Doe v. Board of Regents

attorney licensed to practice law in the State of Nebraska and
§§ 3-501.1, 3-501.3, 3-501.4, 3-501.7, 3-501.10, and 3-508.4 of
the rules of professional conduct and that respondent should be
and hereby is suspended from the practice of law for 90 days,
effective 30 days after the filing of this opinion. Respondent
shall comply with Neb. Ct. R. § 3-316 of the disciplinary rules,
and upon failure to do so, he shall be subject to punishment
for contempt of this court. Respondent is directed to pay costs
and expenses in accordance with §§ 7-114 and 7-115 of the
Nebraska Revised Statutes and §§ 3-310(P) and 3-323(B) of
the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
Judgment of suspension.
John doe , appellant, v. Board of regents of the
university of neBraska et al ., appellees.
788 N.W.2d 264
Filed August 27, 2010. 	No. S-09-256.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews
a district court’s order granting a motion to dismiss de novo, accepting all the
allegations in the complaint as true and drawing all reasonable inferences in favor
of the nonmoving party.
2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure
to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a
claim to relief that is plausible on its face. In cases in which a plaintiff does not
or cannot allege specific facts showing a necessary element, the factual allega-
tions, taken as true, are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will reveal evidence of
the element or claim.
3. Motions to Dismiss: Immunity. A trial court may properly address a claim of
sovereign immunity under a Neb. Ct. R. Pldg. § 6-1112(b)(6) motion.
4. Notice: Service of Process. Although Neb. Rev. Stat. § 25-505.01 (Reissue
2008) does not require service to be sent to the defendant’s residence or restrict
delivery to the addressee, due process requires notice to be reasonably calculated
to apprise interested parties of the pendency of the action and to afford them the
opportunity to present their objections.
5. Service of Process: Waiver. Under Neb. Rev. Stat. § 25-516.01 (Reissue 2008),
voluntary appearance of the party is equivalent to service that waives a defense of
492 	280 NeBRASkA RePoRTS
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

insufficient service or process if the party requests general relief from the court
on an issue other than sufficiency of service or process, or personal jurisdiction.
6. Public Officers and Employees: Service of Process: Claims. State officials, in
their individual capacities, can challenge service while still reserving the right, in
their official capacities, to contest a plaintiff’s claims on other grounds.
7. Constitutional Law: Immunity. The 11th Amendment does not define the scope
of the states’ sovereign immunity. States also have inherent immunity from suit.
8. Constitutional Law: Immunity: Waiver. Under 11th Amendment immunity, a
nonconsenting state is generally immune from suit unless the state has waived its
immunity or Congress has validly abrogated it.
9. Constitutional Law: Immunity: Municipal Corporations. eleventh Amendment
immunity does not extend to suits prosecuted against a municipal corporation or
other governmental entity which is not an arm of the state.
10. Constitutional Law: Immunity: Public Officers and Employees: Declaratory
Judgments: Injunction. eleventh Amendment immunity does not bar a claim
against state officers which seeks only prospective declaratory or injunctive relief
for ongoing violations of federal law.
11. Actions: Immunity. Under state sovereign immunity, a suit against a state agency
is a suit against the state.
12. Actions: Public Officers and Employees: Immunity. A court must determine
whether actions against individual officials sued in their official capacities are in
reality actions against the state and therefore barred by sovereign immunity.
13. ____: ____: ____. An action against a public officer to obtain relief from an
invalid act or from an abuse of authority by the officer or agent is not a suit
against the state and is not prohibited by sovereign immunity.
14. ____: ____: ____. Actions to restrain a state official from performing an affirma-
tive act and actions to compel an officer to perform an act the officer is legally
required to do are not barred by state sovereign immunity unless the affirmative
act would require the state official to expend public funds.
15. Public Officers and Employees: Immunity. If the State does not have immunity
from suit, state officials sued in their official capacities cannot assert it.
16. Tort Claims Act: Governmental Subdivisions. The State Tort Claims Act
governs tort claims brought against the Board of Regents of the University of
Nebraska and the University of Nebraska Medical Center.
17. Tort Claims Act: Jurisdiction: Immunity: Waiver. once a plaintiff establishes
subject matter jurisdiction under the State Tort Claims Act, the defendant may
affirmatively plead that the plaintiff has failed to state a cause of action under
Neb. Rev. Stat. § 81-8,219 (Reissue 2008) because an exception to the waiver of
sovereign immunity applies.
18. Tort Claims Act: Fraud. Fraud by concealment is a form of deceit and therefore
falls within the ambit of Neb. Rev. Stat. § 81-8,219(4) (Reissue 2008).
19. Constitutional Law: Immunity. Although by its terms, the 11th Amendment
applies only to suits against a state by citizens of another state, the U.S. Supreme
Court has extended the 11th Amendment’s applicability to suits by citizens
against their own states.
doe v. BoARd oF RegeNTS 	493
Cite as 280 Neb. 492

20. ____: ____. For Congress to abrogate a state’s 11th Amendment immunity, it
must (1) unequivocally intend to do so and (2) act under a valid grant of consti-
tutional authority.
21. ____: ____. Under § 5 of the 14th Amendment, Congress may enact legislation
abrogating state sovereign immunity to remedy and prevent violations of that
amendment. This authority permits Congress to enact prophylactic legislation that
both prevents and deters unconstitutional conduct by prohibiting conduct that is
somewhat broader than the conduct forbidden by the amendment.
22. ____: ____. To be classified as remedial, and therefore a valid exercise of its
power under § 5 of the 14th Amendment, Congress’ legislation abrogating state
sovereign immunity must exhibit a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.
23. Constitutional Law: Immunity: Federal Acts: Discrimination. Congress has
validly abrogated the State’s 11th Amendment immunity regarding claims under
title II of the Americans with disabilities Act of 1990 when a plaintiff alleges
discrimination in public education.
24. Actions: Federal Acts: Discrimination. A plaintiff seeking recovery for a viola-
tion under title II of the Americans with disabilities Act of 1990 must allege the
following: (1) The plaintiff has a disability; (2) the plaintiff is otherwise quali-
fied to receive the benefits of a public service, program, or activity; and (3) the
defendants excluded the plaintiff from participation in or denied the plaintiff the
benefits of such service, program, or activity or otherwise discriminated against
the plaintiff because of his or her disability.
25. Immunity: Federal Acts: Discrimination. In general, courts should follow the
Supreme Court’s analytical framework set out in United States v. Georgia, 546
U.S. 151, 126 S. Ct. 877, 163 L. ed. 2d 650 (2006), for determining abrogation
of sovereign immunity in claims under title II of the Americans with disabilities
Act of 1990.
26. Due Process. due process principles protect individuals from arbitrary depriva-
tion of life, liberty, or property without due process of law.
27. ____. A plaintiff asserting the inadequacy of procedural due process must first
establish that the government deprived him or her of interests which constitute
“liberty” or “property” interests within the meaning of the due Process Clause.
28. Schools and School Districts: Due Process. For academic dismissals, due proc-
ess is satisfied if the student was informed of the nature of the faculty’s dissatis-
faction and the potential for dismissal and if the decision to dismiss was careful
and deliberate.
Appeal from the district Court for douglas County: J. patrick
mullen, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
John doe, pro se.
Amy L. Longo and george T. Blazek, of ellick, Jones,
Buelt, Blazek & Longo, for appellees.
494 	280 NeBRASkA RePoRTS

heavican, c.J., Wright, connolly, gerrard, mccormack ,
and miller-lerman, JJ., and moore , Judge.
connolly, J.
I. SUMMARY
John doe sued the Board of Regents of the University of
Nebraska (Board), the University of Nebraska Medical Center
(UNMC), and the following UNMC faculty members in each
individual’s official and individual capacities: John gollan,
M.d., Ph.d.; Carl Smith, M.d.; Sonja kinney, M.d.; Jeffery
Hill, M.d.; david o’dell, M.d.; Wendy grant, M.d.; Sharon
Stoolman, M.d.; and Michael Spann, M.d. (collectively the
UNMC faculty members). doe seeks damages for fraudulent
concealment, alleged violations of his constitutional rights, and
breach of contract stemming from his dismissal from UNMC’s
College of Medicine.
The district court dismissed with prejudice doe’s com-
plaint against the UNMC faculty members in their individual
capacities because doe did not perfect service. The court also
dismissed with prejudice doe’s complaint against the Board,
UNMC, and the UNMC faculty members in their official
capacities. The court found that doe failed to state a claim for
which relief can be granted or that his claims were barred by
sovereign immunity. doe appeals.
We affirm in part and reverse in part. We conclude that the
court properly dismissed doe’s claims for fraudulent conceal-
ment, violation of his due process rights, and breach of contract.
But the court erred in dismissing doe’s claims under title II
of the Americans with disabilities Act of 1990 (AdA)1 and
§ 504 of the Rehabilitation Act of 1973 (Rehabilitation Act)2
against the Board, UNMC, and the UNMC faculty members in
their official capacities. We conclude that Congress has validly
abrogated 11th Amendment immunity for title II claims of dis-
crimination in public education. And the State now concedes
that it waived immunity for claims under the Rehabilitation
Act. We also reverse the district court’s dismissal of the UNMC
1 42 U.S.C. § 12131 et seq. (2006).
2 29 U.S.C. § 794(a) (2006).
doe v. BoARd oF RegeNTS 	495
Cite as 280 Neb. 492

faculty members, in their individual capacities, and remand
the cause for a determination of whether service by certified
mail at UNMC’s risk management office was reasonably cal-
culated to notify the defendants, in their individual capacities,
of the lawsuit.
II. BACkgRoUNd
1. doe’s complaint
We glean the following facts from doe’s complaint. doe
suffers from major depressive disorder. He qualifies as an indi-
vidual with a disability under the AdA and the Rehabilitation
Act. during his second year of medical school, UNMC granted
doe a leave of absence from school to receive treatment for
depression, insomnia, and anxiety.
In the fall of 2005, doe returned and began his third year
of medical school. during that academic year, he earned a
near-failing grade in his pediatrics clerkship and failing grades
in his obstetrics and gynecology clerkship and internal medi-
cine clerkship. doe appealed his obstetrics and gynecology
grade, which was upheld by both the obstetrics and gynecol-
ogy department and UNMC. doe did not appeal his pediatrics
clerkship grade or his internal medicine clerkship grade. He
alleges that o’dell told him that his failure of the “NBMe
shelf exam,” one component of his internal medicine clerkship
grade, was not appealable and resulted in an automatic failure
of the clerkship. doe claims that UNMC prevented him from
appealing his grade on the internal medicine NBMe shelf
exam, but that UNMC allowed a medical student who was not
disabled to appeal.
doe then began his family medicine clerkship. during that
clerkship, doe notified Hill, chair of UNMC’s scholastic evalu-
ation committee, that his mental health was deteriorating and
that he needed to seek treatment from his psychologist. doe
alleges that Hill ignored doe’s concerns about his mental
health but that doe saw the psychologist on several different
occasions. Hill did, however, require doe to sign a contract to
continue in medical school. doe refused to sign the contract,
and the matter was brought before the evaluation committee.
496 	280 NeBRASkA RePoRTS

At a hearing, the evaluation committee presented doe with
a new contract, to which had been added a professionalism
clause that provided: “‘I understand that any ratings of –2 or
below on the professionalism ranking system, coupled with
any negative comments concerning professionalism behavior,
in any required clerkship or senior elective will be grounds for
termination of enrollment.’” doe signed the contract but claims
that the defendants did not require other nondisabled students
with similar academic standing to sign a contract containing a
professionalism clause.
In the fall of 2006, doe completed his surgery clerkship.
during the clerkship, doe developed a hernia that required
surgery. doe scheduled the surgery on the day he was required
to take the surgical NBMe shelf exam. He alleges that the
surgery clerkship director, grant, allowed him to reschedule
the examination. That same day, however, Spann required him
to see patients. doe claims that Spann did not require other
students to see patients that morning because the students were
scheduled to be taking the NBMe shelf exam.
Spann also completed an evaluation of doe, giving him a
poor performance evaluation. doe claims that grant’s negative
remarks influenced Spann’s evaluation and that grant provided
Spann with privileged and fictitious information regarding
doe. Based on Spann’s evaluation, the evaluation committee
dismissed doe from medical school because he violated the
professionalism clause. Under the evaluation committee guide-
lines, doe appealed his dismissal. The appeals board and the
medical school’s dean upheld the decision.
doe claims that the defendants (1) fraudulently concealed
information regarding his grades and evaluations, (2) discrimi-
nated against him because of his disability, (3) violated his due
process rights, and (4) were contractually obligated to allow
doe to review all information used by UNMC in determining
his grades and dismissing him.
2. defendants move for dismissal
The defendants moved to dismiss under the following sub-
sections of rule 12(b) of the Nebraska Court Rules of Pleading
doe v. BoARd oF RegeNTS 	497
Cite as 280 Neb. 492

in Civil Cases3: subsection (1) (lack of jurisdiction), subsec-
tion (5) (insufficiency of service), and subsection (6) (failure
to state a claim). They asserted that (1) the State Tort Claims
Act4 immunizes the Board, UNMC, and the UNMC faculty
members from claims of fraudulent concealment; (2) sover-
eign immunity immunizes the Board, UNMC, and the UNMC
faculty members, in their official capacities, from claims for
money damages; (3) the UNMC faculty members, in their
individual capacities, have qualified immunity; and (4) none of
the parties had been properly served. The record shows, how-
ever, that doe served summons at the Attorney general’s office
under Neb. Rev. Stat. § 25-510.02(1) (Reissue 2008). And at
the hearing on the motion to dismiss, the Board, UNMC, and
the UNMC faculty members stated that they were not challeng-
ing service on them in their official capacities. But they main-
tained that doe did not properly serve summons on the UNMC
faculty members in their individual capacities.
3. district court’s order
The court found that doe failed to properly serve the
UNMC faculty members in their individual capacities. Because
6 months had passed since doe had filed his complaint, the
court dismissed the UNMC faculty members in their individual
capacities.5 The court also dismissed all the claims against
the remaining defendants. Regarding his fraudulent conceal-
ment claim, the court concluded that the State Tort Claims
Act barred suits against the defendants for misrepresentation
or deceit claims. But even if that conclusion was incorrect,
the court dismissed the claim for two additional reasons. First,
doe failed to allege facts indicating that the defendants’ alleged
concealment of any records met the criteria of fraudulent mis-
representation. Second, doe did not claim that any alleged
concealment affected his dismissal. Regarding doe’s discrimi-
nation claim, the court concluded that the alleged facts did not
involve a fundamental right abrogating the State’s sovereign
3 See Neb. Ct. R. Pldg. § 6-1112(b).
4 See Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2008).
5 See Neb. Rev. Stat. § 25-217 (Reissue 2008).
498 	280 NeBRASkA RePoRTS

immunity. And, regarding doe’s due process claims, the court
concluded that the defendants had qualified immunity. The
court also concluded that doe alleged insufficient facts to show
that the defendants had violated a liberty or property interest.
The court further concluded that doe’s allegations showed the
defendants afforded him due process required for academic dis-
missal. Finally, the court found that doe failed to state a breach
of contract claim.
III. ASSIgNMeNT oF eRRoR
doe assigns, consolidated and restated, that the district court
erred in dismissing his complaint.
IV. STANdARd oF ReVIeW
[1] An appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo, accepting all the allegations
in the complaint as true and drawing all reasonable inferences
in favor of the nonmoving party.6 Until now, we have stated
that complaints should be liberally construed in the plaintiff’s
favor and should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his or her claim which would entitle
the plaintiff to relief.7 In other cases, we have similarly stated
that dismissal under § 6-1112(b)(6) should be granted only in
the unusual case in which a plaintiff includes allegations that
show on the face of the complaint that there is some insuper-
able bar to relief.8
Because the Nebraska Rules of Pleading in Civil Cases are
modeled after the Federal Rules of Civil Procedure, we have
adopted from federal case law these standards for testing the
sufficiency of a plaintiff’s complaint.9 But the U.S. Supreme
Court has recently revised the federal standard for determining
6 See McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009).
7 Id.
8 Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
9 See, Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005);
Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574
(2005).
doe v. BoARd oF RegeNTS 	499
Cite as 280 Neb. 492

whether a complaint can survive a motion to dismiss for failure
to state a claim. So we consider these cases in determining
whether to revise our standard also.
In 2007 and 2009 cases, the Supreme Court held that to
prevail against a motion to dismiss, a plaintiff must allege
“sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”10 In Bell Atlantic Corp. v.
Twombly (Twombly),11 the Court concluded that a plausibility
standard is more consistent with Fed. R. Civ. P. 8(a)(2), which
requires a pleading to contain “‘a short and plain statement of
the claim showing that the pleader is entitled to relief.’”12 And
it reasoned that general pleading principles oblige a plaintiff
to provide more than labels and conclusions, or a mere recita-
tion of the elements of a claim, because courts are not required
to accept as true legal conclusions or conclusory statements.
Instead, the allegations must raise the right to relief “above the
speculative level.”13
In Twombly, the issue was whether the plaintiffs should be
permitted to engage in discovery for facts that might prove
the necessary element of their claim: that the defendants had
agreed not to compete with each other, in violation of anti-
trust laws. The plaintiffs specifically alleged that the illegal
agreement existed and also alleged circumstantial evidence of
an agreement. But the circumstantial evidence—parallel busi-
ness behavior—was legal conduct unless it stemmed from the
defendants’ preceding agreement. To prevail, a plaintiff is also
required to adduce evidence tending to exclude the possibility
of independent action.
The Second Circuit had held that the complaint was suffi-
cient because the defendants’ parallel conduct in not competing
was just as consistent with collusion as permissible business
behavior and because the defendants had not shown that “no
10 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. ed. 2d 868
(2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L. ed. 2d 929 (2007).
11 Twombly, supra note 10.
12 Id., 550 U.S. at 556.
13 Id., 550 U.S. at 555.
500 	280 NeBRASkA RePoRTS

set of facts”14 would permit the plaintiffs to prove collusion. In
reversing, the Supreme Court stated that its earlier “‘no set of
facts’” language had been interpreted to mean that “any state-
ment revealing the theory of the claim will suffice unless its
factual impossibility may be shown from the face of the plead-
ings.”15 It reasoned that such interpretations permitted conclu-
sory pleadings to survive a motion to dismiss if any possibility
existed that the plaintiff would later establish facts to support
recovery. The Court concluded that in some cases, this inter-
pretation permitted expensive discovery for groundless claims.
Accordingly, the Court held that in antitrust cases, a complaint
must allege
enough factual matter (taken as true) to suggest that an
agreement was made. Asking for plausible grounds to
infer an agreement does not impose a probability require-
ment at the pleading stage; it simply calls for enough fact
to raise a reasonable expectation that discovery will reveal
evidence of illegal agreement. And, of course, a well-
pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of the facts alleged is improbable,
and “that a recovery is very remote and unlikely.”16
Applying 	these 	principles, 	the 	Court 	held 	that 	the
complaint’s
allegation of parallel conduct and a bare assertion of
conspiracy [did] not suffice. Without more, parallel con-
duct does not suggest conspiracy, and a conclusory alle-
gation of agreement at some unidentified point does not
supply facts adequate to show illegality. Hence, when
allegations of parallel conduct are set out in order to
make [an antitrust] claim, they must be placed in a con-
text that raises a suggestion of a preceding agreement,
not merely parallel conduct that could just as well be
independent action.17
14 Twombly v. Bell Atlantic Corp., 425 F.3d 99, 114 (2d Cir. 2005), reversed,
Twombly, supra note 10.
15 Twombly, supra note 10, 550 U.S. at 561.
16 See id., 550 U.S. at 556.
17 Id., 550 U.S. at 556-57.
doe v. BoARd oF RegeNTS 	501
Cite as 280 Neb. 492

So, the complaint in Twombly was insufficient for two rea-
sons: (1) The allegation of a conspiracy was a legal conclusion
not entitled to an assumption of truth; and (2) the complaint’s
only factual allegation did not support an inference of a preced-
ing agreement even if true. But in a decision issued 2 weeks
after Twombly, the Court reversed a decision affirming the dis-
missal of a complaint for conclusory allegations. In Erickson v.
Pardus,18 the Court emphasized that
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are not
necessary; the statement need only “‘give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.’”. . . In addition, when ruling on a defend-
ant’s motion to dismiss, a judge must accept as true all of
the factual allegations contained in the complaint.
In 2009, the Supreme Court held that Twombly’s plausibility
standard applied to all civil actions. In Ashcroft v. Iqbal,19 the
majority explained the plausibility standard as follows:
A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reason-
able inference that the defendant is liable for the miscon-
duct alleged. . . . The plausibility standard is not akin to
a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. .
. . Where a complaint pleads facts that are “merely con-
sistent with” a defendant’s liability, it “stops short of the
line between possibility and plausibility of ‘entitlement
to relief.’” . . .
Two 	working 	principles 	underlie 	our 	decision 	in
Twombly. First, the tenet that a court must accept as true
all of the allegations contained in a complaint is inappli-
cable to legal conclusions. Threadbare recitals of the ele-
ments of a cause of action, supported by mere conclusory
18 Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S. Ct. 2197, 167 L. ed. 2d
1081 (2007) (emphasis supplied), citing Twombly, supra note 10.
19 Iqbal, supra note 10, 556 U.S. at 678-79 (citations omitted).
502 	280 NeBRASkA RePoRTS

statements, do not suffice. . . . [Fed. R. Civ. P.] 8 marks a
notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock
the doors of discovery for a plaintiff armed with nothing
more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. . . . determining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its judi-
cial experience and common sense. . . . But where the
well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint
has alleged—but it has not “show[n]”—“that the pleader
is entitled to relief.” . . .
In keeping with these principles a court considering
a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclu-
sions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a com-
plaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
In Iqbal, the plaintiff alleged that after the September 11,
2001, terrorist attacks, government officials created a policy
to detain Muslim men for discriminatory purposes and they
knew of and condoned the detainees’ mistreatment during
detention. The majority concluded that these allegations were
bare assertions, amounting to “nothing more than a ‘formulaic
recitation of the elements’ of a constitutional discrimination
claim.”20 As such, the Court deemed the allegations to be
“conclusory and not entitled to be assumed true.”21 The major-
ity also concluded that the complaint’s factual allegations
were implausible in the light of the more likely explanation
20 Id., 556 U.S. at 681.
21 Id.
doe v. BoARd oF RegeNTS 	503
Cite as 280 Neb. 492

that the men were held because of their suspected links to the
attacks until cleared of terrorist activity.
The majority rejected the argument that its plausibility stan-
dard was contrary to notice pleading: “[T]he Federal Rules do
not require courts to credit a complaint’s conclusory statements
without reference to its factual content.”22 But the four-justice
dissent disagreed with the majority’s statement that the alle-
gations were all conclusory. The dissent concluded that the
complaint stated a claim of discriminatory conduct assuming
that its allegations were true. And it found no principled basis
for the majority’s disregard of some allegations and acceptance
of others.
Some of the Supreme Court’s reasoning for its plausibility
standard is consistent with what we have previously said in
reviewing dismissal orders. Specifically, we have stated that
we will accept as true all the facts which are well pled and the
proper and reasonable inferences of law and fact which may
be drawn therefrom, but not the pleader’s conclusions.23 Also,
like its federal counterpart,24 Neb. Ct. R. Pldg. § 6-1108(a)(2)
also requires a complaint to include a short and plain state-
ment of the claim showing that the pleader is entitled to relief.
And we share the Supreme Court’s concern that the “no set of
facts” language could permit some meritless claims to proceed
to discovery.
But we are also concerned that lower federal courts have
interpreted the Court’s plausibility standard as a heightened
pleading standard. In some cases decided after Twombly and
Iqbal25—frequently, cases requiring the plaintiff to show a
defendant’s intent or alleged involvement in unlawful con-
duct—federal courts have required a complaint to contain spe-
cific factual allegations of the defendant’s claimed misconduct
22 Id., 556 U.S. at 686.
23 See Kanne v. Visa U.S.A., 272 Neb. 489, 723 N.W.2d 293 (2006), citing
Kellogg, supra note 9.
24 Fed. R. Civ. P. 8(a)(2).
25 Iqbal, supra note 10.
504 	280 NeBRASkA RePoRTS

to survive a motion to dismiss for failure to state a claim.26 In
addition, commentators have found that courts dismiss a higher
percentage of civil rights claims and employment discrimina-
tion claims when the plausibility standard is cited.27
But we do not believe that the Supreme Court intended dis-
missal to hinge on whether the plaintiff can allege specific facts
of a necessary element. In Twombly, the Supreme Court spe-
cifically stated that it was not requiring “heightened fact plead-
ing of specifics.”28 In Erickson,29 it reiterated that allegations of
specific facts are not required and that a judge must accept as
true all of the factual allegations contained in the complaint.
In practical effect, it appears the plausibility standard mainly
comes into play when the plaintiff cannot allege direct evidence
of a necessary element at the pleading stage.
We recognize that the Court’s decision in Iqbal reflects
a tension in how different judges might view the same alle-
gations. For example, even the Iqbal majority treated what
were basically the same allegations both as implausible fac-
tual allegations and as a mere recitation of the elements.
And we recognize that Congress has attempted to overturn
the “Twombly-Iqbal” standard—which is perceived as a shift
toward fact pleading—and restore the old standard.30 This
26 See, e.g., In re Travel Agent Com’n Antitrust Litigation, 583 F.3d 896 (6th
Cir. 2009); Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009); Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009); Moss v. U.S. Secret Service, 572
F.3d 962 (9th Cir. 2009); Maldonado v. Fontanes, 568 F.3d 263 (1st Cir.
2009); Panther Partners Inc. v. Ikanos Communications, Inc., 347 Fed.
Appx. 617 (2d Cir. 2009); Lopez v. Beard, 333 Fed. Appx. 685 (3d Cir.
2009).
27 See Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading
Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011
(2009).
28 Twombly, supra note 10, 550 U.S. at 570.
29 Erickson, supra note 18.
30 See, 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. Supp. 2010); Notice Pleading Restoration Act
of 2009, S. 1504, 111th Cong. § 2 (2009); open Access to Courts Act of
2009, H.R. 4115, 111th Cong. (2009).
doe v. BoARd oF RegeNTS 	505
Cite as 280 Neb. 492

legislation stalled in committee.31 But we believe that the
Court’s decision in Twombly provides a balanced approach for
determining whether a complaint should survive a motion to
dismiss and proceed to discovery.
[2] Accordingly, we hold that to prevail against a motion to
dismiss for failure to state a claim, a plaintiff must allege suf-
ficient facts, accepted as true, to state a claim to relief that is
plausible on its face. In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim.32
V. ANALYSIS
1. state’s claims of sovereign immunity
are affirmative defenses
The court dismissed all of doe’s claims against the UNMC
faculty members in their individual capacities for insufficient
service of process. It also dismissed the following claims
against the Board, UNMC, and the UNMC faculty members
in their official capacities as barred by the State’s sovereign
immunity: doe’s fraudulent concealment claim, his discrimi-
nation claims under the federal AdA and the Rehabilitation
Act, and his due process claims. Alternatively, it concluded
that doe failed to state a claim of fraudulent concealment and
was afforded sufficient due process for academic dismissal.
It also concluded that doe failed to state a breach of con-
tract claim.
We have previously concluded that “when a motion to dis-
miss raises both rule 12(b)(1) [(subject matter jurisdiction)] and
[rule 12(b)](6) . . . , the court should consider the rule 12(b)(1)
. . . first and should then consider the rule 12(b)(6) . . . only if
31 See, H.R. 4115, 155 Cong. Rec. H13351 (daily ed. Nov. 19, 2009); S.
1504, 155 Cong. Rec. S7869 (daily ed. July 22, 2009).
32 See Twombly, supra note 10. See, also, Morgan v. Hubert, 335 Fed. Appx.
466 (5th Cir. 2009), citing In re Southern Scrap Material Co., LLC, 541
F.3d 584 (5th Cir. 2008).
506 	280 NeBRASkA RePoRTS

it determines that it has subject matter jurisdiction.”33 We have
also held that when a motion to dismiss raises rule 12(b)(6) and
any combination of rule 12(b)(2), (4), and (5), the court should
consider dismissal under rule 12(b)(2), (4), and (5) first. And
then the court should consider dismissal under rule 12(b)(6)
only if it determines that it has personal jurisdiction and that
process and service of process were sufficient.34 Here, the court
failed to specify whether it considered the defendants’ sover-
eign immunity claims to fall under the defendants’ 12(b)(1)
motion or their 12(b)(6) motion.
[3] The defendants contend that the court’s conclusion that
the State’s sovereign immunity barred some of doe’s claims
meant that the court lacked subject matter jurisdiction for
those claims. But we have interpreted exceptions to the State’s
waiver of immunity under both the State Tort Claims Act
and the Political Subdivisions Tort Claims Act as affirma-
tive defenses that the State must plead and prove.35 The U.S.
Supreme Court has not decided whether 11th Amendment
immunity is a jurisdictional issue.36 But under its current view,
states can waive 11th Amendment immunity, and, following
the Court’s lead in some cases, federal courts often decide the
merits of a claim without addressing sovereign immunity.37 So
we conclude that a trial court may properly address a claim of
sovereign immunity under a 12(b)(6) motion. We next deter-
mine whether the record shows sufficient process and service
before considering whether doe stated claims for which a court
could grant relief. The defendants do not dispute that doe per-
fected service on the Board, UNMC, and the UNMC faculty
members in their official capacities. But they contend that doe
33 Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 600, 694 N.W.2d 625,
629-30 (2005).
34 Holmstedt v. York Cty. Jail Supervisor, 275 Neb. 161, 745 N.W.2d 317
(2008).
35 See Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 605 (1998).
36 See Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct.
2047, 141 L. ed. 2d 364 (1998).
37 See 13 Charles Alan Wright et al., Federal Practice and Procedure § 3524.1
(2008).
doe v. BoARd oF RegeNTS 	507
Cite as 280 Neb. 492

did not perfect service on the UNMC faculty members in their
individual capacities.
2. record fails to shoW Whether doe properly
served unmc faculty memBers in
their individual capacities
The district court found that doe had not properly served
the UNMC faculty members in their individual capacities.
doe argues that he complied “in all substantial respects” with
Neb. Rev. Stat. §§ 25-505.01 and 25-508.01 (Reissue 2008)
and that the defendants received actual notice of the lawsuit.38
He argues that when the defendants have actual notice, a court
should liberally construe rules governing service.
Because doe has sued the UNMC faculty members in their
individual capacities, § 25-508.01 governs service upon them.
Section 25-508.01(1) provides that “[a]n individual party . . .
may be served by personal, residence, or certified mail serv-
ice.” Here, the record lacks evidence that doe served the
UNMC faculty members personally or at their residences.
Instead, he served them individually by sending the complaint,
by certified mail, to the risk management office at UNMC.
Section 25-505.01 governs service by certified mail. Section
25-505.01(c)(i) requires that service of summons be made
“within ten days of issuance, sending the summons to the defend-
ant by certified mail with a return receipt requested showing to
whom and where delivered and the date of delivery.”
[4] Unlike many state statutes that permit certified mail
service, § 25-505.01 does not require service to be sent to the
defendant’s residence or restrict delivery to the addressee.39
But due process requires notice to be reasonably calculated to
apprise interested parties of the pendency of the action and to
afford them the opportunity to present their objections.40 As
stated, the district court made no findings regarding service,
38 Brief for appellant at 30.
39 See, John P. Lenich, Nebraska Civil Procedure § 10:9 (2008); 62B Am.
Jur. 2d Process § 211 (2005).
40 See County of Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d 357
(2008).
508 	280 NeBRASkA RePoRTS

and we cannot determine from the record whether sending the
summons to UNMC’s risk management office was reasonably
calculated to notify each defendant that he or she had been
sued in his or her individual capacity.
[5] doe further argues, however, that through their attorney,
the defendants, on August 5, 2008, all made voluntary appear-
ances at a hearing regarding their motion to dismiss. And under
Neb. Rev. Stat. § 25-516.01 (Reissue 2008), voluntary appear-
ance of the party is equivalent to service41 that waives a defense
of insufficient service or process if the party requests general
relief from the court on an issue other than sufficiency of serv-
ice or process, or personal jurisdiction.42
[6] But the defendants affirmatively pled insufficiency of
service of process under rule 12(b)(5) and voluntarily appeared
in their individual capacities only to object to the sufficiency
of process. While they also moved to dismiss doe’s complaint
under other subsections of rule 12(b), the defendants, in their
official capacities, did not waive a defense or objection by
joining one or more other 12(b) defenses or objections in a
responsive motion.43 In sum, state officials, in their individual
capacities, can challenge service while still reserving the right,
in their official capacities, to contest a plaintiff’s claims on
other grounds. So, the only issue regarding individual service
is whether service by certified mail at UNMC’s risk manage-
ment office was reasonably calculated to notify the defendants
in their individual capacities. We conclude that this ques-
tion presents an issue of fact, and we remand the cause for
that determination.
3. sovereign immunity principles
As noted, the district court found that doe’s claims against
the Board, UNMC, and the UNMC faculty members in their
official capacities were barred by sovereign immunity or that
41 See § 25-516.01(1). See, also, Henderson v. Department of Corr. Servs.,
256 Neb. 314, 589 N.W.2d 520 (1999).
42 See § 25-516.01(2). See, also, In re Petition of SID No. 1, 270 Neb. 856,
708 N.W.2d 809 (2006).
43 See § 6-1112(b).
doe v. BoARd oF RegeNTS 	509
Cite as 280 Neb. 492

he failed to state a cause of action in law or equity. We will
address each of doe’s claims individually. But we first pause to
explain the applicable sovereign immunity principles.
[7] Regarding doe’s discrimination claims under the AdA
and the Rehabilitation Act, federal law governs whether a
defendant is entitled to 11th Amendment immunity.44 But “the
eleventh Amendment does not define the scope of the States’
sovereign immunity; it is but one particular exemplification of
that immunity.”45 States also have inherent immunity from suit
as “a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution.”46
[8-10] Under 11th Amendment immunity, a nonconsenting
state is generally immune from suit unless the state has waived
its immunity or Congress has validly abrogated it.47 But 11th
Amendment immunity “does not extend to suits prosecuted
against a municipal corporation or other governmental entity
which is not an arm of the State.”48 And 11th Amendment
immunity does not bar a claim against state officers which
seeks only prospective declaratory or injunctive relief for ongo-
ing violations of federal law.49
[11-13] Under state sovereign immunity, we have held that a
suit against a state agency is a suit against the state.50 And we
have held the Board and the University of Nebraska are state
agencies.51 In reviewing actions against state employees, we
have similarly held that a court must determine whether actions
44 See 13 Wright et al., supra note 37, § 3524.2 (citing cases).
45 Federal Maritime Comm’n v. South Carolina Ports Authority, 535 U.S.
743, 753, 122 S. Ct. 1864, 152 L. ed. 2d 962 (2002).
46 Alden v. Maine, 527 U.S. 706, 713, 119 S. Ct. 2240, 144 L. ed. 2d 636
(1999).
47 See, id.; 13 Wright et al., supra note 37, § 3524.
48 Alden, supra note 46, 527 U.S. at 756.
49 See, Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 122
S. Ct. 1753, 152 L. ed. 2d 871 (2002); Alden, supra note 46.
50 In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).
51 Catania v. The University of Nebraska, 204 Neb. 304, 282 N.W.2d 27
(1979), overruled on other grounds, Blitzkie v. State, 228 Neb. 409, 422
N.W.2d 773 (1988).
510 	280 NeBRASkA RePoRTS

against individual officials sued in their official capacities
are in reality actions against the state and therefore barred by
sovereign immunity.52 In addressing this issue, we have stated
that an action against a public officer to obtain relief from an
invalid act or from an abuse of authority by the officer or agent
is not a suit against the state and is not prohibited by sover-
eign immunity.53 We have further stated that suits which seek
to compel affirmative action on the part of a state official are
barred by sovereign immunity, but that if a suit simply seeks to
restrain the state official from performing affirmative acts, it is
not within the rule of immunity.54
We recognize that the “‘affirmative action’” test, which we
adopted in 1995,55 has been criticized as easily manipulated to
limit “the ability of citizens to vindicate their rights.”56 But in
the light of the cases we cited and the facts of the 1995 case
in which we adopted the test, we believe that we meant that
sovereign immunity bars suits to compel affirmative actions
that require a state official to expend public funds. In recent
cases interpreting the standard, we have not interpreted “affirm-
ative action” to include suits to compel state officers to take an
action required by law when that action would not require them
to expend public funds.57
[14] So we hold that actions to restrain a state official from
performing an affirmative act and actions to compel an officer
to perform an act the officer is legally required to do are not
barred by state sovereign immunity unless the affirmative act
would require the state official to expend public funds. As the
Supreme Court has consistently stated, “‘when the action is in
essence one for the recovery of money from the state, the state
52 See State ex rel. Steinke v. Lautenbaugh, 263 Neb. 652, 642 N.W.2d 132
(2002).
53 Id.
54 Id.
55 See County of Lancaster v. State, 247 Neb. 723, 728, 529 N.W.2d 791, 794
(1995).
56 Lenich, supra note 39, § 20:10 at 732-33.
57 See County of Lancaster, supra note 55. Compare State ex rel. Steinke,
supra note 52.
doe v. BoARd oF RegeNTS 	511
Cite as 280 Neb. 492

is the real, substantial party in interest and is entitled to invoke
its sovereign immunity from suit even though individual offi-
cials are nominal defendants.’”58
[15] Finally, “[t]he only immunities that can be claimed in
an official-capacity action are forms of sovereign immunity
that the entity, [as an] entity, may possess, such as the eleventh
Amendment.”59 So if the State does not have immunity from
suit, state officials sued in their official capacities cannot assert
it.60 And, obviously, if the district court correctly determined
that doe failed to state a cause of action, we need not consider
a sovereign immunity defense.
4. fraudulent concealment
doe’s first claim raises allegations of fraudulent conceal-
ment. doe argues that under the Board’s bylaws, kinney and
Smith had a duty to disclose any evaluations or material used
by the obstetrics and gynecology department to determine
his grade. He argues that kinney and Smith had knowledge
of material facts; they concealed or suppressed those facts
with the intent to mislead him; they misled him; and he suf-
fered damages.
The Board, UNMC, and the UNMC faculty members, in
their official capacities, contend that because the State has
not waived immunity for misrepresentation claims, they are
immune from suit.
[16-18] As we know, the State Tort Claims Act61 governs
tort claims brought against the Board and UNMC. Under that
act, the State has waived its sovereign immunity for many
tort claims, but it also lists exceptions to the waiver.62 once
a plaintiff establishes subject matter jurisdiction under the
State Tort Claims Act, the defendant may affirmatively plead
58 Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S. Ct. 900, 137 L.
ed. 2d 55 (1997).
59 Kentucky v. Graham, 473 U.S. 159, 167, 105 S. Ct. 3099, 87 L. ed. 2d 114
(1985).
60 See Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996).
61 See §§ 81-8,209 through 81-8,235.
62 See § 81-8,219.
512 	280 NeBRASkA RePoRTS

that the plaintiff has failed to state a cause of action under
§ 81-8,219 because an exception to the waiver of sovereign
immunity applies.63 Under § 81-8,219(4), one of the listed
exceptions is for claims “arising out of . . . misrepresentation
[or] deceit.” And we have stated that “[f]raud by concealment
is a form of deceit” and therefore falls within the ambit of
§ 81-8,219(4).64
Here, doe alleges that the defendants fraudulently con-
cealed information from him to his detriment. The exception in
§ 81-8,219(4) bars this claim against the Board and UNMC for
fraudulent concealment. Further, under his fraudulent conceal-
ment claim, doe sought money damages, not to compel state
officials to do an act they were lawfully required to do. Thus,
his claim against the UNMC faculty members in their official
capacities is also barred.
5. discrimination Because of disaBility
(a) Americans with disabilities Act
doe alleges that he qualifies as an individual with a disabil-
ity under the AdA. He claims that under title II of the AdA,
the defendants failed to accommodate his disability and treated
him differently from nondisabled students. The Board and
UNMC argue that the State’s sovereign immunity under the
11th Amendment bars doe’s claim under title II of the AdA.
They argue that doe has alleged no title II violation involving
a fundamental right and, so, that they are immune from suit
under the 11th Amendment.
Title II of the AdA prohibits discrimination against a quali-
fied individual with a disability, in the participation or receipt
of public services, programs, or activities, because of the dis-
ability.65 It also requires state schools and universities to make
reasonable modifications to their rules, policies, or practices
to accommodate a disabled student’s participation in state
63 See Johnson v. State, 270 Neb. 316, 700 N.W.2d 620 (2005).
64 Security Inv. Co. v. State, 231 Neb. 536, 550, 437 N.W.2d 439, 448 (1989).
See, also, 37 Am. Jur. 2d Fraud and Deceit § 1 (2001).
65 See 42 U.S.C. § 12132.
doe v. BoARd oF RegeNTS 	513
Cite as 280 Neb. 492

educational programs.66 By incorporating the remedies avail-
able under the federal Rehabilitation Act, title II of the AdA
also authorizes private suits against public entities to enforce
its provisions.67
[19] But the 11th Amendment generally bars claims against
a state or state officials sued in their official capacities. It pro-
vides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.”
Although by its terms, the 11th Amendment applies only to suits
against a state by citizens of another state, the U.S. Supreme
Court has extended the 11th Amendment’s applicability to suits
by citizens against their own states.68 So whether doe can sue
the State depends upon whether Congress has validly abrogated
the State’s 11th Amendment immunity under the AdA.
[20] For Congress to abrogate a state’s 11th Amendment
immunity, it must (1) unequivocally intend to do so and (2)
act under a valid grant of constitutional authority.69 Regarding
the 	first 	element, 	we 	have 	recognized 	that 	Congress 	has
unequivocally expressed its intent to abrogate immunity under
the AdA.70
[21,22] The second element—whether Congress had the
power 	to 	abrogate 	state 	immunity—depends 	on 	whether
Congress exceeded the scope of its enforcement power under
§ 5 of the 14th Amendment. Under § 5, Congress may enact
legislation abrogating state sovereign immunity to remedy
and prevent violations of that amendment.71 This authority
66 See, Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. ed. 2d 820
(2004), citing 42 U.S.C. § 12131(2); Toledo v. Sanchez, 454 F.3d 24 (1st
Cir. 2006).
67 See, 42 U.S.C. § 12133; Lane, supra note 66.
68 Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S. Ct. 955,
148 L. ed. 2d 866 (2001).
69 Id.
70 Keef v. State, 271 Neb. 738, 716 N.W.2d 58 (2006). See, also, Garrett,
supra note 68.
71 See, e.g., Lane, supra note 66.
514 	280 NeBRASkA RePoRTS

permits Congress to enact “‘prophylactic’” legislation that
both prevents and deters unconstitutional conduct by pro-
hibiting conduct that is somewhat broader than the conduct
forbidden by the amendment.72 But Congress’ enforcement
power under § 5 is limited to remedial legislation.73 It can-
not use its § 5 authority to substantively redefine the 14th
Amendment right at issue.74 To be classified as remedial, and
therefore a valid exercise of its § 5 power, Congress’ legisla-
tion must exhibit a “‘congruence and proportionality between
the injury to be prevented or remedied and the means adopted
to that end.’”75
We have stated that the congruence and proportionality
test has two parts.76 The first looks to the legislative history
and what specific injury Congress is attempting to address.77
The second requires the statutory remedy to be congruent and
proportional to the injury identified in the congressional find-
ings.78 But federal appellate courts have characterized the test
as requiring a three-part inquiry: (1) Identify the constitutional
right at issue; (2) determine whether there was a history of
unconstitutional discrimination to support Congress’ prophy-
lactic legislation; and (3) determine whether the rights and
remedies created by the statute are congruent and proportional
to the constitutional rights it purports to enforce and Congress’
record of constitutional violations.79
72 See id., 541 U.S. at 518.
73 Keef, supra note 70, citing City of Boerne v. Flores, 521 U.S. 507, 117 S.
Ct. 2157, 138 L. ed. 2d 624 (1997).
74 See, Lane, supra note 66; Nevada Dept. of Human Resources v. Hibbs,
538 U.S. 721, 123 S. Ct. 1972, 155 L. ed. 2d 953 (2003), quoting Kimel
v. Florida Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. ed. 2d 522
(2000).
75 Keef, supra note 70, 271 Neb. at 743, 716 N.W.2d at 63.
76 Id.
77 Id.
78 Id.
79 See, e.g., Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524 (3d
Cir. 2007), citing Garrett, supra note 68; Ass’n for Disabled Americans v.
Fla. Intern. Univ., 405 F.3d 954 (11th Cir. 2005).
doe v. BoARd oF RegeNTS 	515
Cite as 280 Neb. 492

Before 2004, the Court had stated that when the discrimi-
nation targeted by Congress is subject only to rational basis
review, the legislation must be in response to an identified,
widespread pattern of the states’ unconstitutional conduct, i.e.,
irrational reliance on Congress’ prohibited criteria.80 But when
the alleged discrimination is subject to heightened scrutiny,
it is “easier for Congress to show a pattern of state constitu-
tional violations.”81
For example, in Board of Trustees of Univ. of Ala. v. Garrett,82
the Court concluded that under title I of the AdA, Congress’
abrogation of states’ immunity failed the congruence and pro-
portionality test. Title I prohibits employment discrimination
against a qualified individual with a disability. The Court stated
that the first step was to identify the constitutional right at
issue. Because the Court had concluded that state action on the
basis of disability is not subject to heightened review, the con-
stitutional right at issue was the right to be free from irrational
employment discrimination based on disabilities.
But the Court concluded that Congress had failed to “iden-
tify a pattern of irrational state discrimination in employment
against the disabled.”83 The Court further noted that Congress
had not mentioned a pattern of state employment discrimina-
tion in the AdA’s legislative findings.84 In a footnote, it stated
that most of the anecdotes submitted to Congress’ task force
“pertain to alleged discrimination by the States in the provi-
sion of public services and public accommodations, which are
areas addressed in Titles II and III of the AdA.”85 And even
if the legislative record had been sufficient to show a pattern
of state violations, the Court concluded, the legislation was
not narrow enough and would unnecessarily cause hardships
80 See Hibbs, supra note 74.
81 Id., 538 U.S. at 736.
82 See Garrett, supra note 68.
83 Id., 531 U.S. at 368.
84 Garrett, supra note 68.
85 Id., 531 U.S. at 371 n.7.
516 	280 NeBRASkA RePoRTS

for businesses. In Kimel v. Florida Bd. of Regents,86 the Court
applied similar reasoning in concluding that Congress had not
validly abrogated sovereign immunity against age discrimina-
tion suits.
But in 2004, under title II of the AdA, the Court in Tennessee
v. Lane87 reached a different result in addressing Congress’
abrogation of states’ immunity. There, the plaintiffs, who were
wheelchair-dependent paraplegics, were denied physical access
to, and the services of, the state court system because of their
disability. The Court found title II was intended to prohibit
irrational disability discrimination. But the Court stated that
unlike title I, title II was intended to enforce a variety of other
constitutional guarantees, violations of which were subject
to heightened review. It concluded that “Congress enacted
Title II against a backdrop of pervasive unequal treatment in
the administration of state services and programs, including
systematic deprivations of fundamental rights.”88
The Court rejected the dissent’s position that “a valid exer-
cise of Congress’ § 5 power must always be predicated solely
on evidence of constitutional violations by the States them-
selves.”89 It stated that “evidence of constitutional violations
on the part of nonstate governmental actors is relevant to the
§ 5 inquiry.”90 Because title II was aimed at the enforcement
of basic rights that invoked heightened scrutiny, the Court
compared the rights at issue in Lane to those in an earlier case
in which it reviewed legislation aimed at sex discrimination in
the workplace.91 As noted, the Court had stated that it would
consider broader evidence of discrimination for legislation that
prohibits discrimination invoking heightened scrutiny.
In Lane, the Court considered a history of statutes, cases,
and anecdotes, collected by Congress’ task force, dealing with
86 See Kimel, supra note 74.
87 See Lane, supra note 66.
88 Id., 541 U.S. at 524.
89 Id., 541 U.S. at 527 n.16.
90 Id., 541 U.S. at 528 n.16.
91 See Hibbs, supra note 74.
doe v. BoARd oF RegeNTS 	517
Cite as 280 Neb. 492

access to judicial services and public services generally. But
much of the evidence was unrelated to access to courts. The
Court also considered evidence that showed disability discrimi-
nation in public services and programs such as “the penal sys-
tem, public education, and voting.”92 Finally, the Court stated
that Congress’ legislative findings in the AdA had found per-
sistent discrimination against persons with disabilities
“in such critical areas as . . . education, transportation,
communication, 	recreation, 	institutionalization, 	health
services, voting, and access to public services.” . . . This
finding, together with the extensive record of disability
discrimination that underlies it, makes clear beyond per-
adventure that inadequate provision of public services and
access to public facilities was an appropriate subject for
prophylactic legislation.93
In sum, for determining whether the congressional record
was sufficient to support prophylactic legislation, the Court
treated discrimination subject to rational basis review the
same as discrimination subject to heightened review because
Congress intended the legislation to address “systematic depri-
vations of fundamental rights.”94
But in considering whether the legislation was an appropriate
response to a pattern of unequal treatment, the Court explicitly
limited its reasoning and holding to whether “Congress had
the power under § 5 to enforce the constitutional right of
access to the courts.”95 In a footnote, it stated, “Because this
case implicates the right of access to the courts, we need not
consider whether Title II’s duty to accommodate exceeds what
the Constitution requires in the class of cases that implicate
only [the] prohibition on irrational discrimination.”96 It held
that “Title II, as it applies to the class of cases implicating
92 Lane, supra note 66, 541 U.S. at 525.
93 Id., 541 U.S. at 529 (emphasis omitted) (emphasis supplied). See, also, 42
U.S.C. § 12101(a)(3) (2006).
94 Lane, supra note 66, 541 U.S. at 524.
95 Id., 541 U.S. at 531.
96 Id., 541 U.S. at 532 n.20.
518 	280 NeBRASkA RePoRTS

the fundamental right of access to the courts, constitutes a
valid exercise of Congress’ § 5 authority to enforce the guar-
antees of the Fourteenth Amendment.”97 Accordingly, some
courts, including this court, limited Lane’s holding to situations
involving access to the courts.98
We addressed 11th Amendment immunity against a title II
claim in Keef v. State.99 There, handicapped parking permit-
holders brought a claim against the State, alleging that the
State’s $3 charge for a handicapped parking placard violated
title II of the AdA.100 In analyzing Lane, we held that Congress
did not validly abrogate 11th Amendment immunity as it
applies to suits for damages involving parking placard fees. We
concluded that “[t]he holding in Lane was limited by the Court
to when a fundamental right, such as access to the courts, is at
issue.”101 Furthermore, in addressing the congruence and pro-
portionality test, we determined that
abrogating 11th Amendment immunity under the AdA to
invalidate a fee for a parking placard is not congruent to
the specific findings of Congress, which were concerned
with denial of fundamental rights in providing public
services. Nor is the remedy proportional to those find-
ings when the fee appears to be a modest cost-recovery
measure and there is no evidence of animus toward
the class.102
97 Id., 541 U.S. at 533-34.
98 See, Lane, supra note 66; Keef, supra note 70. See, also, Bill M. ex rel
William M. v. Nebraska Dept. H.H.S., 408 F.3d 1096 (8th Cir. 2005) (cit-
ing Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999)), vacated
sub nom. United States v. Nebraska Dept. of HHS Finance and Support,
547 U.S. 1067, 126 S. Ct. 1826, 164 L. ed. 2d 514 (2006); Cochran v.
Pinchak, 401 F.3d 184 (3d Cir. 2005), vacated 412 F.3d 500; Miller v.
King, 384 F.3d 1248 (11th Cir. 2004), vacated and superseded 449 F.3d
1149 (11th Cir. 2006).
99 See Keef, supra note 70.
100 Id.
101 Id. at 746, 716 N.W.2d at 65.
102 Id. at 747-48, 716 N.W.2d at 66.
doe v. BoARd oF RegeNTS 	519
Cite as 280 Neb. 492

Although we recognized the U.S. Supreme Court’s 2006
decision in United States v. Georgia,103 we rejected the appel-
lants’ argument that this decision broadly abrogated sovereign
immunity for title II claims. In Georgia, the Court held that
Congress validly abrogated sovereign immunity regarding an
inmate’s title II claims to the extent that the claims also vio-
lated the 14th Amendment. And it remanded for the lower court
to determine whether Congress validly abrogated sovereign
immunity for his title II claims that did not independently vio-
late the 14th Amendment.
In Keef, we did not read Georgia as requiring us to consider
abrogation of sovereign immunity beyond title II claims involv-
ing fundamental rights. But we now conclude that the Supreme
Court has signaled to lower courts that Lane allows Congress a
broader scope of enforcement power for abrogating sovereign
immunity. Although we did not recognize its actions when
Keef was decided, the Court had signaled a broader application
of Lane by vacating several title II decisions and remanding
for reconsideration in the light of Lane.104 Most notably on
point, in one of those vacated decisions, the Sixth Circuit had
concluded that sovereign immunity barred a student’s title II
claim that university officials had not reasonably accommo-
dated her disability so that she could complete her master’s
103 United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877, 163 L. ed. 2d 650
(2006).
104 See, Klingler v. Director, Dept. of Revenue, State of Mo., 545 U.S. 1111,
125 S. Ct. 2899, 162 L. ed. 2d 291 (2005), vacating 366 F.3d 614 (8th
Cir. 2004); Columbia River Correctional Institute et al. v. Phiffer, 541
U.S. 1059, 124 S. Ct. 2386, 158 L. ed. 2d 960 (2004), vacating 63 Fed.
Appx. 335 (9th Cir. 2003); Parr v. Middle Tennessee State University et
al., 541 U.S. 1059, 124 S. Ct. 2386, 158 L. ed. 2d 960 (2004), vacating
Parr v. Middle Tennessee State University, 63 Fed. Appx. 874 (6th Cir.
2003); Rendon et al. v. Florida Department of Highway Safety and Motor
Vehicles et al., 541 U.S. 1059, 124 S. Ct. 2387, 158 L. ed. 2d 960 (2004),
vacating State v. Rendon, 832 So. 2d 141 (Fla. App. 2002); Spencer v.
Easter et al., 541 U.S. 1059, 124 S. Ct. 2386, 158 L. ed. 2d 960 (2004),
vacating U.S. v. Spencer, 63 Fed. Appx. 160 (4th Cir. 2003); Spencer v.
Easter, 109 Fed. Appx. 571 (4th Cir. 2004).
520 	280 NeBRASkA RePoRTS

degree program.105 We agree with the defendants that the right
to education is not a fundamental right.106 But we conclude
that the Supreme Court’s remands for reconsideration in light
of Lane require us to consider whether Congress nonetheless
validly abrogated sovereign immunity for AdA claims even if
the violation does not directly infringe upon a claimant’s fun-
damental right.
Moreover, since Lane, four federal appellate courts have
considered Congress’ abrogation of sovereign immunity for
title II claims of irrational disability discrimination in public
education. each court concluded that Congress has validly
abrogated sovereign immunity for such claims.107
The First and Third Circuits explicitly recognized that
because there is no fundamental right to education and indi-
viduals with disabilities are not a suspect class, the claimants
failed to show that the challenged conduct violated the 14th
Amendment under a rational basis review.108 But in determin-
ing whether title II was justified as a response to a pattern of
discrimination, three circuit courts have stated that the Court in
Lane broadly looked at the history of disability discrimination
as a whole and conclusively settled that “Title II was enacted in
response to a pattern of unconstitutional disability discrimina-
tion by States and nonstate government entities with respect to
the provision of public services.”109
In contrast, the First Circuit believed that the better approach
was to focus on the category of state conduct at issue. But it
105 See Parr v. Middle Tennessee State University, supra note 104, 63 Fed.
Appx. 874 (6th Cir. 2003).
106 See, generally, Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb.
278, 739 N.W.2d 742 (2007). See, also, San Antonio School District v.
Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. ed. 2d 16 (1973); Catlin v.
Sobol, 93 F.3d 1112 (2d Cir. 1996).
107 See, Bowers, supra note 79; Toledo, supra note 66; Constantine v. Rectors,
George Mason Univ., 411 F.3d 474 (4th Cir. 2005); Ass’n for Disabled
Americans, supra note 79.
108 See, Bowers, supra note 79; Toledo, supra note 66.
109 Constantine, supra note 107, 411 F.3d at 487. Accord, Bowers, supra note
79; Ass’n for Disabled Americans, supra note 79.
doe v. BoARd oF RegeNTS 	521
Cite as 280 Neb. 492

concluded that because Lane considered a broad class of dis-
ability discrimination, it should similarly consider Congress’
abrogation as a response to discrimination in public education
generally.110 It also determined that under Lane, the appro-
priate sources for determining whether there is a history of
widespread constitutional violations are state statutes, court
decisions, and examples from the AdA’s legislative history.
Reviewing those sources, the court concluded that despite the
enactment of the Rehabilitation Act, “the thirty years preced-
ing the enactment of the AdA evidence a widespread pattern of
states unconstitutionally excluding disabled children from pub-
lic education and irrationally discriminating against disabled
students within schools.”111
These cases illustrate that under Lane, courts need not
determine whether Congress identified a wide pattern of states’
irrationally discriminating against disabled students in public
education. Instead, judicial decisions, statutes, and personal
anecdotes collected by Congress’ task force112 indicating a gen-
eral history of discrimination in public education are sufficient
to support Congress’ prophylactic legislation.
The final issue under Lane is whether Title II creates rights
and remedies that are congruent and proportional to the con-
stitutional rights it purports to enforce and Congress’ record
of constitutional violations.113 This question must be answered
as applied to a pattern of unequal treatment in public educa-
tion. In deciding whether Congress’ response is congruent and
proportional, federal courts have generally asked what title II
requires and prohibits, what potential harm it prevents, and
how its requirements are ameliorated by its limitations.
Federal courts have stated that title II requires public schools
and universities to (1) make reasonable modifications to their
rules, policies, and practices to ensure that students with
110 See Toledo, supra note 66.
111 Id., 454 F.3d at 38-39.
112 See Garrett, supra note 68, appendix C.
113 See, e.g., Bowers, supra note 79; Ass’n for Disabled Americans, supra
note 79.
522 	280 NeBRASkA RePoRTS

disabilities can participate; and (2) remove accessibility barri-
ers.114 They have weighed these requirements against the poten-
tial harms that the AdA prevents.
Federal courts cite the important role education plays in
exercising fundamental rights such as voting and participating
in public programs and services.115 But they are also concerned
about the potential for hard-to-detect irrational disability dis-
crimination in public education:
In light of the long history of state discrimination
against students with disabilities, Congress reasonably
concluded that there was a substantial risk for future dis-
crimination. Title II’s prophylactic remedy acts to detect
and prevent discrimination against disabled students that
could otherwise go undiscovered and unremedied. By
prohibiting insubstantial reasons for denying accommoda-
tion to the disabled, Title II prevents invidious discrimi-
nation and unconstitutional treatment in the actions of
state officials exercising discretionary powers over dis-
abled students.116
Moreover, following Lane, federal courts have consistently
concluded that title II is a narrow remedy for discrimination
in education when they considered important limitations on
states’ duties to accommodate disabled students.117 First, title II
protects only qualified individuals with disabilities.118 Second,
“[s]tates retain their discretion to exclude persons from pro-
grams, services, or benefits for any lawful reason unconnected
with their disability.”119 Third, schools and universities can-
not be required “‘to undertake measures that would impose
an undue financial or administrative burden, threaten historic
114 See, Toledo, supra note 66; Constantine, supra note 107.
115 See, Toledo, supra note 66; Ass’n for Disabled Americans, supra note 79.
116 Ass’n for Disabled Americans, supra note 79, 405 F.3d at 959.
117 See, Bowers, supra note 79; Toledo, supra note 66; Constantine, supra
note 107; Ass’n for Disabled Americans, supra note 79.
118 See, Bowers, supra note 79; Constantine, supra note 107.
119 Ass’n for Disabled Americans, supra note 79, 405 F.3d at 959. Accord,
Bowers, supra note 79; Constantine, supra note 107.
doe v. BoARd oF RegeNTS 	523
Cite as 280 Neb. 492

preservation interests, or effect a fundamental alteration in the
nature of the service.’”120 Finally, title II “does not require pub-
lic schools and universities to accommodate disabled students
if the accommodation would substantially alter their programs
or lower academic standards, and courts give due deference to
the judgment of education officials on these matters.”121
In sum, federal courts have weighed the limitations on
the reasonable accommodation requirement against (1) the
important role that education plays in exercising fundamental
rights, such as voting and participating in public programs and
services; and (2) the potential for future discrimination. They
have concluded that title II’s prophylactic measures are justi-
fied and reasonably targeted to prevent “the persistent pattern
of exclusion and irrational treatment of disabled students in
public education, coupled with the gravity of the harm worked
by such discrimination.”122
[23] Because of the Supreme Court’s evolving jurisprudence
on this issue, we agree with these federal courts that Congress
has validly abrogated the State’s 11th Amendment immunity
regarding title II claims under the AdA when a plaintiff alleges
discrimination in public education. We conclude that the district
court erred in dismissing doe’s title II claim against the Board,
UNMC, and the UNMC faculty members for this reason.
(i) Doe’s Allegations Were Sufficient
to State a Title II Claim
Because the court determined that doe’s claim was barred
by the State’s 11th Amendment sovereign immunity, it did not
consider whether doe stated a valid title II claim. The defend-
ants argue that he did not. We disagree.
Remember, to prevail against a motion to dismiss for failure
to state a claim, a plaintiff must allege sufficient factual matter,
120 Toledo, supra note 66, 454 F.3d at 39, quoting Lane, supra note 66.
Accord, Bowers, supra note 79; Constantine, supra note 107.
121 Toledo, supra note 66, 454 F.3d at 40. Accord, Ass’n for Disabled
Americans, supra note 79; Constantine, supra note 107.
122 Toledo, supra note 66, 454 F.3d at 40. Accord Ass’n for Disabled
Americans, supra note 79.
524 	280 NeBRASkA RePoRTS

accepted as true, to state a claim to relief that is plausible on its
face. In making this determination, we accept all factual allega-
tions in the complaint as true and give the plaintiff the benefit
of all reasonable inferences.
[24] A plaintiff seeking recovery for a title II violation
under the AdA must allege the following: (1) The plaintiff has
a disability; (2) the plaintiff is otherwise qualified to receive
the benefits of a public service, program, or activity; and (3)
the defendants excluded the plaintiff from participation in or
denied the plaintiff the benefits of such service, program, or
activity or otherwise discriminated against the plaintiff because
of his or her disability.123 A plaintiff is “qualified” if he or she
is “an individual with a disability who, with or without reason-
able modifications to rules, policies, or practices, . . . meets the
essential eligibility requirements for the receipt of services or
the participation in programs or activities provided by a pub-
lic entity.”124
doe alleged that he suffers from major depressive disorder
that interfered with one or more major life functions. He did
not specifically allege that he sought an accommodation or that
an accommodation would have allowed him to successfully
complete medical school. But he did allege that he talked to
Hill about the deterioration of his mental condition and that
he requested psychiatric treatment during his family medicine
clerkship. These allegations are sufficient to plausibly show
the “reasonable accommodation” element of his claim: i.e.,
that his treatment was a reasonable accommodation which, if
honored, would have permitted him to successfully complete
medical school. And he has alleged that on other occasions
also, he was treated differently from other students. He spe-
cifically claimed that these allegations showed that he was
discriminated against because of his disability. Accepting his
allegations as true and giving him the benefit of all reasonable
inferences, we conclude that his allegations were sufficient to
state a title II claim.
123 See Constantine, supra note 107. Accord Bowers, supra note 79.
124 42 U.S.C. § 12131(2).
doe v. BoARd oF RegeNTS 	525
Cite as 280 Neb. 492

[25] We note that our analysis has been shaped by our
response to the district court’s order. In general, however,
courts should follow the Supreme Court’s analytical framework
set out in Georgia for determining abrogation of sovereign
immunity in title II claims under the AdA.125 There, the Court
remanded for the lower courts to determine three things in the
following order:
(1) which aspects of the State’s alleged conduct violated
Title II; (2) to what extent such misconduct also violated
the Fourteenth Amendment; and (3) insofar as such mis-
conduct violated Title II but did not violate the Fourteenth
Amendment, whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is never-
theless valid.126
For some claims, this framework will avoid unnecessary abro-
gation analysis. Under Georgia, if a plaintiff alleges irrational
disability discrimination but not failure to make reasonable
accommodations, Congress has unquestionably abrogated sov-
ereign immunity for claims that allege conduct prohibited by
the 14th Amendment.
(b) Rehabilitation Act
doe alleged that the defendants violated § 504 of the
Rehabilitation Act. It provides that “[n]o otherwise quali-
fied individual with a disability . . . shall, solely by reason
of her or his disability . . . be denied the benefits of, or be
subjected to discrimination under[,] any program or activity
receiving Federal financial assistance . . . .”127 Section 504
applies to postgraduate education programs that receive or
benefit from Federal financial assistance.128 The defendants
concede that the district court incorrectly determined that they
have immunity under § 504 of the Rehabilitation Act.129 But
125 See Georgia, supra note 103.
126 Id., 546 U.S. at 159.
127 29 U.S.C. § 794(a).
128 See id.
129 See Doe v. Nebraska, 345 F.3d 593 (8th Cir. 2003).
526 	280 NeBRASkA RePoRTS

they contend that doe has not stated a valid claim under the
Rehabilitation Act.
Section 504 does not require an educational institution to
lower its standards for a professional degree, for example,
by eliminating or substantially modifying its clinical training
requirements.130 “An otherwise qualified person is one who
is able to meet all of a program’s requirements in spite of his
handicap.”131 To avoid dismissal of his complaint, doe must
allege that he was disabled, otherwise qualified, and dismissed
solely because of his disability.132
doe alleges that he has been diagnosed with major depres-
sive disorder, chronic and recurrent, in acute exacerbation.
He alleges that he suffers from substantial limitations that
include learning, thinking, concentrating, and sleeping. He fur-
ther alleges that his condition makes him an “individual with a
disability” as defined by the Rehabilitation Act.133 So, as pled
in his complaint, doe appears to meet the first condition.
doe does not specifically allege that despite his disability
he was otherwise qualified to continue in medical school or
that he was dismissed solely because of his disability. But, as
previously mentioned, doe alleged that he requested psychiat-
ric treatment during his family medicine clerkship. giving him
the benefit of all inferences, his allegations, as a whole, are
sufficient to plausibly support the “otherwise qualified” ele-
ment of his claim: i.e., that had his request been honored, he
would have successfully completed medical school. doe also
alleges that after he informed his professors of his disability,
he received discriminatory evaluations. Furthermore, he also
alleges that he was dismissed because of the discriminatory
evaluations and, as such, that he was dismissed because of
his disability. Again, giving doe the benefit of all reasonable
130 See Falcone v. University of Minn., 388 F.3d 656 (8th Cir. 2004).
131 Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct.
2361, 60 L. ed. 2d 980 (1979). See, also, 45 C.F.R. § 84.44(a) (2009).
132 See, Falcone, supra note 130; Jeseritz v. Potter, 282 F.3d 542 (8th Cir.
2002).
133 29 U.S.C. § 794(a). See, also, Constantine, supra note 107.
doe v. BoARd oF RegeNTS 	527
Cite as 280 Neb. 492

inferences, we conclude that these allegations are sufficient to
plausibly support a claim that he was dismissed solely because
of his disability.
6. due process violations
doe’s third and fourth claims allege that the defendants
violated his substantive and procedural due process rights.
Because of the principles of sovereign immunity involved, we
will address separately doe’s claims against the Board, UNMC,
and the UNMC faculty members in their official capacities.
(a) Board and UNMC
The Board and UNMC contend that because they are agen-
cies of the State, both 11th Amendment immunity and state
sovereign immunity bar suit against them by private citizens
for any kind of relief.
As discussed, whether the Board and UNMC have 11th
Amendment immunity depends upon whether they are arms
of the State. Federal courts generally consider state universi-
ties arms of the state,134 and the eighth Circuit has specifically
held that the University of Nebraska and its instrumentalities
are arms of the State for purposes of the 11th Amendment.135
And the Board and UNMC are state agencies entitled to state
sovereign immunity.136 We conclude that the district court
properly dismissed doe’s due process claims against the Board
and UNMC.
(b) UNMC Faculty Members in Their
official Capacities
The 11th Amendment does not bar doe’s due process claims
against state officials for prospective injunctive relief.137 And
state sovereign immunity does not bar an action against state
officials to compel them to perform an action they are lawfully
134 See 13 Wright et al., supra note 37, § 3524.2.
135 See Becker v. University of Nebraska at Omaha, 191 F.3d 904 (8th Cir.
1999).
136 See Catania, supra note 51.
137 See, Verizon Md. Inc., supra note 49; Alden, supra note 46.
528 	280 NeBRASkA RePoRTS

required to do if that action would not require them to expend
public funds. doe argues that as a medical student, he had
both a liberty and a property interest in completing his medi-
cal education, and that the defendants deprived him of those
interests. He further argues that the defendants denied him the
opportunity to be heard on all issues involving his dismissal
from medical school.
[26] due process principles protect individuals from arbi-
trary deprivation of life, liberty, or property without due proc-
ess of law.138 Whether a student who is subject to academic
dismissal has a cause of action for the violation of his or her
right to substantive due process remains an open question.139
The U.S. Supreme Court has not held that pursuit of a post-
secondary medical school education rises to a constitutionally
protected interest.140 Nor has it held that postsecondary edu-
cation rises to a fundamental right.141 In San Antonio School
District v. Rodriguez,142 the Court expressly declined the invita-
tion to hold that education is a fundamental right under the due
Process Clause. The Court stated that education is “not among
the rights afforded explicit protection” under the Constitution
and that it could not “find any basis for saying it is implicitly
so protected.”143
Assuming that doe has a liberty interest in his medical
school education, the interest is not fundamental.144 So, doe
has to show the UNMC faculty members acted arbitrarily or
capriciously. He must show that the UNMC faculty members
had no rational basis for their decision or that they dismissed
him because of bad faith or ill will unrelated to academic
138 See Rodriguez, supra note 106.
139 See Regents of University of Michigan v. Ewing, 474 U.S. 214, 106 S. Ct.
507, 88 L. ed. 2d 523 (1985).
140 Id.; Galdikas v. Fagan, 342 F.3d 684 (7th Cir. 2003), abrogated on other
grounds, Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004).
141 See Rodriguez, supra note 106.
142 Id.
143 Id., 411 U.S. at 35.
144 Id.
doe v. BoARd oF RegeNTS 	529
Cite as 280 Neb. 492

performance.145 “In the absence of some evidence of arbitrary
behavior or bad faith, courts will not substitute their judgment
for the necessarily discretionary judgment of a school or uni-
versity as to a student’s educational performance.”146
Here, doe’s complaint shows that he earned a near-failing
grade in one clerkship and failed two other clerkships. The
evaluation committee informed him that it was concerned about
his academic performance and his ability to conduct himself
in a professional manner. He was required to sign a contract
informing him of the evaluation committee’s concerns, and
because he violated the terms of the contract, he was dismissed.
We cannot say that his dismissal lacked a rational basis.
[27] But doe also alleges that the defendants violated his
right to procedural due process. Specifically, he alleges that the
defendants violated his procedural due process rights during
the proceedings that led to his dismissal. A plaintiff asserting
the inadequacy of procedural due process must first establish
that the government deprived him or her of interests which
constitute “liberty” or “property” interests within the meaning
of the due Process Clause.147 As stated before, if doe’s dis-
missal did deprive him of a liberty interest, we conclude that
the defendants provided him with as much process as the 14th
Amendment requires.
The U.S. Supreme Court has considered the quantum of due
process owed by a state-run university to a dismissed medical
student.148 The Court distinguished between dismissals from
educational institutions based on an “[a]cademic” rationale and
those that may properly be characterized as “disciplinary.”149
The Court held that the dismissal of the medical student in
145 Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 98 S. Ct. 948,
55 L. ed. 2d 124 (1978); Schuler v. University of Minnesota, 788 F.2d 510
(8th Cir. 1986).
146 State ex rel. Mercurio v. Board of Regents, 213 Neb. 251, 258, 329 N.W.2d
87, 92 (1983).
147 Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. ed. 2d 548
(1972); Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001).
148 Horowitz, supra note 145.
149 Id., 435 U.S. at 89.
530 	280 NeBRASkA RePoRTS

Board of Curators, Univ. of Mo. v. Horowitz150 was “academic”
rather than “disciplinary.” The dismissal “rested on the aca-
demic judgment of school officials that [the student] did not
have the necessary clinical ability to perform adequately as a
medical doctor.”151 The Court further noted that an academic
dismissal involves “a school’s determination of whether a
student will make a good medical doctor.”152 It stated that the
school’s consideration of a student’s personal attributes may
permissibly factor into this “academic” decision.153
We conclude that doe’s dismissal falls within the ambit of
an academic dismissal. doe acknowledged that he received a
marginal grade in his pediatrics clerkship and failing grades in
his obstetrics and gynecological clerkship and internal medi-
cine clerkship. He also acknowledges that he received poor
professionalism marks from one of his surgery clerkship pro-
fessors. He does, however, allege that the professionalism
evaluation was discriminatory and made in bad faith using
information doe provided to his professors about his disability.
But doe was clearly aware of the defendants’ dissatisfaction
with his academic performance, and he was given numerous
opportunities to discuss these issues with the defendants. He
was also aware of the professionalism clause of the academic
contract that he signed to remain in medical school and aware
that he could be dismissed from medical school if a professor
gave him an unsatisfactory professionalism grade.
[28] As in Horowitz, this represents an academic judgment
by school officials, officials that have expertise in evaluating
whether doe possessed the attributes necessary to adequately
perform his clinical duties as a medical student.154 In short, the
record showed academic justification for doe’s dismissal. And,
as discussed by the Court in Horowitz, procedural due process
does not require a hearing, either before or after a dismissal
150 Id., 435 U.S. at 89-90.
151 Id.
152 Id., 435 U.S. at 91 n.6.
153 Id.
154 See Horowitz, supra note 145.
doe v. BoARd oF RegeNTS 	531
Cite as 280 Neb. 492

decision. For academic dismissals, due process is satisfied if
the student was informed of the nature of the faculty’s dissat-
isfaction and the potential for dismissal and if the decision to
dismiss was careful and deliberate.155
Here, doe plainly received adequate procedural due process.
The UNMC faculty members allowed him to appeal his grades,
and he was made aware of all the conditions in the academic
contract that he signed, specifically the professionalism clause.
He also received a postdismissal hearing before an academic
committee and a subsequent administrative appeal. The dis-
trict court properly dismissed doe’s claims of substantive and
procedural due process violations against the UNMC faculty
members in their official capacities.
7. Breach of contract
In doe’s final claim, he alleged breach of contract. He did
not, however, identify or provide the district court with a con-
tract outlining the obligation breached. He alleges only that the
Board’s bylaws, which he claims provide an appeal procedure
for academic evaluations, created an implicit contract between
him and the Board, UNMC, and the UNMC faculty members
in their official capacities. And, he claims, the defendants
breached the alleged contract by not following the procedure
and by discriminating against him based on his disability.
even though doe frames his claim as a breach of contract
claim, he does not articulate a theory for breach of contract
separate from his due process claims. He claims, generally, that
the UNMC faculty members failed to follow a set procedure
for grade appeals. But doe admits that he appealed some of his
grades and that he appealed his dismissal to the appeals board
and to the dean of the medical school. So clearly, the defend-
ants provided him the opportunity to discuss his concerns and
appeal his dismissal. To the extent that his contract claim does
not differ from his due process claim, it is also without merit.
And because doe has failed to point to an identifiable con-
tractual promise that the defendants did not honor, he has not
alleged a contract claim that plausibly entitles him to relief.
155 Id.
532 	280 NeBRASkA RePoRTS

The district court did not err in dismissing doe’s breach of
contract claim.
VI. CoNCLUSIoN
We conclude that the district court erred in dismissing doe’s
lawsuit against the UNMC faculty members in their individual
capacities without determining whether service by certified
mail at UNMC’s risk management office was reasonably cal-
culated to notify the defendants, in their individual capacities,
of the lawsuit.
Regarding the remaining defendants—the Board, UNMC,
and the UNMC faculty members in their official capacities—
we conclude that doe’s claims of fraudulent concealment,
violations of his due process rights, and breach of contract
fail to state a claim for relief that is plausible on its face. But
regarding his claims under the AdA and the Rehabilitation Act,
we find that the district court erred in dismissing the claims
against the Board, UNMC, and the UNMC faculty members in
their official capacities.
affirmed in part, and in part reversed and
remanded for further proceedings.
stephan, J., not participating.
CeNTRAL NeB. PUB. PoWeR dIST. v. NoRTH PLATTe NRd 	533
Cite as 280 Neb. 533
the central neBraska puBlic poWer and irrigation
district, a puBlic corporation and political suBdivision of
the state of neBraska , appellant and cross -appellee ,
v. north platte natural resources district,
a political suBdivision of the state of
neBraska , appellee and cross -appellant.
788 N.W.2d 252
Filed August 27, 2010. 	No. S-09-727.
1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district
court’s order granting a motion to dismiss de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal
order, an appellate court accepts as true all the facts which are well pled and the
proper and reasonable inferences of law and fact which may be drawn therefrom,
but not the pleader’s conclusions.