                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-3535
                        ___________________________

                                 Padraic A. Power

                       lllllllllllllllllllllPlaintiff - Appellant

                                          v.

  University of North Dakota School of Law; Kathryn R.L. Rand, Dean (Official
   Capacity); Bradley Myers, Associate Dean (Official Capacity); Admissions
   Committee, Undisclosed Members (Official Capacities); North Dakota State
   Board of Higher Education; Kathleen Neset, Chair (Official Capacity); Don
  Morton, Vice Chair (Official Capacity); Kari Reichert, Board Member (Official
 Capacity); Kevin Melicher; Mike Ness, Board Member (Official Capacity); Mike
    Hacker, Board Member (Official Capacity); Greg Stemen, Board Member
(Official Capacity); Nick Evans, Student Board Member (Official Capacity); Andy
 Wakeford, Staff Advisor (Official Capacity); Prof. Ernst Pijning, Faculty Advisor
                                (Official Capacity)

                      lllllllllllllllllllllDefendants - Appellees
                                       ____________

                    Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                   ____________

                          Submitted: December 10, 2019
                             Filed: March 27, 2020
                                 ____________

Before SMITH, Chief Judge, LOKEN and GRASZ, Circuit Judges.
                              ____________
SMITH, Chief Judge.

       Padraic Power sued the University of North Dakota School of Law and various
school officials (collectively, “UND Law”), under Title II of the Americans With
Disabilities Act of 1990 (ADA). He alleged that UND Law discriminated against him
because of his mental illness when it rejected his admission application. The district
court1 granted summary judgment to UND Law on the merits because Power failed
to show that UND Law’s legitimate, nondiscriminatory reason for rejecting his
application was pretext for discrimination. We affirm.

                                    I. Background
       UND Law received 300 applications for the 2015–2016 academic year, offered
204 applicants positions in the incoming class, and matriculated 85 students. UND
Law has an Admissions Committee consisting of Associate Dean Bradley Myers and
Professor Alexandra Sickler. These two faculty members review the application
materials and select persons for admission to UND Law. In deciding, the Admissions
Committee considers an admission index for each applicant based on the applicant’s
LSAT score and undergraduate GPA. It also takes into account other considerations.
These include: previous undergraduate and graduate schools, previous academic
success, any gaps in education, prior law school attempts, fields of study, LSAT
writing samples, and reference letters. Using these, the Admissions Committee takes
a holistic approach in reviewing applications and chooses students with a likelihood
of success at UND Law.

     In July 2015, Power applied to be admitted into the 2015–2016 school year at
UND Law. Power had an LSAT score of 153 and an undergraduate GPA from the
University of Connecticut in 1994 of 2.645. In addition, he had 22 hours of college


      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.

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credit from Capital Community College from 2012–2014 and averaged a 3.90 GPA.
The Admissions Committee set his admission index at 48. This index was average for
the UND Law incoming class; the lowest index admitted was a 25, but the highest
index rejected was a 67.

      Power also submitted two older recommendation letters: (1) a 2008 letter from
his LSAT instructor and (2) a 2009 letter from a former employment supervisor. He
included a short personal statement and mentioned in his application that he had
previously withdrawn from two other law schools—Loyola Law School in fall 2000
and Quinnipiac University School of Law in fall 2002 and spring 2003. In addition,
his work history included 18 different jobs from 2005–2014.

       The Admissions Committee received Power’s application on July 16, 2015, and
noted that Power’s file did not contain the necessary information about his previous
law school enrollments. The next day, Professor Sickler voted to reject Power’s
application. On July 27, Dean Myers received a letter from Power, explaining why
Power had previously withdrawn from the two law schools. He stated: “There’s only
one consistent fact in my withdrawals from law school: my bipolar disorder.”
Appellant’s App. at 49. However, he noted that in the past few years he had
“remained stable, regularly taking medication and routinely getting psychological
help.” Id. Dean Myers forwarded Power’s letter to Professor Sickler, but she did not
change her vote to reject the application. Dean Myers also voted to reject Power’s
application. On July 30, UND Law advised Power that his application had been
rejected.

      On August 7, Power e-mailed Dean Kathryn Rand and alleged that UND Law
had rejected his application because of his bipolar disorder. Dean Rand then
forwarded the e-mail to Dean Myers and Ben Hoffman, the Director of Admissions
and Records, to ask how to respond. Hoffman stated:



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      Typically when I receive emails/calls regarding denials I simply state
      that applicants are evaluated on the sum of all application components
      and that GPA and LSAT are factors but a high LSAT or GPA are not
      guarantees of admission. The complete package is considered and the
      committee makes decision[s] based on all available information. In this
      case I can see how the applicant may think that his disclosure of mental
      illness may be a factor, but the matriculation/withdrawal to 2 previous
      law schools and consistently low undergraduate [GPA] over multiple
      years are most likely important factors.

Id. at. 268. Dean Myers also responded that Hoffman identified the most important
factors and explained that the Admissions Committee also looked at Power’s personal
statement.

       Dean Rand then replied to Power that the Admissions Committee reviewed
each applicant holistically and stated that LSAT and GPA data do not guarantee
admission. Further, she stated that she was “confident that the committee considered
that [Power’s] experience with mental health would enable [him] to be a passionate
and effective advocate for the fair and just treatment of the mentally ill.” Id. at 270.
Power also alleged that Dean Rand yelled at him to go to another law school during
a phone conversation.

       Power again applied to UND Law in February 2016 for the 2016–2017 school
year. He submitted a very similar application but added a longer personal statement.
In the statement, he detailed his law school history and discussed how he suffered
from depression. He stated that he now had a better perspective on depression and
anxiety. UND Law again declined to admit Power.

       Power filed this case, alleging that UND Law discriminated against him on the
basis of his disability. UND Law filed a motion for summary judgment. In its motion,
UND Law argued that Power failed to establish his Title II claim and that UND Law


                                          -4-
was entitled to sovereign immunity. The district court granted summary judgment to
UND Law, concluding that Power failed to provide sufficient evidence to show that
UND Law’s legitimate reasons for rejecting his application were pretextual. In
addition, the district court explained that because Power failed to establish a Title II
claim, it did not need to decide the sovereign immunity issue. Power appeals.

                                      II. Discussion
      We review de novo a district court’s grant of summary judgment. St. Martin v.
City of St. Paul, 680 F.3d 1027, 1032 (8th Cir. 2012). A court should only grant
summary judgment if the moving party shows that there is no genuine dispute of
material fact and that the party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). “Summary judgment is appropriate where one party has failed to present
evidence sufficient to create a jury question as to an essential element of its claim.”
St. Martin, 680 F.3d at 1032.

       Under Title II of the ADA, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. Power alleges that UND Law
violated Title II by rejecting his UND Law application because of his bipolar
disorder. In the absence of direct evidence of discrimination, we analyze Power’s
disability discrimination claim under the McDonnell Douglas burden-shifting
framework. See Mershon v. St. Louis Univ., 442 F.3d 1069, 1074 (8th Cir. 2006)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

       First, Power must establish a prima facie case of discrimination by showing
that “1) he is a person with a disability as defined by statute; 2) he is otherwise
qualified for the benefit in question; and 3) he was excluded from the benefit due to
discrimination based upon disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th
Cir. 1999). Here, “[w]e presume for purposes of analysis that [Power] has satisfied

                                          -5-
this requirement.” Smith v. United Parcel Serv., 829 F.3d 571, 575 (8th Cir. 2016).
Next, the burden shifts to UND Law to articulate a legitimate, nondiscriminatory
reason for rejecting Power’s application. See Torgerson v. City of Rochester, 643 F.3d
1031, 1046 (8th Cir. 2011) (en banc). UND Law has met this burden by consistently
explaining its reasoning for rejecting Power’s application:

      Applications are always reviewed with the same basic question provided
      us under the standards of the ABA. We should only admit students that
      we think have the potential to successfully complete the program of
      legal studies and be admitted to the Bar.

                                   .       .      .

             [I]t would be fair to say that on review of the application we did
      not think [Power was] a good fit to complete our program of the study
      of law.

Appellant’s Add. at 40. Further, UND Law continues to emphasize that the
Admissions Committee “weigh[s] LSAT, GPA, previous courses of study,
recommendation letters, the strength of the personal statement, and more beyond
that.” Appellant’s App. at 70.

       “To survive summary judgment, [Power] must now demonstrate that a genuine
issue remains as to whether [UND Law’s] purported legitimate reason for [rejecting
Power’s application] is pretextual.” Smith, 829 F.3d at 575. Explained another way,
Power must show that disability discrimination, and not UND Law’s stated reasons,
motivated the Admissions Committee’s rejection of his application. See id. Power
argues that UND Law’s reasons are pretextual because (1) UND Law’s admissions
process was too subjective and (2) UND Law accepted applicants with lower index
scores than Power’s index score. Both of these arguments fail.




                                         -6-
       First, Power argues that UND Law’s admissions process is so subjective that
it would allow a reasonable factfinder to conclude that a discriminatory reason more
likely motivated UND Law’s decision than the reasons given. We give deference to
academic decisions and “will not invade a university’s province concerning academic
matters in the absence of compelling evidence that the academic policy is a pretext
for disability discrimination.” Falcone v. Univ. of Minn., 388 F.3d 656, 659 (8th Cir.
2004) (cleaned up). For example, we explained in Keefe v. Adams that educators in
graduate school programs should be able to decide whether a student can meet the
demands of a profession and emphasized the “restrained judicial review of the
substance of academic decisions.” 840 F.3d 523, 533 (8th Cir. 2016) (quoting
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)). Therefore, UND Law
should be given some deference in deciding which students will be a good fit for its
law program.

       In addition, “the presence of subjectivity in . . . evaluations is itself not a
grounds for challenging those evaluations as discriminatory.” Wittenburg v. Am. Exp.
Fin. Advisors, Inc., 464 F.3d 831, 839 (8th Cir. 2006) (quoting Hutson v. McDonnell
Douglas Corp., 63 F.3d 771, 780 (8th Cir. 1995)). Even in the employment context,
we have explained that subjective criteria do not give rise to an inference of
discrimination when a decisionmaker also considers objective criteria and other
legitimate educational considerations. Wingate v. Gage Cty. Sch. Dist., No. 34, 528
F.3d 1074, 1080 (8th Cir. 2008).

       For example, in Wingate, the plaintiff challenged the school’s use of subjective
criteria in making its decision to hire someone more qualified than the plaintiff for a
full-time position. Id. at 1079–80. We explained that the school’s subjective
considerations did not create an inference of discrimination because the school also
relied on other objective criteria, such as previous experience and educational
endorsements. Id. at 1080. And, in Torgerson, the fact that a candidate’s interview
score made up 40 percent of the hiring score was not enough to show that the

                                         -7-
employer had a discriminatory intent. 643 F.3d at 1050. Each interview consisted of
the same panel and same questions, and the plaintiff failed to provide evidence that
the subjective portion was discriminatory. Id.

       A focus on an applicant’s disability in the selection process can certainly
generate valid concern about the fairness of the process. For instance, the Sixth
Circuit held that there was a genuine dispute of material fact as to whether a
university’s reasons for not admitting a graduate student were pretext for disability
discrimination, where a majority of the plaintiff’s interview focused on questions
about her disability. Sjostrand v. Ohio State Univ., 750 F.3d 596, 600–02 (6th Cir.
2014). However, unlike the plaintiff in Sjostrand, Power failed to present any
evidence that UND Law focused on or even factored his disability into its decision.
Neither Dean Myers nor Professor Sickler ever discussed Power’s disability. In fact,
Professor Sickler decided to reject Power’s first application before ever learning of
his disability. Because Power failed to provide evidence of discriminatory intent in
the subjective portions of the application process, his case is more similar to
Torgerson.

       Further, like Wingate, UND Law made it clear that it considered a variety of
objective and subjective criteria. In fact, most were objective: GPA, LSAT score,
previous law school experience, previous school experience, and time since
completing an undergraduate degree. Power appears to argue that UND Law should
only have considered the admission index of his GPA and LSAT score. But, given the
deference accorded graduate schools, UND Law’s holistic approach to application
reviews did not discriminate against Power in determining that Power would not be
a good fit for UND Law. Power had dropped out of law school three times, had a very
low undergraduate GPA, and submitted out-of-date recommendation letters. These
factors may have been affected by Power’s disability, but the school’s use of them,
without more, does not show discriminatory intent. Because Power failed to show any



                                        -8-
proof of discriminatory intent in UND Law’s subjective determination of who to
admit into the law school, his first argument fails.

       Second, Power argues that UND Law’s reasons for rejecting his application are
pretextual because UND Law admitted students with lower index scores than Power’s
index score. As Torgerson explained, Power may show that there is pretext by
proving that UND Law accepted less qualified applicants. 643 F.3d at 1049.
However, “[i]f the comparison reveals that the plaintiff was only similarly qualified
or not as qualified as the selected candidate[s], then no inference of discrimination
would arise.” Id. (cleaned up).

       In St. Martin, the plaintiff alleged that his employer discriminated against him
on the basis of his disability when the employer did not promote him. 680 F.3d at
1033–34. As evidence of pretext, he stated that he was more qualified than other
candidates based on his high test scores, experience, and the fact that he was the first
choice for the position previously. Id. at 1034. However, we explained that the
plaintiff’s evidence did not establish pretext because the top candidate had not been
promoted, and lower-ranking candidates better fit the department’s vision. Id.

       Similar to St. Martin, in the present case, Power fails to establish pretext
because, at most, he can show that his index score was within the range of applicants
who were both rejected and accepted. In addition, although Power had an
above-average LSAT score, his GPA was significantly lower than the average GPA.
And, some applicants with higher index scores were also rejected. Even when
considering Power’s index score alone, Power cannot show that he was more
qualified than most of the students who were accepted into UND Law. Therefore, this
argument fails to show UND Law used pretext to deny his application.

      Finally, Power alleges that a phone call between himself and Dean Rand shows
that UND Law discriminated against him because of his bipolar disorder. He alleges

                                          -9-
that Dean Rand yelled at him and told him to go to another law school. But, assuming
as we must that this phone call occurred, Dean Rand’s statement does not “create a
reasonable inference that [Power’s bipolar disorder] was [UND Law’s] determinative
factor in not [admitting Power].” Wingate, 528 F.3d at 1080. There simply is no
evidence of a discriminatory animus against Power based on his disability.

       The district court correctly determined that “[a] generous reading of Power’s
claims does not reveal specific, competent evidence from which a reasonable jury
could conclude UND Law’s proffered legitimate, nondiscriminatory reasons (i.e., lack
of potential to complete the program and pass the bar exam) [are] pretextual.” R. &
R. at 24, Power v. Univ. of N.D. Sch. of Law, No. 3:16-cv-338-DLH (D.N.D. Oct. 3,
2018), ECF No. 73. Power’s Title II disability discrimination claim fails.2

                                III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




      2
        Because Power’s Title II claim fails on the merits, we do not have to address
the sovereign immunity question. See Lors v. Dean, 746 F.3d 857, 864 (8th Cir. 2014)
(explaining that this court does not have to decide the sovereign immunity issue if the
district court correctly determined that a “claim fails on the merits”).

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