Sung Park v. Indiana University School of Dentistry

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-1933 & 11-2109
SUNG PARK,
Plaintiff-Appellant,
v.
INDIANA UNIVERSITY SCHOOL OF DENTISTRY, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-01408-WTL-WGH—William T. Lawrence, Judge.
ARGUED MARCH 26, 2012—DECIDED AUGUST 30, 2012
Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. Sung Yeun Park had hoped to
become a dental surgeon when she enrolled at the
Indiana University School of Dentistry (IUSD) in 2006.
After one year at the school, however, Park began to
experience a series of serious setbacks, including several
failing grades and allegations of professional misconduct.

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Eventually, the school concluded that she had to be
dismissed from its program. Park appealed without
success to various school committees and administrators
to overturn this decision. This suit, alleging Equal Pro-
tection and Due Process violations, as well as claims
for state law breach of contract, represents her latest
effort to win re-admittance. The district court dismissed
all of Park’s claims for failure to state a claim, and
we affirm.
I
Park enrolled in IUSD’s doctoral dental surgery
program in 2006 and completed her first year of dental
school without incident, but on the margin. At that
point, her class rank was 95th out of 103. In her second
year, she encountered even more severe academic set-
backs. In one instance, because of her weak performance
in a class, Park was required to take a remediation
exam. She contacted the professor for that class
(Dr. Haug) a few days before the deadline for completing
the re-take, but she was unable to complete the exam
in time, and so she received a failing grade. She also
was charged with acting unprofessionally by failing to
schedule the exam in a timely manner. In another class,
Park allegedly “arriv[ed] late for and subsequently le[ft]
early [from] . . . a remediation examination (without
permission from the faculty).” Over the course of this
year, Park was placed on academic probation twice; she
eventually was required to repeat her entire second year
of classes after spending one year away from the school.

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Nos. 11-1933 & 11-2109 3
As directed, Park recommenced her course of study in
2009. Although Park’s academic performance im-
proved somewhat, IUSD still was not satisfied with
Park’s professional development. She was reprimanded
for breaching confidentiality rules, a violation of the
IUSD Code of Conduct. Other charges, such as her
failure to report a class absence, were determined not
to be violations of IUSD’s policies. Nevertheless, Park
eventually was brought before IUSD’s Faculty Profes-
sional Conduct Committee, which recommended dis-
missing Park for her “admitted inability to prioritize
and accomplish competing tasks” and her “noncom-
pliance [with] professional responsibilities.” She ap-
pealed this decision to the Faculty Council Appeals
Committee and to the university-wide Graduate Office,
but neither appeal was successful.
Unable to procure relief from the university, Park
turned to the federal courts. She filed a complaint in the
U.S. District Court for the Southern District of Indiana
in November 2010, alleging a variety of federal and state
law claims. The district court dismissed Park’s com-
plaint, and she now appeals.
II
Before examining the merits of Park’s lawsuit, we take
a moment to address a jurisdictional question that arose
during oral argument. Park’s lawsuit seeks damages
from the Indiana University School of Dentistry, which
is an arm of the State of Indiana. Thus, one might
wonder why Indiana’s sovereign immunity does not

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4 Nos. 11-1933 & 11-2109
bar this suit. The answer is simple: sovereign immunity
is a waivable affirmative defense, Board of Regents of Univ.
of Wis. Sys. v. Phoenix Int’l Software, Inc., 653 F.3d 448,
463 (7th Cir. 2011), and in this case, Indiana has waived
it. It never once raised the issue of immunity before
the district court, and even when prompted by this court
at argument, counsel for IUSD declined to argue that
sovereign immunity defeats Park’s case. IUSD has thus
waived its sovereign immunity defense, and so we
do not explore that question any further. See Wood v.
Milyard, 132 S. Ct. 1826, 1835 (2012).
We review the district court’s order granting IUSD’s
motion to dismiss de novo, “constru[ing] the complaint
in the light most favorable to the plaintiff” and
drawing all possible inferences in Park’s favor. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). In any
event, aside from several supplemental affidavits pre-
sented by the defendants that go beyond the scope of
our review at this stage of the litigation, the facts are
not seriously contested by the parties. Rather, the main
issue presented in this appeal is whether any legal con-
sequences flow from the facts that Park has alleged.
A
Because Park’s claim under Indiana contract law is
closely connected to her federal due process claims, we
begin with the contract theory. Park alleges that IUSD
breached its contract with her by failing to follow the
disciplinary procedures set out in IUSD’s Student Hand-
book and Codes of Conduct. For the purposes of this

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Nos. 11-1933 & 11-2109 5
appeal, we assume that Park has pleaded the existence
of an implied contract arising out of these documents
between herself and IUSD. Bissessur v. Indiana Univ. Bd. of
Trustees, 581 F.3d 599, 601 (7th Cir. 2009) (“[A] student
may establish that an implied contract existed be-
tween h[er]self and the university that entitled the
student to a specific right . . . .”); Gordon v. Purdue
Univ., 862 N.E.2d 1244, 1251 (Ind. Ct. App. 2007) (“ ‘[T]he
relationship between a student and an educational in-
stitution is contractual in nature . . . .’ ” (quoting Neel v.
Indiana Univ. Bd. of Trustees, 435 N.E.2d 607, 610-11 (Ind.
Ct. App. 1982))); Ross v. Creighton Univ., 957 F.2d 410, 416
(7th Cir. 1992) (“The catalogues, bulletins, circulars, and
regulations of the institution made available to the ma-
triculant become a part of the contract.”)
This assumption allows us to focus on the question
of breach. Park alleges that IUSD violated the terms of
the “contract” by failing to follow the dismissal pro-
cedures outlined in its handbooks to the letter. IUSD
may not have done so, but that does not automatically
lead to a finding of breach. Indiana courts have taken
a flexible approach to the scope of contractual promises
between students and universities: “[H]ornbook rules
cannot be applied mechanically where the principal is
an educational institution and the result would be to
override [an academic] determination.” Gordon, 862
N.E.2d at 1248 (Ind. Ct. App. 2007). Thus, Indiana “courts
have quite properly exercised the utmost restraint in
applying traditional legal rules to disputes within the
academic community,” id., noting that “literal adherence
to internal rules will not be required where the

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dismissal rests upon expert judgments as to academic
or professional standards.” Neel, 435 N.E.2d at 612.
This case falls squarely within the group described
in Neel. The decision to dismiss Park was based on the
faculty’s determination that Park “fail[ed] to progress in
[her] professional development and fail[ed] to demon-
strate fitness to practice” at the level of proficiency re-
quired. Park’s complaint concedes as much: she failed
the remediation exam in Dr. Haug’s class; she engaged
in an “unprofessional exchange” with another professor;
and she breached the school’s confidentiality policy,
which is certainly relevant to the professional standards
that would be expected of a dentist. Compl. ¶¶ 38, 41, 51,
52. In all, Park’s record at IUSD was marred by a host
of problems, and, as a result, the faculty decided to
dismiss her. Absent some indication that this decision
was arbitrary or made in bad faith—and the complaint
points to none that we can detect—we decline to sec-
ond-guess the judgment of the faculty. Neel, 435 N.E.2d
at 613. Park has no state law claim for breach of contract.
B
Next, Park asserts that IUSD violated her rights to
procedural and substantive due process when it ex-
pelled her from the university. We consider first her
procedural due process claim, which requires her to
prove that the university deprived her of a cognizable
property interest and that it failed to provide whatever
process of law was due for such a deprivation. Omosegbon
v. Wells, 335 F.3d 668, 674 (7th Cir. 2003).

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Nos. 11-1933 & 11-2109 7
In other cases we have noted that where a plaintiff
asserts a due process violation in connection with a
state-created interest, such as a state-law contract right,
the possibility of state-court adjudication is sometimes
sufficient to meet the federal standard. Mid-American
Waste Sys., Inc. v. City of Gary, 49 F.3d 286, 291 (7th Cir.
1995); see also Galdikas v. Fagan, 342 F.3d 684, 691 (7th
Cir. 2003) (state-court process adequate to vindicate
substantive due process interest), abrogated on other
grounds, Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004). In
this case, however, we need not even reach that issue,
because Park has not identified a protectable property
interest.
As a general matter, a contract with a state agency
may give rise to a protected property interest. Board of
Regents of State Colls. v. Roth, 408 U.S. 564, 576-78 (1972). A
close examination of Park’s complaint, however, reveals
that she is not asserting an interest in continuing her
graduate education. Compare Hlavacek v. Boyle, 665
F.3d 823, 825 (7th Cir. 2011). Instead, she asserts an
interest in her allegedly contractually-guaranteed rights
to university process prior to being dismissed. Compl.
¶¶ 63, 66. That is, Park is complaining only about the
deprivation of her “right” to receive notice of the
charges against her, her “right” to prior notice of ad-
verse witness statements, and her “right” to cross-examine
those witnesses at university hearings. The Supreme
Court has emphasized that the federal Constitution’s due
process clause does not protect an interest in other pro-
cess. Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (“Process
is not an end in itself. The State may choose to require

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8 Nos. 11-1933 & 11-2109
procedures . . . but in making that choice the State does not
create an independent substantive right.”); see also Town
of Castle Rock v. Gonzales, 545 U.S. 748, 769-73 (Souter, J.,
concurring) (no federal due process protection for
“state-law benefit . . . [that] is itself a variety of procedural
regulation”). Park’s interest in contractually-guaranteed
university process is not protected by the federal Constitu-
tion. Doing so would supply “federal process as a substi-
tute simply for state process.” Castle Rock, 545 U.S. at 772
(Souter, J., concurring).
Park also asserts that IUSD violated her rights to sub-
stantive due process. We can quickly dispose of this
argument. As the Supreme Court pointed out in Washing-
ton v. Glucksberg, 521 U.S. 702 (1997), “the [Due Process]
Clause . . . provides heightened protection against gov-
ernment interference with certain fundamental rights
and liberty interests.” Id. at 720. The list of such rights
and interests is, however, a short one, including things
like the right to marry, the right to have children, the
right to marital privacy, the right to contraception, and
the right to bodily integrity. Id. Conspicuously missing
on this list is the right to follow any particular career.
Indeed, no court could recognize such a right without
acting in the teeth of the many cautions that the
Supreme Court has given against expanding the concept
of substantive due process, “because guideposts for
responsible decisionmaking in this unchartered area are
scarce and open-ended.” Id. Because Park’s interest in
becoming a dentist is not one that the due process
clause protects, the district court correctly found that
this part of her suit had to be dismissed.

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Nos. 11-1933 & 11-2109 9
C
Finally, Park attempts to raise a claim under the
Equal Protection Clause, based on the fact that she is a
woman of Korean descent and she supposedly belongs
to a “class of one.” Neither of these allegations with-
stands scrutiny.
Park concedes that her complaint did not specifically
plead that her race or her gender had anything to do
with what happened to her. This alone could defeat
her claim of race- and gender-based discrimination.
But even looking past this omission, Park’s complaint
does not plausibly allege discriminatory intent. The
complaint contains only one reference to any such dis-
crimination: a single statement that “Defendants’
conduct [expelling Park] was undertaken because of
her race, ancestry, national origin and/or gender.” Compl.
¶ 77. This unsupported legal conclusion is precisely
the type of allegation that was rejected in Iqbal, 556
U.S. 662, 678 (2009), and in Twombly, 550 U.S. 544, 556-57
(2007). On appeal, Park attempts to remedy this de-
ficiency by including a footnote in her brief noting that
she is “prepared to testify to specific instances in
which Defendants applied a pattern of prejudicial and
discriminatory standards of conduct to other female
[and Asian] dental students.” But an appellate brief is not
the place for an amendment to the complaint, and even
this footnote offers no facts that might plausibly support
these allegations.
To succeed on her “class of one” claim, Park must
show that IUSD intentionally discriminated against her

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10 Nos. 11-1933 & 11-2109
and that there is no rational basis for IUSD’s actions,
Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 913 (7th
Cir. 2012) (en banc) (Wood, J., dissenting), or that IUSD
should have known that its discriminatory actions
lacked justification, id. at 889 (Posner, J., lead opinion).
Park suggests that she has shown intentional discrim-
ination because other IUSD students who were party
to a cheating scandal at the school received a less
harsh punishment, despite their more serious violation.
See Supp. App’x to Reply Br. at A209 (citing Indiana
University School of Dentistry, WIKIPEDIA, http://
en .w ikip ed ia.or g/ w iki/Indiana_Un ive rs ity _S c h oo l_
of_Dentistry). Even if we put aside the fact that none
of these allegations is contained in her complaint, we
cannot overlook the fact that there is no reason to
suppose that these students are comparable to Park. We
do not know, for example, whether these students,
like Park, failed several classes, failed to schedule
required remediation exams, engaged in unprofessional
exchanges with their professors, and breached the univer-
sity’s confidentiality policy. These additional facts
defeat any plausible inference that Park’s expulsion
could be traced to intentional discrimination. Instead,
they show that IUSD’s decision to dismiss her, rather
than some of her peers, was not irrational. “It is entirely
rational . . . to permit state actors to make individualized
decisions when the very nature of their job is to take a
wide variety of considerations into account.” Del
Marcelle, 680 F.3d at 913 (Wood, J., dissenting). After
accounting for all of Park’s conduct, we see nothing in
the complaint that would cause us to question IUSD’s
decision to dismiss Park from the school.

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Nos. 11-1933 & 11-2109 11
IUSD did not breach its contract with Park, nor did
IUSD violate Park’s federal rights to due process or
equal protection of the laws. The judgment of the
district court is AFFIRMED.
8-30-12

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