Sheila J. Bell v. Ohio State University

*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0434P (6th Cir.)
File Name: 03a0434p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHEILA J. BELL,
Plaintiff-Appellant,
v.
OHIO STATE UNIVERSITY, et
al.,
Defendants-Appellees.
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No. 02-3293
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-01274—Edmund A. Sargus, Jr., District Judge.
Argued: August 8, 2003
Decided and Filed: December 9, 2003
Before: BATCHELDER and ROGERS, Circuit Judges;
RUSSELL, District Judge.*
2 Bell v. Ohio State University, et al. No. 02-3293
_________________
COUNSEL
ARGUED: Erik G. Chappell, LYDEN, LIEBENTHAL &
CHAPPELL, Toledo, Ohio, for Appellant. Craig R. Carlson,
PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,
Ohio, for Appellees. ON BRIEF: Erik G. Chappell,
LYDEN, LIEBENTHAL & CHAPPELL, Toledo, Ohio, for
Appellant. Craig R. Carlson, David S. Bloomfield, Jr.,
PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,
Ohio, for Appellees.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Sheila Bell
appeals from the district court’s order granting summary
judgment to the defendants in their individual capacities on
Ms. Bell’s claims, brought under 42 U.S.C. §§ 1981 and
1983, that during her enrollment in, and ultimately her
dismissal from, the Ohio State University College of
Medicine, the defendants denied her due process and equal
protection and discriminated against her because of her race
and gender. The district court held that those claims which
arose prior to July 6, 1996, were barred by the statute of
limitations; that Ms. Bell had failed to present any evidence
to support either a substantive or procedural due process
claim; that Ms. Bell had neither stated an equal protection
claim nor provided evidence to support such a claim; and that
Ms. Bell had failed to make out a prima facie case of a
violation of Section 1981, and, alternatively, that she had
wholly failed to counter the defendants’ evidence that she was
dismissed from the College of Medicine for purely academic
reasons. We affirm the judgment of the district court,
although with different reasoning as to some of the claims.

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No. 02-3293 Bell v. Ohio State University, et al. 3
Factual Background
Sheila Bell is an African-American woman, who was
admitted to the Ohio State University College of Medicine
(“the medical school”) in the fall of 1987. Although the
parties are not in complete agreement about Ms. Bell’s
performance with regard to completing the requirements of
the first two years of medical school, the essential facts are
not genuinely in dispute. Ms. Bell started out in the
Independent Study Program (“ISP”), where she had
considerable academic difficulty and was warned that she was
in danger of failing “Med Coll 662,” which she was required
to pass in order to advance to the second year of medical
school. She was advised to transfer into the more traditional
Lecture and Discussion Program (“LDP”), but she refused to
do so and was permitted to continue in the ISP. Ms. Bell
failed “Med Coll 662" and was permitted to repeat that course
work in the LDP program; she then successfully completed
her first year and moved on to her second year in the LDP
program. Ms. Bell continued to have academic difficulty, and
ultimately she was required to retake her second year. In June
of 1992, after successfully completing her second year course
work, she retook Part 1 of the national medical licensing
examination (“the Boards”), which she had taken but had not
passed during her first year of medical school; she did not,
however, have her scores from Part 1 sent to the medical
school. In August 1992, the medical school instituted a new
requirement that students pass Parts 1 and 2 of the Boards
before advancing to the third year curriculum, but because
that requirement had not been in place when she entered
medical school, Ms. Bell asked for and was granted
permission to proceed to her third year of study without
passing Parts 1 and 2 of the Boards.
Ms. Bell’s problems continued through her third year of
medical school, and again, the material facts are not genuinely
disputed. In July and August of 1993, Ms. Bell took an
Internal Medicine rotation at the Cleveland Clinic. Ms. Bell
did not appear for her final written and clinical examinations
4 Bell v. Ohio State University, et al. No. 02-3293
in the Internal Medicine program on August 27. Although
Ms. Bell claimed at the time and continues to claim that she
was too ill to take the exams, she does not dispute that she did
not seek medical attention, or that she was not excused from
appearing for the exams, either by anyone in the medical
school in Columbus or at the Cleveland Clinic. Ms. Bell was
not permitted to take the exams at a later date, but was told
that she must repeat the two-month rotation before she would
be allowed to take either the final written exam or the clinical
exam; and she received an unsatisfactory grade for the
rotation, in part because she failed to take the exams. She
appealed her unsatisfactory grade to the Internal Medicine
Evaluation Committee, which denied the appeal and required
as remediation for the missed exams that Ms. Bell repeat one
month—rather than two—of internal medicine rotation and
take the clinical and written exams. Ms. Bell appealed this
decision in turn to the Internal Medicine Appeals Committee,
the Med III-IV Committee and the Student Progress
Committee, each of which recommended that the appeal be
denied.
While these appeals were pending, Ms. Bell was advised
that she had received an “incomplete” for a rotation in
Clinical Pediatrics in September and October of 1993, and
that she would have six months to rewrite and resubmit her
paper for that course. Also during this time period, Ms. Bell
requested and received permission from the administrative
assistant to the Med III-IV Committee to schedule a one-
month internal medicine rotation at Mt. Carmel Hospital. She
did not, however, advise the assistant that she intended this
rotation to fulfill the remediation requirement for internal
medicine. After she had completed the rotation in April 1994
Ms. Bell learned that because the medical school required that
the remediation rotation be a “core” rotation at an Ohio State
University Hospital, rather than an “elective” rotation at
another hospital, the Mt. Carmel rotation did not satisfy the
remediation requirement.

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No. 02-3293 Bell v. Ohio State University, et al. 5
On May 25, 1994, the Clinical Academic Standing
Committee sent Ms. Bell a letter advising her that she would
not be permitted to graduate in June 1994. That letter further
advised:
The following issues must be resolved before you can be
reconsidered for certification for graduation:
1. Successful passage and release of scores for
USMLE, Step 2.
2. Release of scores for USMLE, Step 1.
3. Successful remediation of the core Internal
Medicine rotation and exams as outlined by the
department.
4. Successful resolution of Anesthesia elective or
completion of another clinical rotation
(awaiting grade).
The earliest date you would be eligible to graduate would
be at the end of Autumn Quarter.
At some point during May 1994, in response to Ms. Bell’s
inquiry, the administrative assistant to the Med III-IV
Committee told Ms. Bell that although she would not be
eligible to participate in the June graduation ceremony, she
would be permitted to participate in the convocation
ceremony. Ms. Bell was not, however, permitted to
participate in the convocation, although she apparently did
not receive the letter from the medical school advising her of
that until after the ceremony.
During the summer of 1994, Ms. Bell complained to
various officials at the Ohio State University, including the
University Provost, that the College had not properly handled
her appeals with regard to the internal medicine rotation
requirement. On September 2, 1994, the Provost issued his
report, stating first that his office did not have the authority to
review the appeals, but nonetheless advising Ms. Bell that his
review of her case resulted in his conclusion that the review
process within the Medical College had been “fair and
forthright.” He further noted that her complaint had been
6 Bell v. Ohio State University, et al. No. 02-3293
“reviewed by faculty committees at several levels and the
outcome has always been the same.” Ms. Bell did not pursue
any further attempt to complete the requirements for
graduation during the summer of 1994, and from September
1994 until June 1995, she was in Africa doing missionary
work. During that period, she learned that she had been
withdrawn from the medical school, but that she could apply
for reinstatement. She did so, and on May 28, 1996, the
medical school sent her a letter advising that her petition for
reinstatement had been granted and further advising that:
Your readmission is subject to the following conditions:
1) You must meet the current cognitive and non-
cognitive standards of the College of Medicine,
including passage of Step 1 and Step 2 of the
USMLE.
2) You must meet all curricular requirements
established by the Clinical Academic Standing
Committee.
3) You will be granted an exemption from the
College’s Six-Year Rule until 7/31/97.
4) You must meet all the above requirements by July
31, 1997 or be subject to final dismissal from the
College of Medicine.
This letter also instructed Ms. Bell to contact the Associate
Dean for Student Affairs in order to resume her studies. Ms.
Bell contacted the Associate Dean, but was unhappy with his
instruction that she would need to complete at least one
month of an internal medicine rotation. Ms. Bell expressed
her dissatisfaction in a letter to the Dean of the Medical
College, dated June 14, 1996, complaining that she had been
denied due process during the 1994 appeals process, that she
had satisfied the internal medicine rotation requirement, that
but for the “lack of due process, general unfairness and
harassment,” she would have received her medical degree
long since, and that unless the medical school corrected the
problem, she would have no choice but to file a lawsuit.

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No. 02-3293 Bell v. Ohio State University, et al. 7
Ms. Bell’s threat of litigation did not have the desired
effect, and the Clinical Academic Standing Committee
advised her on September 9, 1996, that, if she wanted to
continue her studies, she would be required to do one month
of internal medicine at the Ohio State University Medical
Center and to take and pass the clinical exam and the written
final exam by June 30, 1997. Ms. Bell complied with neither
of these requirements, and the Med III-IV Student Review
Subcommittee recommended to the Clinical Academic
Standing Committee that Ms. Bell be dismissed from the
medical school. On October 24, 1997—after a meeting which
in which Ms. Bell participated—the Clinical Academic
Standing Committee recommended that she be dismissed for
failure to complete the conditions to which her reinstatement
was subject, including her failure to complete the internal
medicine rotation and to take the exams. Ms. Bell was
notified of the Committee’s recommendation by letter dated
October 27, 1997. The Committee’s recommendation was
reviewed by the Academic Review Board at a meeting which
Ms. Bell attended and in which she was given the opportunity
to present information. The Academic Review Board found
that both the Student Review Subcommittee and the Clinical
Academic Standing Committee had conducted their
proceedings in accordance with the policies and procedures of
the Medical College, and that the results of the Board’s
review and the recommendations of the Committees would be
forwarded to the Dean. After review of all of the
proceedings, the Dean notified Ms. Bell by letter dated
December 24, 1997, that she had been dismissed from the
Medical College and that she was not eligible for future
reinstatement.
Ms. Bell filed suit against the defendants on July 6, 1998,
in the United States District Court for the Eastern District of
Michigan. That action was dismissed without prejudice for
lack of subject matter jurisdiction. On December 17, 1998,
Ms. Bell filed this action against Ohio State University, its
Board of Trustees, the Ohio State University College of
Medicine, and numerous officials and administrators of the
8 Bell v. Ohio State University, et al. No. 02-3293
University and the College of Medicine in both their official
and their individual capacities. The complaint claimed that
the plaintiff has both a property interest and a liberty interest
in her continued enrollment in the Medical College, and that
the defendants had deprived her of those interests without due
process and had denied her equal protection of the law, in
violation of the Fifth and Fourteenth Amendments and the
Ohio Constitution; had deprived her and conspired to deprive
her of her rights on the basis of her race and gender in
violation of 42 U.S.C. §§ 1981, 1983, 1985 and 1986; and
had intentionally inflicted emotional distress and damaged her
reputation and had intentionally breached “their contractual
agreement to provide Plaintiff with a Doctor of Medicine
Degree,” in violation of Ohio law. The Complaint sought
both monetary damages and injunctive relief.
The district court granted the defendants’ motion to dismiss
Ms. Bell’s state law claims and her claims brought under
42 U.S.C. §§ 1985 and 1986. The district court then granted
the defendants’ motion for summary judgment on the claims
brought under 42 U.S.C. §§ 1981 and 1983, holding that all
the official capacity claims were barred by the Eleventh
Amendment and that the claims against the defendants in
their official capacities were either barred by the statute of
limitations, unsupported by any evidence or wholly without
merit. Ms. Bell now appeals from those portions of the
district court’s orders that granted summary judgment to the
individual defendants on the Section 1981 and 1983 claims.
She does not appeal the dismissal of the state law claims or
the Section 1985 and 1986 claims, or the judgment dismissing
the official capacity claims on the basis of the Eleventh
Amendment.
Analysis
Standard of Review
We review de novo a district court’s grant of summary
judgment, using the same standard under Rule 56(c) used by

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No. 02-3293 Bell v. Ohio State University, et al. 9
the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th
Cir. 1999) (en banc). We must view the evidence, all facts,
and any inferences that may be drawn from the facts in the
light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c). To withstand summary judgment, the non-
movant must show sufficient evidence to create a genuine
issue of material fact. Klepper v. First Am. Bank, 916 F.2d
337, 341 (6th Cir. 1990). A mere scintilla of evidence is
insufficient; “there must be evidence on which the jury could
reasonably find for the [non-movant].” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). Entry of summary
judgment is appropriate “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
Statute of Limitations
Ms. Bell contends that the district court erred in holding
that to the extent that her Section 1981 and 1983 claims are
based on events that occurred more than two years before she
filed her first lawsuit, they are barred by the statute of
limitations. Ms. Bell does not argue that the court applied an
erroneous statute of limitations, but rather that the court erred
in holding that the “continuing violations theory” is
inapplicable to this case.
The date on which the statute of limitations begins to run
in a § 1983 action is a question of federal law. Sevier v.
Turner, 742 F.2d. 262, 272 (6th Cir. 1984). Ordinarily,
the limitations period starts to run “when the plaintiff
knows or has reason to know of the injury which is the
10 Bell v. Ohio State University, et al. No. 02-3293
basis of his action.” Id. at 273. “In determining when the
cause of action accrues in section 1983 actions, we have
looked to what event should have alerted the typical lay
person to protect his or her rights.” Dixon v. Anderson,
928 F.2d 212, 215 (6th Cir. 1991).
Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520
(6th Cir. 1997). The exceptions to that rule are two: where
the plaintiff can show prior discriminatory activity that
continues into the present, as opposed to prior discriminatory
activity whose effects continue into the present, see Tolbert
v. State of Ohio Dept. of Transp., 172 F.3d 934, 940 (6th Cir.
1999); and where the plaintiff can show “a longstanding and
demonstrable policy of discrimination.” Dixon, 928 F.2d at
217. Ms. Bell contends that she has presented evidence
sufficient to require the application of both of these
“continuing violation” exceptions.
In Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002), a Title VII action, the Court addressed the first of the
two types of continuing violation, namely, the prior
discriminatory activity that continued into the present. The
Court held that while the continuing violation doctrine applies
in hostile environment Title VII discrimination actions, it
does not permit recovery for discrete acts of discrimination
that occurred outside the statutory period. Id. at 113. That
reasoning, this court recently held, applies to claims brought
under Section 1983. Sharpe v. Cureton, 319 F.3d 259, 267
(6th Cir. 2003) (“We can find no principled basis upon which
to restrict Morgan to Title VII claims, and we therefore
conclude that the Supreme Court’s reasoning must be applied
to the firefighters’ § 1983 claims.”) We noted in Sharpe that
Morgan does not implicate the second continuing violation
exception, involving a longstanding policy of discrimination.
Id. at 268.
Here, we conclude that all of the allegedly unconstitutional
and discriminatory actions that took place prior to July 6,
1996, are discrete acts of which Ms. Bell was immediately

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No. 02-3293 Bell v. Ohio State University, et al. 11
aware when they occurred, and Ms. Bell has presented no
evidence of a longstanding policy of discrimination. We
hold, therefore, that all of the Section 1983 claims based on
events prior to July 6, 1996, are time-barred.
This circuit has not addressed the question of whether the
reasoning of Morgan and Sharpe extends to discrimination
claims brought under Section 1981. And, although Ms. Bell
does not distinguish between her Section 1983 and 1981
claims with regard to the statute of limitations, this circuit has
recently held that the presumptive four-year statute of
limitations of 28 U.S.C. § 1658 applies to Section 1981
actions “premised upon alleged discriminatory actions
occurring after the formation of the employment
relationship.” Anthony v. BTR Auto. Sealing Sys., 339 F.3d
506, 514 (6th Cir. 2003). This latter issue, we note, is
currently before the Supreme Court in Jones v. R.R.
Donnelley & Sons Co., 305 F.3d 717 (7th Cir. 2002), cert.
granted 123 S. Ct. 2074 (May 19, 2003). We conclude,
however, that it is unnecessary to decide whether the
continuing violations exception applies to Ms. Bell’s Section
1981 claim, because, as we will more fully explain below,
Ms. Bell has wholly failed to provide any evidence to support
her Section 1981 claim, regardless of when it accrued.
The Remaining Section 1983 Claims
In order to state a claim under Section 1983, a plaintiff
must allege the deprivation of a constitutional right caused by
a person acting under color of state law. Black v. Barberton
Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). In order
to survive a motion for summary judgment, a plaintiff must
present evidence sufficient to raise a genuine issue of fact
material to her claim. Klepper, 916 F.2d at 341-42. Ms. Bell
claims that she has both a property interest and a liberty
interest in her continued enrollment at the medical school, and
that the defendants’ conduct unconstitutionally deprived her
of both.
12 Bell v. Ohio State University, et al. No. 02-3293
The undisputed facts establish that on May 9, 1995, Ms.
Bell was involuntarily withdrawn from the medical school;
that on May 28, 1996, her petition for reinstatement was
granted subject to very specific conditions; and that on
June 14, 1996, Ms. Bell objected to the terms of her
reinstatement and threatened litigation. Ms. Bell did not
comply with any of the required conditions of her
reinstatement, and on December 24, 1997, after medical
school academic committees at several levels reviewed her
failure to comply with those requirements, the medical school
dismissed Ms. Bell because of that failure. The issue before
us is whether Ms. Bell has presented evidence sufficient to
permit a jury to conclude that after July 6, 1996, in
performing that review and in ultimately dismissing her, any
or all of the defendants discriminated against her because of
her race or gender, or deprived her of due process, either
procedural or substantive, or denied her the equal protection
of the law. We hold that she has not.
1. Procedural Due Process
“Because property interests are creatures of state law,
[plaintiff] would have been required to show at trial that her
seat at the Medical School was a ‘property’ interest
recognized by [] state law.” United States v. Horowitz, 435
U.S. 78, 82 (1978) (citations omitted). Ms. Bell gives us little
to go on here. She points us generally to The Student
Handbook and The Student Handbook Supplement for
support for her belief that she had a property interest in her
continued medical education at the medical school, but she
cites to no particular provision of those handbooks. As
further support for this proposition, she cites the deposition
testimony of Dr. Kantor, an Associate Dean of the Medical
College during some of the period when Ms. Bell was a
student there: “. . . and it has always been the policy of the
college, that once you’re in, we try everything we can to help
you pass and succeed.”

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No. 02-3293 Bell v. Ohio State University, et al. 13
Assuming, however, for the purposes of this summary
judgment motion, that Ms. Bell does have such an interest, we
hold that Ms. Bell has not presented any evidence that the
defendants denied her procedural due process in reviewing
her failure to comply with the conditions of her reinstatement
or in dismissing her because of that failure. To the contrary,
all of the evidence in this case demonstrates that, like the
plaintiff in Horowitz (where the Supreme Court assumed
without deciding that the plaintiff had a property interest in
her medical school enrollment), Ms. Bell received “at least as
much due process as the Fourteenth Amendment requires.”
Id. at 85. As was the case in Horowitz, the administration of
the medical school advised Ms. Bell fully of her failures,
explained the consequences, and “the ultimate decision to
dismiss [plaintiff] was careful and deliberate.” Id. Indeed, in
Bell’s case, medical school committees on at least three levels
reviewed her failure to comply with the requirements upon
which her readmission was explicitly conditioned, and she
was given the opportunity to participate in at least two of
those committees’ reviews. The Fourteenth Amendment
requires nothing more.
2. Substantive Due Process
Ms. Bell contends that she has a both a property interest
and a liberty interest in continued enrollment in the Medical
College; that those interests are subject to the protections of
substantive due process; and that the actions of the defendants
deprived her of those interests and denied her that protection.
As we understand the argument she presents in her brief, Ms.
Bell’s principal contention is that she was arbitrarily and
unfairly dealt with in 1994 with regard to both the medical
school’s insistence that she fulfill a remediation requirement
after receiving an unsatisfactory grade for her internal
medicine rotation, and the school’s refusal to permit her to
graduate because she had not fulfilled the remediation
requirement. These matters are, as we have already held,
outside the period of the statute of limitations. To the extent
that Ms. Bell complains of any actions of the defendants that
14 Bell v. Ohio State University, et al. No. 02-3293
1Others recognized by the Supreme Court include:
the rights to m arry, Loving v. Virgin ia, 388 U.S. 1 (19 67); to
have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
535 (1942); to direct the education and upbringing of one’s
children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v.
Soc iety of Sisters, 268 U.S. 510 (1925 ); to marital privacy,
Grisw old v. Conne cticut, 381 U.S. 47 9 (1965); to use
contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to
occurred after July 6, 1996 (which is not clear either in her
complaint or in her brief on appeal), she appears to contend
that her ultimate dismissal from the Medical College was the
result of her failure to complete the internal medicine rotation
in 1994, and that the defendants’ requiring her to take an
additional month of an internal medicine rotation once she
was reinstated—and dismissing her when she refused to
comply—was racially discriminatory and, therefore, arbitrary,
capricious, and unfair. We find no merit to these arguments.
The interests protected by substantive due process are of
course much narrower than those protected by procedural due
process. Most property interests warranting the protection of
procedural due process, for instance, may be substantively
modified or abolished by the legislature. See, e.g., Atkins v.
Parker, 472 U.S. 115, 129-31 (1985). Interests protected by
substantive due process, which the legislature may not
infringe unless supported by sufficiently important state
interests, include those protected by specific constitutional
guarantees, such as the Equal Protection Clause, freedom
from government actions that “shock the conscience,” see
Braley v. Pontiac, 906 F.2d 220, 224-25 (6th Cir. 1990), and
certain interests that the Supreme Court has found so rooted
in the traditions and conscience of our people as to be
fundamental. See, e.g., Youngberg v. Romeo, 457 U.S. 307,
321-23 (1982) (right to reasonable care and safety while in
government custody); Johnson v. Cincinnati, 310 F.3d 484,
495-98 (6th Cir. 2002) (right to travel locally through public
spaces and roadways);1 but see DeShaney v. Winnebago

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No. 02-3293 Bell v. Ohio State University, et al. 15
bod ily integrity, Rochin v. California, 342 U.S. 165 (1952), and
to abortion, [Planned Parenthood v. Casey, 505 U.S. 833
(1992)].
Wash ington v. Glucksberg, 521 U.S. 702 , 720 (1997 ).
County Dep’t of Social Servs., 489 U.S. 189, 194-197 (1989)
(no substantive due process right to government protection
from an abusive domestic situation). As the Supreme Court
reasoned in denying a substantive due process right to commit
suicide:
we have always been reluctant to expand the concept of
substantive due process because guideposts for
responsible decisionmaking in this unchartered area are
scarce and open-ended. By extending constitutional
protection to an asserted right or liberty interest, we, to a
great extent, place the matter outside the arena of public
debate and legislative action. We must therefore exercise
the utmost care whenever we are asked to break new
ground in this field, lest the liberty protected by the Due
Process Clause be subtly transformed into the policy
preferences of the members of this Court.
Our established method of substantive-due-process
analysis has two primary features: First, we have
regularly observed that the Due Process Clause specially
protects those fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they
were sacrificed. Second, we have required in
substantive-due-process cases a careful description of the
asserted fundamental liberty interest. Our Nation’s
history, legal traditions, and practices thus provide the
crucial guideposts for responsible decisionmaking, that
direct and restrain our exposition of the Due Process
Clause.
16 Bell v. Ohio State University, et al. No. 02-3293
2None of the case s cited b y Bell in support of her claim actually ho ld
that such an interest exists. See Regents of Univ. of Michigan v. Ewing,
474 U.S. 214, 222 (1985) (assuming arguendo the existence of a
constitutionally protected property right in continued enrollment in
medical school); Board of Cu rators of the Univ. of M issouri v. Ho rowitz,
435 U.S. 78, 91-92 (19 78) (assuming arguendo a constitutionally
protected interest in continued enrollment in med ical scho ol); Martin v.
Helstad, 699 F.2d 387 , 390 (7th C ir. 1983) (assuming arguendo a
property interest in law school admission); Amelunxen v. Univ. of Puerto
Rico, 637 F.Supp. 426, 431 n.3 (D.P .R. 1986) (assuming arguendo that
a student has a property or a liberty interest in continuing education). In
fact, these decisions note that concerns of federalism, judicial capacity,
and academic freedom counsel against the recognition of such an interest.
Ewing, 474 U .S. at 226 (expressing “a reluctance to trench on the
prerogatives of state and local educational institutions and our
respo nsibility to safeguard their acad emic freedom” ); Ho rowitz, 435 U.S.
at 92 (noting that courts “are particularly ill-equipped to evaluate
academic performance”).
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
(citations and quotations omitted). Where, as we explain
below, there is no equal protection violation, we can see no
basis for finding that a medical student’s interest in
continuing her medical school education is protected by
substantive due process. Cf. Gutzwiller v. Fenik, 860 F.2d
1317, 1328-29 (6th Cir. 1988) (stressing, in the public
university context, the similarity of equal protection and
substantive due process).2 Certainly the contention that the
medical college’s actions were arbitrary or capricious cannot
be sufficient; otherwise judicial review for compliance with
substantive due process would become the equivalent of a
typical state or federal Administrative Procedure Act. See,
e.g., 5 U.S.C. § 706 (2)(A) (review of agency action under
arbitrary or capricious standard).
Even if Ms. Bell could claim an interest in her continued
enrollment that would be protected by substantive due
process, she has presented no evidence that she was denied
that protection by the defendants. In Regents of the
University of Michigan v. Ewing, 474 U.S. 214 (1985), the
Supreme Court addressed the claim of a medical student who

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No. 02-3293 Bell v. Ohio State University, et al. 17
complained that the University defendants had denied him
substantive due process after he failed Part I of the NBME,
which was required in order for him to proceed to the final
two years of the medical school program in which he was
enrolled. Rather than permitting the plaintiff to retake Part I,
the University dismissed him from the program after
evaluating his entire academic record. The Supreme Court
assumed, without deciding, that there was “a constitutionally
protectible right in [the plaintiff’s] continued enrollment.” Id.
at 223. Nonetheless, the Court made it clear that the
judiciary’s review of academic decisions is limited:
When judges are asked to review the substance of a
genuinely academic decision, such as this one, they
should show great respect for the faculty’s professional
judgment. Plainly, they may not override it unless it is
such a substantial departure from accepted academic
norms as to demonstrate that the person or committee
responsible did not actually exercise professional
judgment.
Id. at 225. The Court went on to point out that courts are ill-
suited to “evaluate the substance of the multitude of academic
decisions that are made daily by faculty members of public
educational institutions—decisions that require ‘an expert
evaluation of cumulative information and [are] not readily
adapted to the procedural tools of judicial or administrative
decisionmaking.’” Id. at 226 (quoting Horowitz, 435 U.S. at
89-90). Our review of the record in Ms. Bell’s case persuades
us beyond peradventure that, even if we assume that
substantive due process protects Ms. Bell’s interest in staying
in medical school, the decisions of the defendants in this case,
like the defendants’ determination in Ewing, “rested on an
academic judgment that is not beyond the pale of reasoned
academic decision-making when viewed against the
background of [her] entire career.” Ewing, 474 U.S. at 227-
28.
18 Bell v. Ohio State University, et al. No. 02-3293
3. Equal Protection
Ms. Bell claims that she was treated differently from non-
African American students and male students in the Medical
College, and that her dismissal from the medical school was
therefore in violation of the Equal Protection guarantee of the
Fourteenth Amendment. The district court found that Ms.
Bell had failed to provide any evidence whatsoever that she
was treated differently from similarly situated students
because of her race or gender, and we agree.
Although Ms. Bell claims that she was treated differently
from similarly situated non-minority and male students, her
brief on appeal points to no specific instances of such
disparate treatment occurring after July 6, 1996. We have
reviewed the record and conclude that it contains no evidence
that during the statutory period the defendants treated Ms.
Bell differently from any non-minority student or male
student, or that they made any decisions or took any actions
with regard to her on the basis of either her race or gender.
The Section 1981 Claim
Ms. Bell claims that by virtue of her enrollment in the
Medical College, she had a contractual relationship with the
Medical College, and that the defendants discriminated
against her with regard to that contract because of her race in
violation of 42 U.S.C. § 1981. That section provides:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is
enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.

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No. 02-3293 Bell v. Ohio State University, et al. 19
42 U.S.C. § 1981(a). The statute defines the term “make and
enforce contracts” as including “the making, performance,
modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms and conditions of the
contractual relationship.” 42 U.S.C. § 1981(b). The district
court did not address Ms. Bell’s claim that her relationship
with the College was contractual, but held that Ms. Bell had
presented no evidence, either direct or circumstantial, to
support a claim of racial discrimination. We accept Ms.
Bell’s contention that she had a contract with the Medical
College, see Behrend v. State, 379 N.E.2d 617, 620 (1977),
and, as we noted above, we review this claim without regard
to any statute of limitations. We find that Ms. Bell has
wholly failed to present any evidence to support her claim
that the defendants’ actions were in violation of Section 1981.
Ms. Bell does not appear to appeal the district court’s
conclusion that she presented no direct evidence of race
discrimination. In the absence of direct evidence, a claim of
race discrimination under Section 1981 not only requires
evidence sufficient to make out a prima facie case of
discrimination under the McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) framework, see Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir. 1992), it requires evidence
that the discrimination was intentional. See General Bldg.
Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389-91
(1982). To establish her prima facie case in the context of her
contractual relationship with the Medical College, Ms. Bell
must provide evidence that (1) she is a member of a protected
class; (2) she suffered an adverse action at the hands of the
defendants in her pursuit of her education; (3) she was
qualified to continue in her pursuit of her education; and
(4) she was treated differently from similarly situated students
who are not members of the protected class. See Mitchell,
964 F.2d at 582 (noting that a plaintiff may substitute for the
fourth element in the typical McDonnell Douglas framework
evidence that similarly situated individuals outside the
protected class received better treatment than he). Even
assuming that Ms. Bell could meet the third element of the
20 Bell v. Ohio State University, et al. No. 02-3293
prima facie case, she has come forward with not even a
scintilla of evidence of the fourth, namely, that the defendants
treated any similarly situated non-minority student differently
from the way they treated Ms. Bell with regard to any aspect
of her relationship with the Medical College. The district
court correctly held that without such evidence, Ms. Bell had
failed to make out a prima facie case of discrimination on the
basis of race.
Ms. Bell argues before us that she met her burden by
presenting her deposition testimony. According to Ms. Bell,
she testified that she knew Caucasian students were permitted
to retake exams, but she was not given that opportunity. Ms.
Bell declares,
[i]n essence, the trial Court requires that Plaintiff
identify by name an individual who received more
favorable treatment. This is not required under the law.
Plaintiff testified that she was aware that Caucasian
students were treated differently. This is sufficient
evidence of disparate treatment . . . . Plaintiff has indeed
come forth with sufficient evidence to demonstrate that
the students who were allowed to retake exams had the
most important characteristic, namely, they were
Caucasian. The trial Court requires too much when it
asks the Plaintiff to identify the similarly situated
students by name, etc.
Not surprisingly, Ms. Bell cites no authority for this
proposition. Merely reading Fed. R. Civ. Pro. 56(e) would
disabuse her of this view:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may
not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial.

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No. 02-3293 Bell v. Ohio State University, et al. 21
FED. R. CIV. PRO. 56(e) (emphasis added). And this circuit
has long held that “[m]ere conclusory and unsupported
allegations, rooted in speculation, do not meet that burden.”
Bryant v. Commonwealth of Kentucky, 490 F.2d 1273, 1274
(6th Cir. 1974) (per curiam).
We think it is important to note here that not only does Ms.
Bell egregiously misstate the law, she egregiously misstates
her own deposition testimony. When asked whether she was
aware of other students who had missed the final exam for the
internal medicine rotation in August of 1993, or who had
been permitted to take makeup exams in internal medicine
after missing the final, Ms. Bell responded that she did not
know of or could not recall any such students. When asked
whether she knew of any student who had been allowed to
take makeup exams in any other clinical rotation, she said that
she knew of such a student but could not recall the student’s
name, the clinical rotation at issue, or any other specific detail
about the student or the rotation. Significantly, she did not
remember whether this unidentified student was a member of
a minority race, although she thought the student was male.
In short, we have read Ms. Bell’s deposition and we conclude
that it contains no information whatsoever in support of her
claim that she was treated differently from similarly situated
medical students on the basis of her race, her gender or any
other characteristic.
Further, as the district court correctly held, Ms. Bell has
presented no evidence whatever that the defendants
purposefully discriminated against her on the basis of her
race. To the contrary, the evidence is overwhelming that Ms.
Bell did not meet the academic requirements of the Medical
College and was withdrawn in 1994; the defendants reinstated
her and went to great lengths to give Ms. Bell every
opportunity to do those things which were required of her in
order to earn her medical degree; when she failed and refused
to comply with the requirements, the defendants engaged in
three levels of committee review of that non-compliance; in
1997, after Ms. Bell had complied with none of those
22 Bell v. Ohio State University, et al. No. 02-3293
requirements, the defendants dismissed her for purely
academic reasons. In short, she has wholly failed to present
any evidence to support her claim that the defendants violated
Section 1981.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.

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