               Case: 14-14882       Date Filed: 04/11/2016      Page: 1 of 37


                                                                  [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 14-14882
                              ________________________

                         D.C. Docket No. 2:12-cv-02458-AKK


DOUGLAS LEE ROLLINS, III,
                                                                  Plaintiff-Appellant,

                                            versus

THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF ALABAMA &
MICHAEL S. REDDY, DMD, Dean of
the School of Dentistry, in his official and
individual capacities,
                                                                  Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                      (April 11, 2016)

Before ED CARNES, Chief Judge, JILL PRYOR, Circuit Judge, and REEVES,*
District Judge.

* Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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REEVES, District Judge:

      Appellant Douglas Lee Rollins was dismissed from the University of

Alabama at Birmingham’s School of Dentistry for poor academic performance

after completing two semesters. Rollins, a white male, brought suit against the

university’s Board of Trustees alleging race and gender discrimination. He also

sought declaratory and injunctive relief against the Board of Trustees and the

School of Dentistry’s Dean, Dr. Michael S. Reddy. Rollins now appeals the

district court’s order denying his motion for summary judgment and granting

summary judgment for the defendants. We affirm the district court’s decision.

                                          I.

      In July of 2011, Rollins began classes at the University of Alabama at

Birmingham’s (UAB) School of Dentistry. Rollins failed a three-hour course in

Dental Anesthesia during his second semester. Under the dental school’s official

academic guidelines, “[a]ny failing course grade must be remediated.” On June 4,

2012, Rollins met with Dr. Patrick Louis, the Dental Anesthesia course director, to

discuss the possibility of either raising his grade or remediating the course. Dr.

Louis advised Rollins that the school’s Academic Performance Committee

(“APC”) would determine whether he was eligible for remediation. Dr. Louis also

suggested that Rollins might be required to submit an essay on an area that he

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struggled to grasp during the class. A week later, Rollins submitted a research

paper entitled “Clinical Complications of Dental Anesthesia.”

      On June 20, 2012, the APC met to discuss the School of Dentistry students’

2012 grades. Under the academic guidelines, the APC could recommend that a

student repeat a year of course work or be dismissed from the dental school for

“any failing grade” or “continued poor/marginal academic performance.” Before

the June 20th meeting, Dr. Kenneth Tilashalski, the School of Dentistry’s

Associate Dean, sent information to APC members regarding the academic

performance of students who would come before the group for review. Rollins

takes issue with Dr. Tilashalski’s representations to the committee members in an

e-mail dated June 8, 2012. Dr. Tilashalski prefaced the e-mail by explaining that

the information was incomplete “as grades [were] not due until next Friday.”

Regarding Rollins, Dr. Tilashalski wrote:

      • Failed Dental Anesthesia. I cannot recall the last time that a
        student has failed this course (if ever). . . .
      • Failed Gross Anatomy with a 53.3% average but successfully
        passed the retest. The course syllabus in Gross Anatomy indicates
        that a retest will only be offered to students that have final course
        grades between 60-69%. I have emailed the course director for
        clarification of why Lee was even offered the retest – it seems like
        he should have failed Gross Anatomy as well.
      • After the fall term (and prior to the failure of [Cardiovascular-
        Renal]), Lee was 51/56 students.
      • He has received multiple marginal [grades] (lots of “C” grades)
        with the grades reported so far for the spring 2012 term.

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      • Failed individual exams in Fundamentals. This is particular[ly]
        troublesome. Lee was allowed to take the Fundamentals courses as
        an Oral Biology student (he was in the Oral Biology program prior
        to getting into dental school – he did not receive his masters degree
        due to GPA below 3.0). He received “C” grades in both
        Fundamental courses as an Oral Biology master student. So this
        was the 2nd time he took the Fundamentals courses and he still
        was not able to pass all of the exams, . . . although he was able to
        pull his grades up and ultimately received “B” grades for
        Fundamentals I & II.

      Dr. Tilashalski received an e-mail on the same date from Dr. Steven Zehren,

the course director for Gross Anatomy, regarding the retest. The course syllabus

provided that, “[s]tudents who earn a grade of 60-69 in the course will be allowed

to take a competency exam. . . . If a student receives a grade of 70 or higher on the

competency exam, he/she will then receive the lowest possible passing grade for

the course (ie, 70=C).” Dr. Zehren explained in his e-mail that, in 2009, he

allowed seven students who fell below the sixty percent cut-off to take the retest.

In 2012, Rollins completed the course with a fifty-three percent average, the only

student with a grade below a sixty percent. According to Dr. Zehren, Rollins was

allowed to retest based on the 2009 precedent and because there would be little to

no opportunity for him to make-up the class. After receiving Dr. Zehren’s e-mail,

Dr. Tilashalski promptly forwarded it to the APC committee members.

      During the June 20th meeting, the APC held an open discussion regarding the

students under review. Thereafter, the APC voted to dismiss Rollins and an

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African-American female student from the same class. The APC also voted to

allow a white female student to repeat her first year of dental school. Comparator

One (the African-American female who was dismissed by the APC) ranked last in

her class at the end of the spring semester. During that semester, she received

scores of one B, six Cs, and one pass. The student also received a score of F in a

six-hour course (Cardiovascular-Renal), resulting in a 1.95 grade point average

(“GPA”) for the semester and a cumulative GPA of 2.38.

      Comparator Two (the white female who was allowed to repeat the year)

ranked second to last in her class. This student also failed Cardiovascular-Renal in

her second semester while receiving scores of three Bs, four Cs, and one pass,

resulting in a semester GPA of 2.10 and a cumulative GPA of 2.55. Comparators

One and Two were allowed to take the comprehensive retest offered in

Cardiovascular-Renal; however, both failed the retest.

      During his first semester, Rollins received scores of two As, seven Bs, and

two passes, resulting in a 3.17 GPA. He ranked fifty-first out of the fifty-six first

year dental students that semester. At the end of the second semester, Rollins

received scores of four Bs, three Cs, one F, and one pass, resulting in a 2.34 GPA

for the semester and a 2.72 cumulative GPA. At the end of the second semester,

Rollins ranked third to last in his class.


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      Dr. Tilashalski informed Rollins by letter dated June 21, 2012, that the APC

had voted to dismiss him from the dental school. Dr. Tilashalski also met with

Rollins prior to the APC’s meeting and explained the appeals process. The dental

school’s academic guidelines provide for two types of appeals: a grade appeal and

an academic status appeal. For a grade appeal, the guidelines require that the

student first seek clarification from the course director. If discussions with the

course director did not resolve the appeal, the student was required to submit a

written appeal to the chair of the department in which the contested grade was

given. If the chair of the department did not grant the appeal, the student could

appeal to the Associate Dean.

      On June 26, 2012, Rollins notified Dr. Louis that he was appealing his grade

in Dental Anesthesia. Rollins claimed in his notice that Dr. Louis’ grading was

inconsistent and arbitrary. He also attached his “Clinical Complications of Dental

Anesthesia” paper. Rollins made the same claim in an e-mail to Dr. Peter Waite,

the chair of Dr. Louis’ department. Four days later, Dr. Louis denied Rollins’

appeal and his request to remediate. Dr. Waite also advised Rollins that same day

that he was denying his grade appeal. Rollins did not appeal his failing grade in

Dental Anesthesia to Dr. Tilashalski (i.e., the last step of the grade appeal process

under the academic guidelines).


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      Under the academic guidelines, a student may contest dismissal from the

dental school by sending a written academic status appeal to the Chair of the

Faculty Council. The Faculty Council must then conduct a hearing following

certain procedures set forth in the guidelines. As required by the guidelines,

Rollins sent a written appeal of his dismissal to Dr. John Ruby, Chair of the

Faculty Council. The council then held a hearing during which Dr. Tilashalski

presented the APC’s reasons for dismissing Rollins and Comparator One and for

requiring Comparator Two to repeat her first year of dental school.

      Several council members contributed to the APC’s list of reasons for

dismissing Rollins during the discussion that followed. Dr. Ruby told the

committee that Rollins and Comparator One, but not Comparator Two, failed an

open-book essay exam in his Cariology class. According to Dr. Louis, even

though he curved the grades in Dental Anesthesia, Rollins “still didn’t meet the

criteria.” In fact, “he wasn’t even on the borderline.” Dr. Louis added that Rollins

acted dishonestly by stating that he requested the paper as remediation. Next, Dr.

Tilashalski reminded the council members that Rollins failed all of the assessments

given in Gross Anatomy and that he only passed the course because of the retest.

Dr. Tilashalski summarized his position by stating that, “[Rollins] failed dental

anesthesia, should have failed gross anatomy, and . . . performed poorly on a

course he already had the previous year.”
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      The Faculty Council also discussed its concerns with Rollins’ academic

integrity. Drs. Waite and Tilashalski contended that another person likely wrote

Rollins’ academic appeal. Dr. Tilashalski also advised the council that he had

analyzed Rollins’ paper for Dr. Louis using plagiarism detection software.

According to Dr. Tilashalski, his analysis indicated that Rollins had copied large

portions of the paper from sources cited in his bibliography.

      Toward the end of their discussion, the council heard individual testimony

from Comparator One, Comparator Two, and Rollins. Further, each individual

called supporting witnesses. After the students presented their cases and were

excused from the meeting, council members expressed their opinions regarding

each student. Ultimately, the Faculty Council voted unanimously by secret ballot

to uphold the APC’s decision to dismiss Rollins and Comparator One but to allow

Comparator Two to repeat her first year of dental school.

                                         II.

      On July 11, 2012, Rollins filed this action against UAB’s Board of Trustees

and Dean Reddy in Alabama’s Jefferson Circuit Court. Rollins’ original

Complaint sought declaratory and injunctive relief allowing him to either repeat his

first year of dental school or remediate Dental Anesthesia and start his second year

of dental school. Rollins also requested damages from the Board of Trustees for

sex-based discrimination in violation of Title IX of the Education Amendments of
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1972, 20 U.S.C. § 1681, et seq. After the defendants removed the case to the

United States District Court for the Northern District of Alabama, Rollins amended

his Complaint to include claims for race-based discrimination in violation of Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.

      Nearly three months after the discovery deadline, Rollins filed a motion

captioned “Plaintiff’s Motion in the Spirit of Rule 56(d)” in which he argued that

the court should compel the defendants to produce all the Dental Anesthesia exams

from the spring of 2012. According to Rollins, Rule 56(d) of the Federal Rules of

Civil Procedure justified a discovery extension where he was unable to “present

facts essential to justify [his] opposition” without the exams. After the parties

moved for summary judgment, Rollins again sought to compel the production of

exams or to reopen discovery for the same reasons set forth in his Rule 56(d)

motion.

      On September 29, 2014, the district court granted the defendants’ motions

for summary judgment, denied Rollins’ Rule 56(d) motion, and denied Rollins’

motion for summary judgment. Rollins challenges the district court’s summary

judgment decision on appeal.

                                         III.

      A district court’s decision on a motion for summary judgment is subject to

de novo review. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
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To obtain summary judgment, a movant must demonstrate that there are no

genuine issues of material fact in dispute and that he or she is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S.

317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). This standard

requires that the reviewing court view all the facts and draw all inferences from the

evidence in a light most favorable to the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L.

Ed. 2d 538 (1986). However, summary judgment is not appropriate where the

movant’s evidence “is merely colorable” or “is not significantly probative.”

Brown v. City of Clewiston, 848 F.2d 1534, 1537 (11th Cir. 1988) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2511, 91

L. Ed. 2d 202 (1986) (emphasis omitted)). Rather, the evidence must be “such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248.

                                         IV.

      Rollins argues that the district court should not have granted summary

judgment in the defendants’ favor regarding his due process claim. In evaluating

this claim, the Court notes that a student dismissed from a public educational

institution for academic reasons is entitled to less process than a student dismissed


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for disciplinary reasons.1 Haberle v. Univ. of Ala., 803 F.2d 1536, 1539 (11th Cir.

1986). In fact, the Constitution does not require schools to hold formal hearings

for academic dismissals. Id; see also Bd. of Curators of Univ. of Mo. v. Horowitz,

435 U.S. 78, 90, 98 S. Ct. 948, 955, 55 L. Ed. 2d 124 (1978). Procedurally,

however, a school is required to engage in a “careful and deliberate” decision-

making process. Haberle, 803 F.2d at 1539 (quoting Horowitz, 435 U.S. at 85).

As the Supreme Court explained in Horowitz, 435 U.S. at 91, “[b]y and large,

public education in our Nation is committed to the control of state and local

authorities.” (internal citation and quotation marks omitted) Courts are reticent to

intrude on that historic control. Id.

       For substantive due process claims, courts extend similar deference to a

school’s academic decisions. In Regents of the University of Michigan v. Ewing,

474 U.S. 214, 225, 106 S. Ct. 507, 513, 88 L. Ed. 2d 523 (1985), the Supreme

Court held that a medical student’s substantive due process rights were not violated

where “the faculty’s decision [to dismiss him] was made conscientiously and with


1
        The Supreme Court has not addressed whether students have a constitutionally-protected
liberty or property interest in continued enrollment at public educational institutions. But the
Court presumed the existence of such a right in Board of Curators of the University of Missouri
v. Horowitz, 435 U.S. 78, 84–85, 98 S. Ct. 948, 952, 55 L. Ed. 2d 124 (1978). In Barnes v.
Zaccari, 669 F.3d 1295, 1304–05 (11th Cir. 2012), this Court held that a student at a publicly-
funded college had procedural due process rights based on the board of regents’ policy manual
and the school’s code of conduct. Rollins has not specifically addressed this issue. However,
the appellees have not asserted that Rollins does not possess some due process rights. Like in
Horowitz, this Court will assume such rights exist.
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careful deliberation, based on an evaluation of the entirety of Ewing’s academic

career.”2 It explained that,

       [w]hen 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.

       On appeal, Rollins conflates the substantive and procedural due process

standards. He frequently alleges a “substantial departure from accepted academic

norms,” an element of substantive due process, when discussing arguments he

labeled as procedural issues at the district court level. Nevertheless, application of

either standard – substantive or procedural – leads to the same result. The district

court correctly concluded that summary judgment was appropriate because the

record establishes that UAB officials acted carefully and deliberately in dismissing

Rollins from dental school.

       A.     Dr. Tilashalski’s Representations to the APC and Faculty Council

       Rollins alleges that Dr. Tilashalski made false statements and provided

misinformation to the APC and the Faculty Council and that Dr. Tilashalski’s


2
        Relying on Horowitz, 435 U.S. at 91-92, the Ewing Court also assumed a
constitutionally-protected property right. 474 U.S. at 222-23.

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actions resulted in a violation of his due process rights. Rollins further contends

that the district court acted improperly in overlooking or excusing this conduct.

              1.      Cardiovascular-Renal Grade

       Dr. Tilashalski admits that the June 8, 2012, e-mail he sent to the APC

incorrectly stated that Rollins failed the Cardiovascular-Renal course. However,

the district court observed that the same e-mail contained a spreadsheet with the

correct grade and that the minutes from the APC meeting 3 accurately represented

Rollins’ Cardiovascular-Renal grade. Because “the APC reached a decision based

on the correct information,” the district court concluded that Dr. Tilashalski’s

mistake did not violate Rollins’ due process rights.

       Rollins argues that the district court should have allowed a jury to decide

whether the APC’s receipt of the correct information cured Dr. Tilashalski’s

prejudicial statement. However, he fails to cite any authority for this contention,

and he ignores the actual due process requirements for academic decisions. In both

Horowitz and Ewing, the Supreme Court held that lower courts are required to give

deference to the professional judgment of educators in making academic decisions.

3
        Rollins also takes issue with the district court’s reliance on the minutes from the APC
meeting. In support of his contention that the minutes are “bogus,” Rollins states that they are
actually notes taken by Dr. Tilashalski that the APC never approved. He concludes that the notes
might contain inaccuracies because of their source. There is no evidence, however, that the
minutes contain inaccuracies. The district court did not err by relying on a document, the
contents of which are not genuinely disputed.

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Rollins does not dispute that the members of the APC received the correct

information before they voted to dismiss him from the dental school. The district

court rightly presumed that academic professionals are capable of disregarding

preliminary misinformation and then making a careful and deliberate decision

based on correct information. Further, the record does not contain any proof that

any APC members voted to dismiss Rollins because they believed he failed

Cardiovascular-Renal.

             2.     Gross Anatomy Grade

      Rollins also asserts that Dr. Tilashalski misrepresented to the APC and the

Faculty Council that he failed Gross Anatomy. He contends that he did not fail the

course because he passed the comprehensive retest. However, Rollins does not

dispute that he failed every other assessment in Gross Anatomy or that his final

grade before the retest was fifty-three percent. Nor does Rollins dispute that the

syllabus provides that, “[s]tudents who earn a grade of 60-69 in the course will be

allowed to take a competency exam.” But, according to Rollins, this portion of the

syllabus does not expressly bar students who earn under a sixty percent grade from

taking the retest. Thus, he claims that the district court erred in finding that the




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syllabus only allowed students with a course average of sixty to sixty-nine percent

to retest.4

       Rollins’ strained reading of the syllabus does not create a genuine dispute of

material fact. The district court reasonably attributed meaning to the sixty to sixty-

nine percent passage in the Gross Anatomy syllabus. If any student who received

less than a sixty percent was eligible to retest, the sentence would be entirely

superfluous. Further, the record plainly shows that Dr. Tilashalski forwarded Dr.

Zehren’s e-mail regarding the 2009 precedent to the APC as soon as he received it.

The district court found that Dr. Zehren’s e-mail was also printed and provided to

the Faculty Council.

       Rollins counters that the transcript does not indicate that the issue was

discussed at the Faculty Council meeting. Nevertheless, the record establishes that

the Faculty Council members were aware of the precedent.

       Notwithstanding the precedent, Dr. Tilashalski believed that Rollins should

not have received a passing grade in a foundational science class when his course

average was a fifty-three percent. Neither the academic guidelines nor the due

process requirements prohibited Dr. Tilashalski, a professional educator, from

4
         Because Dr. Zehren allowed students who fell below the sixty percent cut-off to take the
retest in 2009, Rollins alternatively argues that he was entitled to take the retest. Further, he
claims his due process rights were violated when Dr. Tilashalski failed to orally inform the
Faculty Council about the 2009 precedent.

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sharing his opinion with other educators who possessed the same objective

information. While the Faculty Council and the APC possessed all the information

Rollins claims was necessary and were free to make their own determinations, both

determined that Rollins’ academic performance merited dismissal.

              3.      Failing Grades in Dental Anesthesia

       Rollins asserts that Dr. Tilashalski also misinformed the Faculty Council that

he received the only failing grade in the spring Dental Anesthesia course. Even

assuming that such a mistake would affect Rollins’ due process rights, the record

does not support this argument.

       Comparator Two received the second lowest grade in Dental Anesthesia.

However, she still received a score of 69.83 percent. Because Dr. Louis rounded

any grade between 69.1 and seventy percent to a C-grade, Comparator Two

finished the class with a C. In the district court, Rollins argued that there are six

different figures, ranging from 67.24 to sixty-eight, that purport to reflect his final

grade in Dental Anesthesia. But as the district court observed, Rollins fell below a

score of 69.1 percent, and, therefore, he failed the class regardless of which figure

the Court uses. Thus, Dr. Tilashalski accurately informed the Faculty Council that

Rollins was the only student to fail Dental Anesthesia.5


5
       Rollins also challenges Dr. Tilashalski’s statements to the APC and Faculty Council that
he could not remember the last time someone failed Dental Anesthesia. Rollins asserts that
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       B.      Remediation

       Next, Rollins maintains that the dental school violated his due process rights

by denying his request to remediate his failing grade in Dental Anesthesia. Rollins

disagrees with the district court’s conclusion that the APC and the Associate Dean

determine whether a student may remediate a class. Regardless of the academic

guidelines’ actual language, Rollins argues that, in practice, individual course

instructors decide who may remediate a course. For support, he relies on the

deposition testimony of Dr. Paul Eleazar, who stated that he would occasionally

allow remediation without the APC’s approval. Rollins cites to Dr. Louis’ e-mail

denying his grade appeal and request for remediation. Yet, Rollins fails to explain

how any of these arguments advance his due process theory. Regardless of

whether the APC, the Associate Dean, or Dr. Louis was responsible for the

remediation decision, there is no dispute that each would have denied Rollins the

opportunity to remediate.6




numerous people failed the class. However, Dr. Tilashalski’s statements regarding his memory
of events are not refuted by the record.
6
        Dr. Louis’ e-mail to Rollins is not inconsistent with his earlier stance on remediation that
the district court discussed in its opinion. Dr. Louis told Rollins prior to the June 30th e-mail
that Rollins would need approval from the APC for remediation. Dr. Louis’ refusal to grant
Rollins’ request for remediation did not undermine his position that remediation was in the
APC’s discretion.

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      Rollins also contends that the APC did not recommend remediation because

no one presented that option to the committee. The academic guidelines state in

the first paragraph that, “the APC will make recommendations to the Associate

Dean regarding promotion, probationary status, repetition, remediation, and

dismissal.” Dr. Tilashalski observed that, “all three options were available[:]

remediation, repetition, or dismissal.” However, the guidelines do not require the

Associate Dean or any member of the APC to offer remediation as an option at a

committee meeting before voting on a student’s academic status. Again, all of the

APC members had the information Rollins insists was necessary. Yet, after

discussion of his academic performance, they deliberately decided to dismiss him.

This option was specifically permitted by the guidelines.

      Over a ten-year period, Rollins identified fifty dental school students who

received a failing grade but were permitted to remediate. Based on this

information, Rollins argues that the School of Dentistry’s decision to deny him

remediation was a “substantial departure from accepted academic norms.” The

district court rejected this argument because Rollins did not prove that he was

similarly-situated to any of those fifty students.

      The federal district court for the Southern District of Alabama considered a

similar issue in Watson v. University of South Alabama College of Medicine, 463


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F. Supp. 720 (S.D. Ala. 1979). In deciding whether a student’s dismissal from

medical school violated his substantive due process rights, the court held that,

      [w]hile the evidence reflects that different students were treated
      differently and accorded individual treatment, this is to be expected by
      a committee considering the entire academic record of many different
      students. This Court would only be persuaded by the plaintiff’s
      arguments on this point where there was evidence that a student with
      an academic record and an individual history very similar to the
      plaintiff’s was afforded substantially different treatment from that
      received by the plaintiff.

Id. at 727. Here, the district court specifically considered whether those students

who also failed Dental Anesthesia in past semesters were similarly-situated to

Rollins. The court held that they were not, because all but one of them had

finished their first year of dental school when they took the course. Therefore,

unlike Rollins, they had already proven that they possessed the aptitude to succeed

in dental school. The only other student who failed first-year Dental Anesthesia

withdrew from the program, eliminating the remediation issue altogether.

      In Ewing, 474 U.S. at 219, the Supreme Court similarly concluded that the

appellee was not entitled to retake a medical board exam even though he was the

only student who, having failed the test, was not permitted to retake it. The Court

observed that the school’s decision was sufficiently careful and deliberate,

notwithstanding proof that certain students were allowed to retake the exam as



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many as three or four times. 7 Id. at 219, 227. Here, Rollins did not present a

single comparator with a sufficiently similar academic record who was also denied

remediation. Accordingly, he is not entitled to relief based on his remediation

argument.

       C.      The Faculty Council’s Discussion of Rollins’ Potential Ethics
               Violations

       Rollins also challenges the Faculty Council’s discussion of his research

paper and academic status appeal. He argues that the council should have referred

its plagiarism concerns to the school’s ethics council. Rollins relies on the

testimony of Dr. Ruby in support of this assertion.

       Dr. Ruby agreed in his deposition testimony that the ethics council is the

appropriate forum for plagiarism allegations. However, Dr. Ruby also indicated

that Rollins’ research paper was unique in that it was unsolicited. Neither the

Faculty Council nor Dr. Louis asked Rollins to submit the paper. Instead, he chose


7
        During oral argument, the plaintiff cited to Maitland v. Wayne State University Medical
School, 257 N.W.2d 195 (Mich. Ct. App. 1977), as a favorable case with similar facts. In
Maitland, the Michigan appellate court upheld the trial court’s decision to reinstate a student
dismissed from medical school for failing an exam. Notably, Maitland was decided before the
Supreme Court’s decisions in Ewing and Horowitz. Further, Maitland is factually distinct from
this case. The Maitland Court found it significant that several students who scored lower than
the plaintiff on the same test were allowed to retake the exam. Id. at 200. Rollins, on the other
hand, has not produced evidence that any student scored lower than him in Gross Anatomy or
Dental Anesthesia. Additionally, he has not identified any evidence that any student who was
similarly-situated received different treatment.

                                                20
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to write the paper and submit it to the council. Nothing in the academic guidelines

prohibits the Faculty Council from considering the actual source of material

voluntarily submitted by a student for its review. And contrary to Rollins’

assertions, the guidelines also do not forbid the council from reviewing materials

that the APC did not consider. As the district court properly observed, the

guidelines merely indicate that, “at a minimum,” the council should review the

same materials that the APC reviewed.

      Rollins further contends that the district court drew “impermissible

inference[s]” when it refused “to question Tilashalski’s and Waite’s professional

evaluation” of his academic status appeal and research paper. However, a district

court does not err as Rollins suggests by deferring to the professional judgment of

education officials. In fact, the Supreme Court has directed courts to do just that

when reviewing such matters. See Ewing, 474 U.S. at 225. In part, this is because,

“[c]ourts are particularly ill-equipped to evaluate academic performance.”

Horowitz, 435 U.S. at 92. On the other hand, Drs. Tilashalski and Waite, as

experienced educators, were fully capable of determining whether the materials

submitted by Rollins were authentic. Rollins’ due process rights were not violated

when these educators voiced their opinions at a meeting of other professional

educators who were capable of reaching their own independent conclusions.


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      During the council’s meeting, Dr. Tilashalski also suggested to others that,

“maybe we should say we told him [to write the paper] and fail him on the

remediation.” According to Rollins, this comment demonstrates bias and bad faith.

But, contrary to this argument, the evidence supports the district court’s conclusion

that: (i) the Faculty Council rejected Dr. Tilashalski’s suggestion, (ii) Dr.

Tilashalski did not have a vote on the council, and (iii) Dr. Waite’s opinion gave

the council an independent basis to assess Rollins’ research paper.

      Rollins counters that the district court’s conclusions amount to an improper

credibility determination. He further asserts that Dr. Tilashalski was “like a DA

running the grand jury.” However, Rollins’ argument undervalues the judgment of

professional educators who had access to the same information as Dr. Tilashalski.

After Dr. Tilashalski’s presentation, he left the meeting, and the council held its

own independent discussion. The council then voted to affirm the APC’s dismissal

of Rollins, rather than implement Dr. Tilashalski’s proposal.

      D.     Consideration of Pre-Dental School Grades

      Rollins claims that the Faculty Council improperly considered his pre-dental

school grades in dismissing him from the dental school. The district court rejected

this argument because the guidelines require the council to review the APC’s

decision which necessitates a review of the materials considered by the APC.


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Thus, the council was obligated to consider Rollins’ pre-dental school grades

because the APC considered them.

      On appeal, Rollins argues that the district court’s holding “misses the point.”

He contends that the council “substantially depart[ed] from accepted norms” when

it failed to consider the pre-dental school grades of Comparators One and Two.

But Rollins offers no proof that Comparators One and Two were similarly-situated

in terms of their pre-dental school grades. The record does not contain any

evidence that, like Rollins, Comparator One or Two failed similar classes prior to

their arrival at dental school. In short, Rollins has not pointed to evidence in the

record that the pre-dental school grades of either comparator merited consideration

by the APC or Faculty Council.

      E.     Dr. Louis’ Grading

      Rollins also accuses Dr. Louis of lying to the Faculty Council about curving

Dental Anesthesia grades. However, Dr. Louis confirmed during his deposition

that he rounds scores as low as 69.1 percent to C-grades. The fact that Comparator

Two passed Dr. Louis’ class with an average score of 69.83 supports the

conclusion that Dr. Louis applied his rounding policy to grades for the spring of

2012. However, Dr. Louis did not scale the grades in 2012. And because he did

scale the grades in 2011, Rollins claims that the different treatment qualifies as “a

substantial departure from accepted norms.”
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       Dr. Louis’ deposition testimony demonstrates that he treated the 2011 and

2012 grades differently because the two classes were not similarly-situated. Dr.

Louis explained that, in 2011, few students attained A-grades. But, after

performing a psychometric analysis, he determined that the exam was difficult for

the class as a whole. As a result, Dr. Louis decided to scale the grades. In 2012,

Dental Anesthesia students performed much better than students enrolled in the

class in 2011. Accordingly, he determined that “additional scaling was not

warranted.” In other words, Dr. Louis did not scale the 2012 grades because

Rollins was an outlier. Instead, he reasonably treated the 2012 class (where only

one student failed) differently from the 2011 class (where multiple students

failed).8

       Rollins contends that Dr. Louis also lied to the Faculty Council when he

stated that Rollins’ final grade in Dental Anesthesia included a ten percent credit

for clinical injections. Rollins claims that the injections accounted for only five

percent of his grade. If the credit had been ten percent as Dr. Louis stated, Rollins

claims that he “would have likely passed DA if his exams were graded properly.”

As discussed in more detail below, Rollins has not identified any evidence that he

8
       Rollins also references Dr. Louis’ decision to curve the grades in his 2013 Dental
Anesthesia class. However, Dr. Louis made his presentation to the Faculty Council in 2012.
The decision that Dr. Louis made a year later is not relevant to a discussion of the “accepted
academic norms” at UAB in 2012.

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was entitled to higher scores on either the mid-term or the final exam in Dental

Anesthesia. Moreover, Rollins’ speculation about his Dental Anesthesia grade was

insufficient to withstand summary judgment. 9 See Josendis v. Wall to Wall

Residence Repairs, Inc., 662 F.3d 1292, 1318 (11th Cir. 2011) (“At the summary

judgment stage, such ‘evidence’ consisting of one speculative inference heaped

upon another, was entirely insufficient.”).

       F.     Dr. Louis’ Failure to Attend the APC Meeting

       Continuing with his criticism of Dr. Louis, Rollins argues that Dr. Louis’

failure to attend the APC meeting or send a representative or letter constitutes a

substantial departure from the norm. But yet again, Rollins fails to identify any

evidence in the record to support this argument. Under Ewing, the departure from

accepted academic norms must be so substantial that it “demonstrate[s] that the

person or committee responsible did not actually exercise professional judgment.”

474 U.S. at 225. Rollins does not dispute the district court’s conclusion that Dr.

Louis was not required to attend the APC’s meeting. Further, Dr. Louis was not a


9
        Rollins further argues that Dr. Louis significantly departed from academic norms by
refusing him access to the exams that he took in Dental Anesthesia. He asserts that other
professors allow students to review their exams after the professor has graded them. This issue
is moot now that Rollins has received copies of his Dental Anesthesia mid-term and final.
Additionally, the Constitution does not require that educational institutions give students due
process for every single decision made by an educator. The fact that Dr. Louis had a different
policy than other professors does not entitle Rollins to the relief sought.

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member of the APC, and there is no proof that his absence affected the committee

members’ ability to exercise their professional judgment.

       G.      Grade Appeal and Grading Inconsistencies

       Likewise, Rollins does not contest the district court’s conclusion that he

failed to complete the third and final step of his grade appeal – an appeal to

Associate Dean Tilashalski.10 Rather, he claims that further pursuit of this appeal

was futile. Rollins appears to offer this information more as an explanation than an

argument. However, the fact that he abandoned pursuit of his due process rights

does not justify a due process claim against the Board of Trustees or Dean Reddy.

       Even though Rollins abandoned his grade appeal, he now seeks to challenge

his Dental Anesthesia grade in this Court by comparing his exams with the exams

of other students. Rollins claims that the only credible explanation for

discrepancies is grade manipulation. Notwithstanding this argument, Rollins does

not point to any proof in the record that intentional grade manipulation occurred.

Instead, he contends that, based on Dr. Ramp’s testimony, a course master could

manipulate grades. At the summary judgment stage, such speculation cannot

salvage Rollins’ claims. See Josendis, 662 F.3d at 1318.

10
        Rollins does claim that he actually initiated his grade appeal on June 4, 2012, and that Dr.
Louis drafted a denial e-mail on June 11, 2012, but never sent it. Regardless, Dr. Louis sent
Rollins an e-mail denying his grade appeal on June 30, 2012. Rollins admitted during the
injunction hearing that he received that e-mail.

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       As for the three alleged discrepancies in the exam grading, two are from the

Dental Anesthesia mid-term given during the spring of 2012. However, because

Rollins answered both of the disputed questions incorrectly, he was not entitled to

receive credit for either question. 11 The fact that Comparator Two received credit

for similar incorrect answers does not constitute a due process violation.

       Rollins has only identified one grading inconsistency on the final exam. But

that discrepancy is based on a comparison of his 2012 exam with another student’s

2011 exam. Even though the disputed question is the same, Dr. Louis might have

given credit for a wrong answer in 2011 if the entire class performed poorly on that

question. As with the mid-term exam, Rollins was not entitled to credit for an

incorrect answer. In short, the minor grading discrepancies Rollins identifies do

not amount to “substantial departures from accepted academic norms.” Instead,

Rollins’ exams only underscore the fact that he did not adequately grasp Dental

Anesthesia, an obviously important subject for any potential dentist.12


11
        Comparator Two received 1.45 points when she answered “buccal” on one question, but
Rollins received no points for the same answer. Dr. Louis stated that both Comparator Two and
Rollins answered the question incorrectly and attributed the discrepancy to a “computer glitch.”
On a different mid-term question, Rollins answered “6-7.” Comparator Two answered “8-9.”
The correct answer was “10-11.” Comparator Two received credit for the answer, but Rollins
did not.
12
       The only issue that Rollins raises in his appellate brief is the district court’s summary
judgment decision. However, Rollins also questions the district court’s denial of his motion to
compel the production of all of the Dental Anesthesia exams from the spring of 2012. This
Court reviews a district court’s decisions regarding discovery motions, including the denial of a
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       H.      Waived Procedural Challenges

       Finally, Rollins alleges the following procedural deficiencies: (i) Dr. Louis

failed to prepare a Deficient Grade Report Form; (ii) the Faculty Council did not

cast the same number of votes for each first-year student it reviewed; (iii) the

council’s discussion prior to voting defeated the purpose of a secret ballot; (iv) the

motion to dismiss Rollins was not seconded before the council voted; and (v) the

council voted to affirm the APC’s recommendations when the guidelines require

them to vote for or against the Associate Dean’s decision. Notably, Rollins did not

make these arguments in his motion for summary judgment, nor were they

discussed in the district court’s resulting opinion. In this regard, we note that, “an

issue not raised in the district court and raised for the first time in an appeal will

not be considered by this Court,” especially where the issue involves a factual




motion to reopen discovery, for an abuse of discretion. Artistic Entm’t, Inc. v. City of Warner
Robins, 331 F.3d 1196, 1202 (11th Cir. 2003).
        In his “Motion in the Spirit of Rule 56(d),” Rollins admits that before the close of
discovery, he received some of the Dental Anesthesia exams, including his mid-term and final
exam, the exams of Comparators One and Two, and one student’s exams from 2011. However,
Rollins waited until after the discovery deadline to move the Court to compel all of the exams.
        The record of this matter clearly demonstrates that the parties were given sufficient time
to complete discovery. It contains thousands of pages of data, correspondence, and testimony.
Further, the district court granted several discovery extensions and ultimately extended the
discovery period for more than eight months. And, as discussed above, Rollins has not proven
that other Dental Anesthesia exams would likely have aided his case. With the four exams in his
possession, Rollins has not discovered any instance where he answered a question correctly but
was not given full credit. Accordingly, the district court did not abuse its discretion when it
denied Rollins’ request to further extend the time for discovery.
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question. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004) (quoting Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (internal

quotation marks omitted)). Even if these arguments were properly before this

Court, the academic guidelines do not require any of the procedure that Rollins

claims he was denied. 13 And even if the guidelines did contain such procedural

requirements, Rollins’ due process claims still fail.

       To avoid summary judgment on these issues, Rollins needed to offer some

proof that the decision to dismiss him was not “careful and deliberate.” See

Horowitz, 435 U.S. at 85–87. Proof that the university committed trivial violations

of its internal policies is insufficient to meet that standard. Rollins not only

received due process from the university, but he also received significantly more

process than the Constitution requires. Even though the Supreme Court has held

that a formal hearing is not necessary for academic decisions, the university held a

formal hearing during which Rollins testified on his own behalf, called witnesses,



13
        (i) The guidelines merely state, that when remediation is offered, the course director
“can” use the Deficient Grade Report Form. Rollins was not offered remediation, so there was
no reason to fill out the corresponding form. (ii) The council’s votes on Comparator Two and
Rollins were unanimous. Rollins does not explain how one less vote in his favor or one more
vote for Comparator Two would have made a difference. (iii) The guidelines specifically
require the council to hold a closed discussion after hearing testimony. (iv) The guidelines only
require a “motion for or against the Associate Dean’s decision.” They do not require a second.
(v) The fact that the council moved to uphold the APC’s decision rather than the Associate
Dean’s decision is inconsequential since the Associate Dean, Dr. Tilashalski, openly agreed with
the APC’s decision regarding Rollins.
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and was allowed to have an adviser present. In fact, Rollins received more process

than the students in Horowitz, Haberle, or Ewing.

                                         V.

      Rollins claims that the Board of Trustees violated his equal protection rights

under Title IX of the Education Amendments Act of 1972 and Title VI of the Civil

Rights Act of 1964. Title IX prohibits discrimination on the basis of sex, while

Title VI prohibits discrimination on the basis of race. 20 U.S.C. § 1681; 42 U.S.C.

§ 2000d. To maintain an equal protection claim, a plaintiff must allege that,

“through state action, similarly situated persons have been treated disparately.”

Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004) (internal citation

and quotation marks omitted). Further, the plaintiff must present evidence that the

state actor’s conduct was motivated by the plaintiff’s race or sex. See id. See also

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66, 97 S.

Ct. 555, 563, 50 L. Ed. 2d 450 (1977). In other words, the plaintiff must

demonstrate discriminatory intent. Vill. of Arlington Heights, 429 U.S. at 265–66.

      A.     Alleged Sex-based Discrimination under Title IX

      Rollins acknowledges that he ranked third to last in his class.

Notwithstanding his academic standing and performance, he asserts that UAB

denied him equal protection when it dismissed him instead of Comparator Two, a

white female who ranked second to last in the class. To succeed on an equal
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protection claim based on circumstantial evidence, a plaintiff must prove that a

“nearly identical” comparator received different treatment. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). And Rollins’ Title IX

argument is entirely circumstantial.

      The district court properly refused to second-guess UAB’s reasonable

decision because Rollins did not show that Comparator Two was “nearly identical”

to him. According to the district court, the students were not “nearly identical”

because Comparator Two “had a better overall record.” The district court reasoned

that Comparator Two only needed remediation in one class, whereas Rollins failed

Dental Anesthesia and would have failed Gross Anatomy but for the retest.

Further, Rollins failed the first two exams in Fundamentals I, a course he had taken

in graduate school.

      Rollins insists on appeal that his academic record was better than

Comparator Two’s record. He relies on his higher GPA, slightly higher class rank,

and lower number of C-grades (three versus five) to support this argument.

Nevertheless, these statistics do not refute the district court’s proper conclusion

that Comparator Two and Rollins were not “nearly identical.” Significant

distinctions still exist between the academic records of Comparator Two and

Rollins.


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      Courts have found that comparators are not similarly-situated based on even

fewer distinctions. In Watson, 463 F. Supp. at 722, an African-American student

was dismissed from medical school for poor academic performance. The student

demonstrated that a white student with lower grades was granted a leave of

absence in lieu of dismissal. Id. at 727 n.3. Nevertheless, the court held that the

students were not similarly-situated because the comparator had undergone therapy

for a psychological condition during his first year of medical school. Id.

      In the present case, Comparator Two asserted that her grades were impacted

because her mother suffered a heart attack during the school year, requiring the

student to return home for a few days and miss classes. Comparator Two also

testified to a health condition that affected her academic performance during both

semesters. The only personal issue Rollins raised during his testimony was his

engagement to be married. These differences adequately demonstrated that Rollins

and Comparator Two were not similarly-situated.

      Likewise, Rollins did not present any direct evidence of discriminatory

intent. According to Rollins, the fact that UAB allowed two female students

(Comparators One and Two) to remediate while it denied him the same

opportunity is sufficient proof of discriminatory intent. Again, however, the

district court properly disagreed. Just as Comparators One and Two were allowed

to take a retest when they failed Cardiovascular-Renal, Rollins was also allowed to
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take a retest in Gross Anatomy. In other words, he received the same opportunity

as his female counterparts. In short, Rollins has offered no direct evidence of

discriminatory intent nor has he proven that he and Comparator Two were

similarly-situated. Therefore, the district court did not err by granting summary

judgment in the defendants’ favor on Rollins’ sex-based discrimination claim.

      B.     Alleged Race-based Discrimination under Title VI

      Rollins also contends that he was dismissed from the dental school as a

means for the school to “offset” the dismissal of Comparator One, an African-

American female. As proof of discriminatory treatment regarding his Title VI

claim, Rollins first observes that the APC and Faculty Council were informed

about his failure to meet the retest standard in Gross Anatomy, but did not know

about Comparator One’s failure to meet the Cardiovascular-Renal retest standard.

Even assuming that Comparator One was not eligible for the retest as Rollins

asserts, that fact does not help his case. Comparator One failed the retest as well as

the course. And like Rollins, she was also dismissed from the dental school. In

short, Rollins cannot prove disparate treatment by comparing himself to a student

who received the same treatment.

      As direct evidence of discriminatory intent, Rollins offers the affidavits of

Dean Reddy and Dr. Tilashalski, originally filed in Comparator One’s separate

discrimination suit against UAB. In his affidavit, Dean Reddy states that, “[a]t
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approximately the same time as [Comparator One’s] dismissal, the [dental school]

also dismissed a white male student whose academic performance was inadequate,

but better than [Comparator One’s].” Dr. Tilashalski’s affidavit contains a similar

statement. Rollins relies on these affidavits as proof that he was dismissed from

the dental school “based on his race in order to justify or defend . . . the dismissal

of this black female student.” While correctly construing the evidence in a light

most favorable to Rollins, the district court still found that, “the affidavits fail to

establish that the [dental school] dismissed Rollins in anticipation of creating a

defense to a then non-existent lawsuit.” The affidavits only mention Rollins to

rebut Comparator One’s contention that racial animus played a role in her

dismissal.

      In response, Rollins offers nothing but bare assertions, devoid of any factual

support. He contends that, “Tilashalski concluded that Comparator One, the last-

ranked student in the freshman class, had to go.” Rollins then claims that he was

dismissed as a racial offset to avoid a lawsuit. But the record only contains

contrary evidence. When asked during his deposition if he believed that

Comparator One “really needed to go,” Dr. Tilashalski responded, “I certainly

didn’t think she could be successful moving through the curriculum.” Then, the

following exchange ensued:


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      Q. . . . I guess it would be awfully convenient that at the same time
      [Comparator One] was dismissed that Lee Rollins was dismissed,
      wasn’t it?
      A. I don’t find any of this convenient. . . .
      Q. It helps balance off a black female who got dismissed if at the
      same time you got rid of a white male?
      A. That’s certainly not my thought process.
      Q. Was it ever your thought process?
      A. No, sir.

Rollins has offered no direct evidence that contradicts Dr. Tilashalski’s deposition

testimony. Thus, the district court rightly rejected his claim that Dr. Tilashalski

was motivated by racial animus.

      The only other evidence that Rollins offers in support of his discrimination

theory is the testimony of Drs. Ramp and Eleazar. According to Rollins, these

witnesses testified that “race certainly entered into their thought processes at the

APC.” When asked about Comparator One’s dismissal, Dr. Ramp stated during

her deposition that, “I’m sure race went through my head.” However, the district

court concluded that her statement was not sufficient to establish racial animus.

We agree.

      The record does not support Rollins’ contention that Dr. Ramp harbored any

discriminatory intent. In fact, the record reflects that just the opposite was true.

Dr. Ramp ardently opposed Rollins’ dismissal. As the district court observed, Dr.

Ramp testified at the Faculty Council meeting on Rollins’ behalf and chose to

abstain from voting on Rollins at the APC meeting. Dr. Eleazar also admitted
                                          35
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during his deposition that he “weighed the race of [Comparator One] in [his]

deliberation.” He explained that “it would be difficult to dismiss a black female

and promote a white female or white male.” Dr. Eleazar further agreed that

dismissing Rollins, a white male, did balance out the dismissal of Comparator One,

a black female. However, Dr. Eleazar voted at the APC meeting for all three

students to repeat the year. Based on this undisputed evidence, the district court

properly concluded that Dr. Eleazar’s “testimony only supports the reasonable

inference that he wanted to ensure that the APC treated all three students similarly”

because of their similar academic records.

      The district court further concluded that Dr. Eleazar only considered race

because he wanted to make sure that all students were treated similarly, regardless

of their race. Once more, Rollins offers nothing to rebut the district court’s

analysis. Dr. Eleazar can hardly be accused of harboring discriminatory intent

when he voted against Rollins’ dismissal. Moreover, as discussed earlier, Rollins

cannot base an equal protection claim on evidence that he received the same

treatment as a comparator. Both Rollins and Comparator One were dismissed from

the dental school. Tilashalski voted for both of them to be dismissed. Dr. Ramp

advocated for both of them to remain students, and Dr. Eleazar voted for both of

them to repeat the year. Because Rollins did not offer any evidence of disparate


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treatment, the district court did not err by granting summary judgment in favor of

the defendants on Rollins’ equal protection claims.



                                        VI.

      The district court properly concluded that there are no genuine disputes of

material fact. Further, it did not err when it granted summary judgment for the

defendants. Accordingly, the district court’s judgment is AFFIRMED.




                                         37
