
USCA1 Opinion

	




        October 12, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        Nos. 93-2051             93-2234             94-1589                                       J. DOE,                                Plaintiff, Appellant,                                          v.                                 HARVARD UNIVERSITY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            J. Doe on brief pro se.            ______            Eileen M. Hagerty, Kern, Hagerty, Roach  & Carpenter on brief  for            _________________  _________________________________        appellee.              Margaret H.  Marshall and Kathleen  B. Rogers, Office  of General             _____________________     ___________________        Counsel Harvard University, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Appellant J. Doe,  a student suspended from                 __________            the Extension School of  appellee Harvard University, filed a            complaint   in  June   1993  alleging   that  she   had  been            discriminated  against  by  Harvard  because  of  a  learning            disability  from which  she suffers.   Her  complaint alleged            violations of the  Civil Rights  Act, 42 U.S.C.    1983,  the            Individuals with Disabilities Act  [IDEA], 20 U.S.C.    1400-            1485, the Rehabilitation Act, 29 U.S.C.     701-797b, and the            Americans with  Disabilities Act  [ADA], 42 U.S.C.     12101-            12213.   She sought injunctive relief in the form of an order            compelling Harvard  to  reinstate her  as  a student  and  to            refrain from  other alleged acts  of discrimination.   At the            same  time,  Doe  also  filed  a  motion  for  a  preliminary            injunction  seeking  similar  relief.    The  district  court            dismissed the parts of the complaint predicated on  the Civil            Rights  Act  and the  IDEA  and granted  summary  judgment to            Harvard on the remaining counts.  The court also denied Doe's            request  for a  preliminary injunction.   Later  the district            court denied  Doe's motion for reconsideration.   Doe appeals            the  dismissal  of her  case, the  denial  of her  motion for            reconsideration  and   the  denial  of  her   request  for  a            preliminary injunction.  She also appeals the refusal by  the            district  court  judge  to  recuse  himself.    After  having            reviewed  carefully the  record  in this  case, the  parties'            briefs, and appellant's numerous filings, we affirm.                                         -3-                 Doe's  claims  pursuant to  Section  1983  of the  Civil            Rights  Act and those pursuant to the IDEA were both properly            dismissed.  This  court has previously held  that Harvard "is            not a public institution, and is not sufficiently intertwined            with the Commonwealth of Massachusetts  as to meet the 'state            action' requirement for a    1983 cause of action."   Rice v.                                                                  ____            President  and Fellows of Harvard  College, 663 F.2d 336, 337            __________________________________________            (1st Cir. 1981), cert. denied, 456 U.S. 928 (1982).  The IDEA                             ____  ______            "provides federal money to assist state and local agencies in                                              ________________________            educating handicapped children,  and conditions such  funding                                  ________            upon  a   State's  compliance   with   extensive  goals   and                      _______            procedures." Board of Education v.  Rowley, 458 U.S. 176, 179                         __________________     ______            (1982) (emphasis added).   The IDEA does not apply  to adults            like  Doe, see  20 U.S.C.    1412(2)(B)  (children are  those                       ___            between three and twenty-one years old), nor does it apply to            private  institutions like  Harvard, see.  e.g., 20  U.S.C.                                                   ___   ___            1415(a)  (IDEA seeks  to  guarantee "free  appropriate public            education").                   To prevail  on a  claim under either  the Rehabilitation            Act or the ADA Doe  must show, inter alia, that she  has been                                           _____ ____            discriminated  against because  of  her disability.   See  29                                                                  ___            U.S.C.    704(a)  ("no otherwise qualified  individual .  . .            shall, solely  by reason of her  or his disability, .  . . be            subjected to discrimination") (Rehabilitation Act); 42 U.S.C.              12112(a) ("[n]o covered entity shall discriminate against a                                         -4-            qualified  individual  with  a  disability   because  of  the            disability of  such individual")  (ADA).  In  its motion  for            summary  judgment Harvard  presented  sworn affidavits,  with            documentary support, which indicated that it had accommodated            Doe's disability to  the full extent recommended  by the only            psychologist  Doe consulted  on  this matter.   Harvard  also            presented   evidence  that   the   other   acts  of   alleged            discrimination were taken for  legitimate, non-discriminatory            reasons.                   In opposition  to the  motion for summary  judgment, Doe            set forth  no specific facts as  required by Fed. R.  Civ. P.            56(e),   but   only   "'conclusory  allegations,   improbable            inferences, and  unsupported speculation'" that she  had been            the victim of discrimination.  Pagano v. Frank, 983 F.2d 343,                                           ______    _____            347 (1st Cir. 1993) (quoting Medina-Munoz v. Reynolds Tobacco                                         ____________    ________________            Co., 896 F.2d 5, 8 (1st Cir. 1990)).  This  is not sufficient            __            to  withstand   a  properly  supported   motion  for  summary            judgment.       See also  Wynne  v.  Tufts  Univ.  School  of                            ___ ____  _____      ________________________            Medicine, 976 F.2d 791,  794 (1st Cir. 1992)  ("evidence that            ________            'is  merely  colorable  or is  not  significantly  probative'            cannot deter summary judgment")  (quoting Anderson v. Liberty                                                      ________    _______            Lobby, Inc.,  477 U.S. 242, 249-50 (1986),  cert. denied, 113            __________                                  ____  ______            S.Ct. 1845 (1993).                  On appeal, Doe has also raised several other claims.  We            need  not  address  some  of  these  because  they  were  not                                         -5-            presented  first to the district  court.  See,  e.g., Kale v.                                                      ___   ___   ____            Combined Ins. Co., 861 F.2d 746, 755 (1st Cir. 1988).  In any            _________________            event, none appears to have any merit.                   The   judgment  of   the   district   court   dismissing            appellant's  action is  affirmed.   The  order  of the  court                                    ________            denying appellant's  request for a preliminary  injunction is            affirmed.      The   denial   of   appellant's   motion   for            ________            reconsideration  is affirmed.   The  refusal by  the district                                ________            court  judge  to recuse  himself  is  affirmed.   Appellant's                                                  ________            request  for oral  argument is  denied.   Appellant's request                                            ______            that  this court  reconsider its  denial  of her  request for            district court transcripts at court cost is denied.                                                        ______                                         -6-
