Moreover, in Pederson the Fifth Circuit considered whether, for purposes of Title IX of the Education Act of 1972, 42 U.S.C.A. § 2000d-7 created a valid waiver of Eleventh Amendment immunity when a state accepts federal funds. Pederson, 213 S.Ct. at 876. That Court adopted the reasoning and holding of the Fourth Circuit in Litman when it held that Louisiana State University had waived its Eleventh Amendment immunity from suit pursuant to Title IX of the Education Act of 1972 by accepting federal funds for its educational institutions. The LeSage court reached the same conclusion with regard to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. LeSage, 158 F.3d at 219. This Court concludes that the Fifth Circuit's reasoning and holdings in both Pederson and LeSage is equally applicable to Section 504 of the Rehabilitation Act, also an enumerated statute under 42 U.S.C. § 2000d-7.
In Reickenbacker, the Fifth Circuit explicitly declined to consider plaintiffs' argument that Louisiana has waived its immunity under the Rehabilitation Act when it accepted federal monies because plaintiffs had failed to raise the issue in the district court. Id. at *6.
Mr. Johnson has alleged that UNO receives federal funds for its financial aid program. Assuming that is true, as required when considering a motion to dismiss, then defendants waived their Eleventh Amendment immunity from claims for money damages and/or injunctive relief pursuant to Section 504 of the Rehabilitation Act by accepting federal funds.
B. Title II of the ADA
Mr. Johnson also claims damages for defendants' alleged violation of Title II of the ADA. In contrast to the Rehabilitation Act, Title II of the ADA creates an "affirmative accommodation obligation on the part of public entities" to avoid discrimination against disabled individuals. 42 U.S.C. § 12132; Reickenbacker, 2001 WL 1540402 at *6. In light of the Supreme Court's decision in Garrett, in Reickenbacker the Fifth Circuit revisited its holding in Coolbaugh that Congress had validly abrogated states' sovereign immunity when it enacted the ADA. Following the Supreme Court's lead, and agreeing with other circuits that have considered the issue, the Fifth Circuit held that Congress had not validly abrogated the states' Eleventh Amendment immunity when it enacted the ADA. Reickenbacker, 2001 WL 1540402 at *6.
In Garrett, the Supreme Court held that Congress had not validly abrogated of Eleventh Amendment immunity to suits brought pursuant to Title I of the ADA. Garrett, 121 S.Ct. at 962.
Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998), cert. denied, 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998).
Nihiser v. Ohio Environmental Protection Agency, 269 F.3d 626 (6th Cir. 2001); Thompson v. Colorado, 258 F.3d 1241 (10th Cir. 2001); Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 2591, 150 L.Ed.2d 750 (2001); Clark v. California, 123 F.3d 1267 (9th Cir. 1997); Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000), cert denied, Wilson v. Armstrong, 524 U.S. 937, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998).
Mr. Johnson appears to argue that Louisiana's acceptance of federal funds for its educational institutions operates as an "across the board" waiver of its Eleventh Amendment immunity as to all of his claims. This Court found no cases in which any court has addressed the issue of whether a state's acceptance of federal funds constitutes a waiver of its Eleventh Amendment immunity for purposes of suit against a state pursuant to Title II of the ADA. The Court, however, takes note of the Fifth Circuit's adoption of the "strident" test for finding such a waiver, see Pederson, 213 F.3d at 876 (citing College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Ed., 527 U.S. 666, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999)). The Pederson Court held "that in 42 U.S.C. S 2000d-7(a)(a) [sic] congress has successfully codified a statute which clearly, unambiguously, and unequivocally conditions receipt of federal funds under Title IX on the State's waiver of Eleventh Amendment Immunity". Id. at 876. The ADA was enacted after 42 U.S.C. § 2000d-7, and that statute has not been amended by congress to "clearly, unambiguously and unequivocally" include the ADA within its scope.
All defendants except the President of the LSU system are immune from Mr. Johnson's claims pursuant to Title II of the ADA. Under the Ex parte Young doctrine, sovereign immunity "is no bar to suits for injunctive relief against state officials" for violation of the ADA. Id. at *1; Garrett, 121 S.Ct. at 968, n. 9. Mr. Johnson has not asked for prospective injunctive relief. He may amend his petition to do so if he wishes.
C. Civil Rights Violations
Mr. Johnson alleges that under color of state law, in violation of 42 U.S.C. § 1983, defendants violated his Fourteenth and Fifth Amendment due process and equal protection rights, and the Ninth Amendment. "In the context of a 12(b)(6) motion in a Section 1983 suit, the focus should be 'whether the complainant properly sets forth a claim of a deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States caused by persons acting under color of state law.'" Fontana v. Barham, 707 F.2d 221, 225 (5th Cir. 1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984)
Mr. Johnson also alleges a violation of 42 U.S.C. § 2000c-8. That section, enacted as part of the Civil Rights Act of 1964 "expressly preserves pre-existing private remedies against discrimination 'in public education,' which would include the remedies provided by § 1983." Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 1972 at n. 12, 60 L.Ed.2d 560 (1979) (White, J., dissenting). It does not create a new private right of action.
Congress did "not explicitly and by clear language indicate on its face" an intent to abrogate the States' Eleventh Amendment immunity in enacting Section 1983, and the State of Louisiana has not waived its sovereign immunity in such cases. LSA-R.S. 13:5106(A); Cozzo, 262 F.3d at 508; Brennan, 834 F.2d at 1252 (citing Edelman v. Jordan, 415 U.S. 651, 675-76, 94 S.Ct. 1347-1361-62, 39 L.Ed.2d 662 (1979)). The State of Louisiana, including its executive department and agencies, is immune from Mr. Johnson's Section 1983 suit for violation of his constitutional or federal statutory rights. Under the Ex parte Young doctrine, the President of the LSU System is immune from Mr. Johnson's claims pursuant to § 1983 for money damages, but not from a claim for prospective injunctive relief.
i. Due Process
"Procedural due process imposes constraints on governmental decisions which deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Elderidge, 424 U.S. 319, 96 S.CL. 893, 901, 47 L.Ed.2d 18 (1976). "[T]he fourteenth amendment's due process safeguards extend to the 'interests that a person has already acquired in specific benefits'". Mahone, 836 at 929 (citing Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 54 (1972)); and see Mathews, 96 S.Ct. at 901. "This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. . . . The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews, 96 S.Ct. at 902 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)).
Mr. Johnson alleges that he was deprived of his eligibility for financial aid without a meaningful hearing or an appeal. Although his complaint and amended complaint provide precious little in the way of material facts to support his claim, he has, at a bare minimum, stated a claim for violation of his right to due process.
ii. Equal Protection
The equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." Brennan, 843 F.2d at 1257 (citing City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985)); Mahone, 836 F.2d at 932. State action through its administrative and regulatory agencies implicates the Fourteenth Amendment equal protection clause. Mahone, 836 F.2d at 932 (citing Robinson v. State of Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771 (1964)). Equal protection of the law requires not only that laws be equal on their face, but also that they be executed so as not to deny equality. Id. (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.2d 220 (1886)). "Even discretion may not be exercised on a discriminatory basis." Minton v. St. Bernard Parish School Board, 803 F.2d 129, 130 (5th Cir. 1986).
Mr. Johnson alleges (1) that UNO's financial aid regulations, when applied equally, have a discriminatory impact on disabled students, that is, that disabled students should be treated differently than non-disabled students to achieve equal protection, and (2) that he was singled out for application of heightened academic standards not applied to all financial aid recipients and in violation of applicable federal regulations. Again, Mr. Johnson's allegations are bare bones, lacking in supportive material facts, but enough make out a cause of action for violation of the equal protection clause.
iii. Ninth Amendment
Mr. Johnson's amended complaint alleges that UNO violated his Ninth Amendment rights by not allowing him "to appear in proper person to defend [himself] against accusations and charges made by the Financial Aid Appeals Committee." Amended Complaint, Section P. The Ninth Amendment states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The amendment was intended to protect from government infringement "additional fundamental rights" not specifically mentioned in the first eight constitutional amendments. Griswold v. State of Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 1684, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring opinion). Its purpose was not to create new substantive constitutional guarantees, but to avoid degrading or lowering unarticulated fundamental rights implicit but not enumerated in the Bill of Rights. Id. Mr. Johnson's complaint is in essence an allegation of violation of his right to procedural due process. Because his complaint alleges a violation of a specifically enumerated constitutional right, it does not implicate the Ninth Amendment. That claim must be dismissed.
III. FEDERAL EDUCATION STATUTES AND REGULATIONS
Mr. Johnson complains that defendants have violated various federal statutes and regulations that relate to public education. Specifically, he alleges that UNO violated 20 U.S.C. § 5801 et seq., the National Education Reform Act; 20 U.S.C. § 1091, relating to standards for student eligibility for some forms of financial assistance; 20 U.S.C. § 1099 (which probably should be § 1099a relating to states' and institutional responsibility to the Secretary of the Department of Education); and 20 U.S.C. § 1221-1, National Policy with respect to equal educational opportunity. The Court found no applicable enforcement provisions in any of these statutes granting a private right of action as to any person or entity for any violations of the various statues. To the extent that Mr. Johnson's complaint and amended complaint purport to claim damages for violations of any of these statutes, such claims must be dismissed.
Mr. Johnson also alleges at section XIX of his complaint that "Defendants use criteria that violates 20 U.S.C. § 1143". The Court notes that the statute was repealed by Pub.L. 105-244, Title I, § 101)b), Title VII, § 702, Oct. 7, 1998, 112 Stat. 1616, 1803.
IV. TOPS
Mr. Johnson complains that the Louisiana TOPS program, LSA-R.S. 17:3048.1, which provides free tuition and books to eligible Louisiana high school graduates who attend colleges and universities in Louisiana, violates 34 C.F.R. § 110 et seq. because its age restrictions are discriminatory. The federal regulation cited by Mr. Johnson is authorized by 42 U.S.C. § 6101 et seq., which prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance. The statute and the regulations cited by Mr. Johnson require the exhaustion of administrative remedies under the Act prior to filing a civil suit. 42 U.S.C. § 6104(f); 34 C.F.R. § 110:31. Mr. Johnson has not alleged that the TOPS program receives federal funds, nor has he indicated that he has exhausted his administrative remedies. His complaint relating to the TOPS program must be dismissed without prejudice.
V. LOUISIANA CONSTITUTIONAL DUE PROCESS
Mr. Johnson alleges that defendants violated Art. 1, § 2 of the Louisiana State Constitution of 1974. Section 2 guarantees due process of law to Louisiana citizens. Under Louisiana law, damages have been regarded as the appropriate remedy for violation of a person's constitutionally protected property interests. Moresi v. Dept. of Wildlife Fisheries, 657 So.2d 1081, 1093 (La. 1990).
Mr. Johnson also alleges a violation of § 22. Section 22 guarantees citizens access to the courts, which is not an issue in this matter, and will not be addressed.
The Louisiana Constitution due process clause does not offer greater protection against government misconduct than does federal constitutional due process. State v. Smith, 614 So.2d 778, 780, (La.App. 2 Cir. 1993). It "embodies the fundamental fairness guarantees inherent in its federal counterpart." In re C.B., 708 So.2d 391, 397 (La. 1998). It is not necessary for this Court to conduct a separate analysis of Mr. Johnson's state due process claim. If Mr. Johnson ultimately prevails on his federal due process claim, he coincidentally prevails on his state due process claim.
VI. UNO'S MOTION FOR A MORE DEFINITE STATEMENT
UNO argues that Mr. Johnson's complaint is so vague that it is unable to mount a defense. The Court agrees. Mr. Johnson's complaint and amended complaint make out a bare bones claim for violation of the Rehabilitation Act, Title II of the ADA, and his due process and equal protection rights. He has not, however, specified exactly how defendant's actions violated the statutes or his constitutional rights. A defendant is entitled to a more detailed recitation of the particular material facts on which the plaintiff contends he will establish his right to recovery from defendant. Brennan, 834 F.2d at 1251 (citing Elliot v. Perez, 751 F.2d 1472, 1482 (5th Cir. 1985)). In this matter, for example, material facts may include (but not necessarily be limited to) why Mr. Johnson was denied a right to appeal the denial of financial aid for the Spring 2001 semester, what accommodation did he request of whom and why was it denied, how the standards for maintaining eligibility for financial aid applied to him are different than those applied to other financial aid recipients, or exactly how does application of those standards have a discriminatory impact on disabled students. Mr. Johnson must amend his complaint to state material facts in support of his allegations.
The only claim for money damages that is viable as to all defendants is the claim of violation of the Rehabilitation Act. The ADA, due process and equal protection claims remain potentially viable as to the President of the LSU System, and then only as to prospective injunctive relief should Mr. Johnson wish to amend his complaint to request such relief.
VII. MR. JOHNSON'S MOTION FOR JUDGMENT BY DEFAULT
Mr. Johnson moved for a judgment by default against the State of Louisiana, the Department of Education and the President of the LSU System for failure to timely answer his complaint. According to the record, those parties were served by certified mail on July 12 and 13, 2001. They first filed a pleading, these motions to dismiss, on September 21, 2001. There is nothing in the record indicating that those defendants requested an extension of time in which to answer or otherwise plead. While defendants have offered no reason for it, the delay occurred very early in the litigation and had no significant impact on the timing of judicial proceedings, and there is no danger of prejudice to plaintiff in this matter because of the delay. Taking all circumstances into account, see Pioneer Inv. Services v. Brunswick Associates, 507 U.S. 380, 113 S.Ct. 1489, 1495, 123 L.Ed.2d 74 (1993), Mr. Johnson's motion for a judgment of default is denied.
Accordingly, upon considering the complaint and amended complaint, all parties briefs and reply briefs, and the law,
IT IS ORDERED that plaintiff Theodore Johnson's motion for a judgment of default against defendants State of Louisiana, Department of Education and President of the LSU System BE AND IS HEREBY DENIED, and
IT IS FURTHER ORDERED that all defendants' motions to dismiss plaintiff's complaint against them for violation of Section 504 of the Rehabilitation Act BE AND ARE HEREBY DENIED, and
IT IS FURTHER ORDERED that all Defendants' motions to dismiss plaintiff's claims for money damages against them for violations of Title II of the ADA, federal due process and federal equal protection rights, the Ninth Amendment, and the various federal education statutes and regulations BE AND ARE HEREBY GRANTED; and
IT IS FURTHER ORDERED that plaintiff's complaint against all defendants for age discrimination in violation of 42 U.S.C. § 6101 et seq., BE AND ARE HEREBY DISMISSED WITHOUT PREJUDICE, and,
IT IS FURTHER ORDERED that Defendant UNO's motion for a more definite statement BE AND IS HEREBY GRANTED, and
IT IS FURTHER ORDERED that Defendant UNO's motion to dismiss it as a defendant BE AND IS HEREBY GRANTED, and
IT IS FURTHER ORDERED that Plaintiff Theodore Johnson is hereby ORDERED to amend his complaint within sixty (60) days as provided herein.