IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MOHAMAD HARIRI, 

Plaintiff, 

v. 

PORTLAND STATE UNIVERSITY and 

GWEN SHUSTERMAN, 

Defendants. 

PAP AK, Magistrate Judge: 

3:15-CV-1076-PK 

OPINION AND 

ORDER 

Plaintiff Mohamad Hariri filed this action against defendants Portland State University 

("PSU") and PSU professor Gwen Shusterman (in both her official and her individual capacities) 

on June 17, 2015. By and through his complaint, Hariri alleges that he was baselessly accused of 

Page 1 - OPINION AND ORDER 

Case 3:15-cv-01076-PK Document 36 Filed 05/05/16 Page 1 of 21
academic misconduct, in consequence of which he was suspended for one year from attendance 

at PSU and received a lower than deserved grade in one of his classes. Arising out of the 

foregoing, Hariri appears to allege both defendants' liability under 42 U.S.C. § 1983 for race, 

color, and/or national origin discrimination in violation of his rights under Title VI of the Civil 

Rights Act of 1964 (42 U.S.C. § 2000d et seq.) (Hariri's "Claim l"), under Section 1983 for 

violation of his Fourteenth Amendment substantive due process rights (Hariri's "Claim 2"), and 

under Oregon common law for intentional infliction of emotional distress (Hariri's "Claim 3"). 

Hariri seeks (i) award of $155,338 in economic damages plus "an additional amount of economic 

damages for Plaintiffs [unspecified] out of pocket medical expenses to be determined at trial," 

$100, 000 in non-economic damages for pain, suffering, and emotional distress, and punitive 

damages against PSU and Shusterman in her individual capacity in the total amount of$300,000, 

(ii) award of pre-judgment interest on all such money damages, (iii) award of his attorney fees 

and costs, and (iv) injunctive relief requiring defendants to reverse his suspension, raise his grade 

in one of his classes, expunge the accusation of misconduct and the suspension from his 

academic record, train all "managers and HR staff' at PSU to undergo counseling and training 

regarding illegal discrimination, and update PSU policies regarding "treatment of minorities." 

This court has federal-question jurisdiction over Hariri's discrimination and substantive due 

process claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental 

jurisdiction over Hariri's state-law claim pursuant to 28 U.S.C. § 1367. 

Now before the court is defendants' motion (#20) for summary judgment. As discussed 

below, shortly after defendants filed their motion, the parties agreed to defer proceedings in 

connection with defendants' evidence-based arguments in support of their position that they are 

Page 2 - OPINION AND ORDER 
entitled to summary judgment in their favor as to all of Hariri's claims, pending the production of 

certain documents in discovery, and to proceed at this time only in connection with a limited 

number of purely (or nearly purely) legal arguments raised by the parties in support of their 

respective positions. Also as discussed below, by and through his memorandum filed in 

opposition to defendants' motion, Hariri conceded that his intentional infliction and substantive 

due process claims had been improvidently brought, and at oral argument in connection with 

defendants' motion, Hariri expressly stipulated to those claims' dismissal with prejudice. Also as 

discussed below, Hariri advised the court in the course of oral argument that (despite the mam1er 

of its pleading) he intends his discrimination claim to arise under Title VI rather than under 

Section 1983, and that he in consequence stipulated to dismissal with prejudice of the 

discrimination claim to the extent it could be construed as arising under Section 1983. 

I have considered defendants' motion, oral argument on behalf of the parties, and all of 

the pleadings and papers on file. For the reasons set forth below, (i) pursuant to Hariri's 

stipulations, the motion is granted as to Hariri's substantive due process and intentional infliction 

claims, and those claims (Claim 2 and Claim 3) are in consequence dismissed with prejudice, 

(ii) also pursuant to Hariri's stipulations, the motion is fmiher granted as to Hariri's 

discrimination claim to the extent that claim may be construed as arising under Section 1983, and 

that claim (Claim 1) is in consequence dismissed with prejudice to that extent, (iii) the motion is 

additionally granted on its merits as to Hariri's discrimination claim to the extent that claim is 

alleged against Shusterman, and that claim (Claim 1) is in consequence likewise dismissed with 

prejudice to that extent, (iv) the motion is denied on its merits with leave to refile if appropriate 

at a later stage of these proceedings to the extent it addresses the immunity of PSU or of 

Page 3 - OPINION AND ORDER 
Shusterman in her official capacity from suit under the Eleventh Amendment or addresses PSU's 

personhood for purposes of Section 1983, ( v) the motion is denied as moot with leave to refile if 

appropriate at a later stage of these proceedings to the extent it addresses Shusterman's assertion 

of qualified immunity in her individual capacity, and (vi) proceedings in connection with the 

arguments raised by and through defendants' motion are otherwise deferred until a later stage of 

these proceedings as discussed below. 

LEGAL STANDARD 

Summary judgment is appropriate "if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 

56( a). A party taking the position that a material fact either "cannot be or is genuinely disputed" 

must support that position either by citation to specific evidence of record "including depositions, 

documents, electronically stored information, affidavits or declarations, stipulations (including 

those made for purposes of the motion only), admissions, interrogatory answers, or other 

materials," by showing that the evidence of record does not establish either the presence or 

absence of such a dispute, or by showing that an opposing party is unable to produce sufficient 

admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c). 

The substantive law governing a claim or defense dete1mines whether a fact is material. See 

lvforeland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). 

Summary judgment is not proper if material factual issues exist for trial. See, e.g., 

Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986); Warren v. City a/Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 

S.Ct. 1261 (1996). In evaluating a motion for SUillffiary judgment, the district courts of the 

Page 4 - OPINION AND ORDER 
United States must draw all reasonable inferences in favor of the nonmoving party, and may 

neither make credibility determinations nor perfonn any weighing of the evidence. See, e.g., 

Lytle v. Household Nlfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing 

Products, Inc., 530 U.S. 133, 150 (2000). 

FACTUAL BACKGROUND 

I. The Parties 

Plaintiff Hariri is an American of Arab descent, specifically of Lebanese and Syrian 

ancestry. Defendant PSU is a public, nonprofit educational institution receiving a portion of its 

funding from the State of Oregon and, apparently, a portion of its funding from the federal 

government. Defendant Shusterman is a PSU chemistry professor who was Hariri's instructor in 

Chemistry 221 in the Fall 2014 quarter, when Hariri attended PSU as a post-baccalaureate 

student. 

II. Material Factual History 

Although the motion now before the court is one for summary judgment, as noted above 

(and as discussed in greater detail below) because the parties stipulated to deferral of proceedings 

in connection with the parties' evidence-based arguments in support of their respective positions 

on the issues raised by defendants' motion, I do not at this time consider defendants' extensive 

evidentiary proffer in analyzing the merits of the arguments addressed herein. The following 

recital of the history underlying the parties' dispute should accordingly not be considered as 

containing any formal factual findings, but rather is provided solely for purposes of describing 

the context within which the parties' legal disagreement will be analyzed. 

Hariri alleges that, at all material times, he was either a current or a former student of 

Page 5 - OPINION AND ORDER 
PSU. Defendants offer evidence, which Hariri does not appear to dispute, tending to establish 

more specifically as follows. Hariri emolled as a full-time undergraduate student at PSU in Fall 

2009, prior to which he spent two academic years as an undergraduate studying at a community 

college in Oregon. Although Hariri received failing grades, only marginally passing grades, and 

marks indicating the absence of any basis for evaluating academic performance in some of his 

coursework, he ultimately graduated from PSU with a bachelor's degree in general science in 

2013. After graduation from PSU, Hariri applied unsuccessfully to dental schools, during the 

course of which process he learned that the presence of failing grades on his college transcript 

could negatively impact his applications. In consequence, beginning in 2014 Hariri began 

petitioning PSU for the right both to expunge from his transcript courses in which he completed 

none of the work and to retake classes in which he received failing or nearly failing grades. PSU 

denied several such petitions, but in September 2014 eventually granted one such petition to 

retake four courses in which he had previously performed poorly. In Fall 2014, Hariri enrolled at 

PSU as a post-baccalaureate student for the purpose of retaking those four courses. 

As Hariri alleges, and as defendants' proffer tends to establish, among the courses Hariri 

retook in Fall 2014 was General Chemistry I, also known as Chemistry 221, which was taught by 

Professor Shusterman. According to defendants' proffer, over 300 stndents were emolled in 

Chemistry 221 in that quarter, with the consequence that the students were divided into groups of 

approximately 20, each of which was assigned a "learning assistant" or "LA." According to 

defendants' proffer, the learning assistant assigned to Hariri's section was Dillon Willis. Also 

according to defendants' proffer, it was Shustennan's independently promulgated written policy 

to require students to bring photographic identification documents to the final exam in Chemistry 

Page 6 - OPINION AND ORDER 
221, due to the large number ofregistered students. (By contrast, Hariri alleges that it was not 

Shusterman's but rather PSU's policy in general to require students to bring proof of 

identification to final exams.) Also according to defendants' proffer, Chemistry 221 students 

were under notice that the final exam could be rescheduled for students who had a conflict with 

the regular schedule. 

As Hariri alleges, and as defendants' proffer tends to establish, the final exam for 

Chemistry 221 was given on December 8, 2014. Hariri alleges that he took the exam with all the 

other students on December 8, 2014. He further alleges that during the course of taking the 

exam, he witnessed Shusterman have a physical altercation with another student of Arab origin, 

accusing the student of cheating and personally effecting his violent ejection from the exam 

room. He further alleges that when he attempted to hand in his exam, the learning assistant 

would not accept the exam because Hariri had forgotten to bring proof of identification. He 

further alleges that he did not have time to explain the situation to Shusterman, because his father 

was in hospital and he had to leave immediately. 

By contrast, defendants offer Shusterman's and Willis' testimony tending to establish that 

toward the end of the exam period a person of Asian rather than of Arab origin attempted to hand 

in to Willis an exam bearing Hariri's name, that Willis immediately recognized that the person 

attempting to hand in the exam was not Hariri, that Willis asked to see the person's proof of 

identification and received the response that the person did not have it with him, that Willis 

asked the student to follow him to where Shustennan was sitting to discuss the matter with her, 

and that when Willis looked to see if the person was following him as requested, the person had 

disappeared. In support of their position that Shusterman's and Willis' testimony is accurate, 

Page 7 - OPINION AND ORDER 
defendants additionally offer into evidence numerous samples of Hariri's handwriting together 

with the handwritten exam of December 8, 2014, and the opinion testimony ofa handwriting 

expert that the person who wrote the exam of December 8, 2014, is not the same person who 

produced the samples ofHariri's handwriting. 

Hariri alleges that Shusterman emailed him that same day to advise him that she would be 

giving him a grade of "O" on the exam. The parties appear to agree that Shusterman ultimately 

did give Hariri a "O" grade on the exam, but that he nevertheless passed the course with a final 

grade of "D," due to having performed well in other coursework prior to taking the final exam. 

Defendants proffer evidence tending to establish that Shusterman emailed Hariri to advise 

him of Willis' report that another person had taken Hariri's exam in Hariri's stead. According to 

the proffered documentary evidence of email communications between Hariri and Schusterman 

on December 8, 2014, Hariri claimed to have been the person who wrote the exam bearing his 

name earlier that same day, and that he had needed to leave the exam room immediately after 

finishing the exam to pick up his father from hospital following surgery, and that he had had his 

wallet (impliedly containing proof of his identity) in his car where he could "have went ... and 

grabbed it [sic]" to show it to Willis had he had time to do so. The proffered evidence tends to 

establish that Hariri threatened twice to sue Willis over the report, and that Hariri attached as an 

exhibit to one of his email messages to Shusterman a copy of his lawyer's business card as an 

indication that he would follow through on the threat. The proffered evidence further tends to 

establish that Hariri expressed himself willing to come to Shusterman's office and retake the 

exam immediately, in Shusterman's presence. The proffered evidence further tends to establish 

that Shusterman told Hariri that he would be permitted to retake the exam the following day, on 

Page 8 - OPINION AND ORDER 
December 9, 2014, in her presence. 

As Hariri alleges and as defendants' proffer tends to establish, Hariri took a different 

version of the Chemistry 221 final exam on December 9, 2014, in Shusterman's presence. 

According to defendants' proffer, Shusterman reported the foredescribed events in their 

entirety to PSU Senior Student Conduct Officer Domanic Thomas; Hariri alleges that he 

personally initiated efforts to "resolve" the situation through Thomas' offices. According to 

defendants' proffer, Thomas performed a preliminary investigation and concluded that there was 

enough evidence of Hariri's misconduct to warrant a student conduct hearing. It appears that 

Thomas notified Hariri that a hearing would be held on December 19, 2014, with Thomas 

himself serving as the hearing officer, and that Thomas arranged to meet with Hariri three days 

prior to the hearing, on December 16, 2014, to discuss the allegations against him. 

On December 16, 2014, according to defendants' proffer, Thomas met with Hariri and 

discussed with him the evidence HaTiri believed might tend to establish that he had been the 

person who wrote the exam of December 8, 2014, bearing his name. According to defendants' 

proffer, Hm~ri told Thomas that his cell phone records and public transportation surveillance 

footage recording his commute to campus via streetcar could be expected to support his story, 

but it appears that Hariri was unsuccessful in obtaining any such evidence. 1 It does not appear 

that Hariri identified to Thomas with particularity any fellow students who might have witnessed 

him sitting for the exam on December 8, 2014. 

1 Neither Hariri's allegations nor defendants' evidentiary proffer have any tendency to 

explain why Hariri might have believed surveillance footage would show him riding the streetcar 

to the PSU campus notwithstanding the assertion defendants' proffer tends to establish he made 

to Shusterman over email on December 8, 2014, that his wallet was in his car apparently easily 

accessible from the exam room at the time he took the exam. 

Page 9 - OPlNION AND ORDER 
According to defendants' proffer, on December 19, 2014, Hariri did not attend the hearing 

before Officer Thomas, but rather instead emailed Thomas, Shusterman, PSU general counsel, 

and other PSU officials through his then-attorney, threatening to bring suit against Shusterman 

and demanding both an immediate dismissal of the charges against him and immediate award of 

an "A" grade in Chemistry 221. Defendants' proffer tends to establish that Hariri's counsel 

asserted to the PSU officials that on December 8, 2014, proof ofHariri's identity was "not 

available to Mr. Hariri because his license was [at that time J suspended and confiscated. "

2 

Also according to defendants' proffer, on December 23, 2014, PSU assistant general 

counsel Krista Stearns responded via email to Hariri's counsel's message of December 19, 2014, 

requesting confirmation that Hariri did not intend to attend a hearing in connection with the 

charges against him, and that he preferred that PSU reach a final decision on the charges without 

consideration of any additional evidence Hariri might choose to offer them. By and through his 

counsel, according to defendants' proffer, later that same day Hariri responded in the affomative 

that he did not intend to appear at any such hearing or to offer fmther evidence prior to a final 

disposition of the charges against him. 

On December 30, 2014, according to defendants' proffer, Thomas formally concluded that 

a person other than Hariri wrote the December 8, 2014, exam bearing Hariri's name. In 

consequence, PSU suspended Hariri for one year for cheating, and left Hariri's "D" grade in 

2 Neither Hariri's allegations nor defendants' evidentiary proffer have any tendency to 

explain why Hariri might have asserted, as defendants' evidentiary proffer tends to establish that 

he did, that he could have retrieved proof of his identity from his car if he had had time to do so 

after completing the exam on December 8, 2014, if in fact no proof of his identity was available 

to him at that time, as defendants' proffer tends to establish his then-attorney asserted to the PSU 

officials. 

Page 10 - OPINION AND ORDER 
Chemistry 221 undisturbed. On December 30, 2014, PSU advised Hariri of his right to appeal its 

decision, which Hari1i did on January 4, 2015. On Janumy 20, 2015, PSU Interim Vice President 

of Enrollment Management and Student Affairs Dan Fortmiller upheld the decision of December 

30, 2014. 

According to defendants' proffer, beginning in or around autumn of 2014, Hariri applied 

to several dental schools. According to defendants' proffer, alld as Hariri alleges, all denied his 

applications. According to defendants' proffer, some of the rejections cmne before any of the 

schools saw any trallscript with any grades from Fall 2009 or any other reference to such grades; 

all other such rejections came at a time when Hariri had informed the dental school by letter that 

he had retaken several courses in Fall 2009 and received "A" grades in all such retaken courses, 

but that there had been a "minor misunderstanding" in one of them that would soon "be 

resolved," following which he would send fill updated transcript reflecting the "A" grades in the 

Fall 2009 courses. 

Hariri alleges, and defendants appear to concede, that PSU receives at least some federal 

funding. 

III. Material Procedural History 

Hariri filed this action against PSU and Shustennan (in both her official and her 

individual capacities) on June 17, 2015, alleging both defendants' liability for race/color/national 

origin discrimination, violation of his substantive due process rights, and intentional infliction of 

emotional distress. On January 28, 2016, Hariri moved to compel PSU to produce documents in 

discove1y. On March I, 2016, prior to disposition ofHmiri's motion to compel, defendants filed 

the motion for summary judgment that is now before the court. 

Page 11 - OPINION AND ORDER 
On March 22, 2016, Hariri moved for extension of time to respond to defendants' 

dispositive motion, arguing that he could not adequately respond to defendants' evidence-based 

arguments prior to PSU's production of the documents within the scope of his then-pending 

motion to compel. I presided over a telephonic hearing and scheduling conference in connection 

with Hariri's pending motions on March 31, 2016, in the course of which the parties advised the 

court that they believed it would be judicially efficient for the comt to determine the merits of the 

purely legal (or nearly purely legal) arguments raised by defendants' i:!lspositive motion without 

first awaiting completion of discovery among the pmties. In light of the pmties' advice to the 

court, I directed the parties to proceed only in connection with those arguments to which Hariri 

was able to respond prior to completion of discovery, deferred proceedings in connection with 

defendants' evidence-based arguments until after resolution of the arguments to which Hariri was 

able to respond, and denied Hariri's motion to compel and motion for extension of time as moot, 

with leave to refile if appropriate at a later stage of these proceedings. 

On April 8, 2016, Hariri responded to defendants' dispositive motion. By and through his 

opposition memorandum, Hariri indicated his intention to voluntarily withdraw his intentional 

infliction of emotional distress claim, expressly stipulating to its dismissal, and conceded that his 

substantive due process claim had been improvidently brought, indicating his intention at some 

later stage of these proceedings to seek leave to amend his pleading to state in its stead a 

procedural due process claim. Hariri indicated that, in connection with his discrimination claim, 

he would respond only to defendants' arguments that PSU and Shusterman in her official capacity 

are immune from suit under the Eleventh Amendment, that PSU is not liable to suit under 

Section 1983 as it is not a "person" for purposes of the statute, and that Shustennan in her 

Page 12 - OPINION AND ORDER 
individual capacity enjoys qualified immunity from suit. 

Oral argument was held in connection with defendants' dispositive motion on April 25, 

2016. At oral argument, Hariri confomed by and through his counsel that he stipulated to 

dismissal with prejudice of both his intentional infliction claim and his substantive due process 

claim, and further confirmed his intention to move at some future time for leave to amend his 

pleading to state a procedural due process claim.3 In addition, Hariri clarified for the first time in 

these proceedings, by and through his counsel, that his discrimination claim was intended to arise 

under Title VI only, and he stipulated to dismissal with prejudice of his discrimination claim to 

the extent it could be constrned as pled under Section 1983. 

For their part, defendants conceded at oral argument that (as will be discussed in greater 

detail below) their arguments regarding Eleventh Amendment immunity from suit and PSU's 

personhood for Section 1983 purposes were inapposite following Hariri's clarification that his 

discrimination claim arises only under Title VI. Defendants nevertheless maintained that 

Shuste1man is entitled to qualified immunity from suit in her individual capacity in connection 

with Hariri's discrimination claim and asserted the partially novel argument that Hariri did not 

adequately allege his own standing to bring a claim under Title VI. In response to my inquiry as 

to whether a Title VI claim could lie against an individual defendant in that person's individual 

capacity, defense counsel responded in the negative, but neve1theless appeared to reserve the 

right to asse1t qualified immunity in the alternative to the argument that a lawsuit against an 

individual capacity defendant is not cognizable under Title VI. In response, Hariri denied that 

3 Hariri further confirmed by and through his counsel that in moving for leave to amend 

his pleading, he would address by and through his supporting memorandum both the timeliness 

of his motion and the question of potential futility of the amendment at issue. 

Page 13 - OPINION AND ORDER 
Shusterman could be entitled to qualified immunity in connection with the alleged deprivation of 

his right to freedom from discrimination and asserted that his standing to bdng a Title VI claim 

could fairly be inferred from the allegations of his complaint. 

ANALYSIS 

I. Hariri's Substantive Due Process and Intentional Infliction of Emotional Distress 

Claims (Claim 2, Claim 3); Hariri's Discrimination Claim (Claim l)to the Extent 

Construable as Arising Under 42 U.S.C. § 1983 

Pursuant to Hariri's stipulations (discussed above), his substantive due process claim 

(Claim 2) in its entirety, his intentional infliction of emotional distress claim (Claim 3) in its 

entirety, and his discrimination claim (Claim l) to the extent that it could be construed as arising 

under Section 1983 rather than Title VI are dismissed with prejudice. 

II. Hariri's Title VI Discrimination Claim (Claim 1) 

"Title VI of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, provides in pertinent part that 

'no person in the United States shall, on the ground of race, color, or national origin, be excluded 

from participation in, be denied the benefits of, or be subjected to discrimination under any 

program or activity receiving Federal financial aid.'" Fobbs v. Holy Cross Health Sys. Corp., 29 

F.3d 1439, 1446 (9th Cir. 1994), quoting 42 U.S.C. § 2000d .. 

To state a claim for damages under 4 2 U.S. C. § 2000d, et seq., a plaintiff must 

allege that (1) the entity involved is engaging in racial discrimination; and (2) the 

entity involved is receiving federal financial assistance. Wrenn v. Kansas, 561 F. 

Supp. 1216, 1221 (D.C. Kan. 1983) (citing Jackson v. Conway, 476 F. Supp. 896, 

903 (E.D. Mo. 1979)). Although the plaintiff must prove intent at trial, it need not 

be pled in the complaint. Wrenn, 561 F. Supp. at 1221. Compare Jackson, 476 F. 

Supp. at 903 (no proof of intent is required if plaintiff seeks only injunctive 

relief). 

There is no requirement that plaintiff plead that he was an intended beneficiary of 

the federally funded program in which defendants are alleged to have participated. 

Page 14- OPINION AND ORDER 
Wrenn, 561 F. Supp. at 1221. Cf Simpson v. Reynolds Metals Co., Inc., 629 F.2d 

1226, 1234-35 (7th Cir. 1980) (In reviewing complaint under§ 504 of the 

Rehabilitation Act of 1973, 29 U.S.C. § 794, which is modeled after and enforced 

in the same manner as 42 U.S.C. § 2000(d), court should not define program, and 

therefore identify its intended beneficiaries, in a "very naiTow fashion."); Byers v. 

Rockford Mass Transit Dist., 635 F. Supp. 1387, 1390 (N.D. Ill. 1986) ("As long 

as some federal funding is alleged in § 504 actions .. ., the program specificity 

issue is more properly the subject of a summary judgment motion."). 

Id. at 1447 (internal modifications omitted). 

A. Defendants' Challenge to Hariri's Standing to Bring a Title VI 

Discrimination Claim 

As noted above, at oral argument defendants challenged the adequacy ofHariri's pleading 

to establish that Hariri could be an intended beneficiary of the federal funding received by PSU. 

While Hariri took the position at oral argument that his status as an intended beneficiary could be 

inferred from his allegation that he was a student enrolled at PSU (and from the implicit 

presumption that any federal funding received by PSU was necessarily intended to benefit 

participants in PSU's educational programs), in the Ninth Circuit Title VI plaintiffs are not 

required to plead their status as intended beneficiaries, but rather must establish that status 

through proof at trial or at summary judgment. See Fobbs, 29 F.3d at 1447. Moreover, although 

defendants' motion is for summary judgment, the parties have agreed not to address evidencebased argument until a later stage of these proceedings, and defendants' challenge to Hariri's 

standing was not within the scope of the issues the pmties agreed to address at this time. I 

therefore decline to enter summary judgment in defendants' favor on Hmiri's discrimination 

claim on the asserted ground that he has not adequately pied his status as an intended beneficiary 

of PSU's federal funding. This issue is more properly addressed at a later stage of these 

proceedings, when both parties have had an oppo1tunity to present material evidence and 

Page 15 - OPINION AND ORDER 
argument. 

B. Hariri's Title VI Discrimination Claim to the Extent Alleged Against 

Shusterman 

The Ninth Circuit has observed that "§ 2000d ... does not provide for monetary relief 

against individual defendants," Braunstein v. Ariz. DOT, 683 F .3d 1177, 1183 (9th Cir. 2012), 

and all courts to have addressed the question have found that there is no private right of action 

whatsoever under Title VI against individual employees or agents of entities receiving federal 

funding, including actions for purely injunctive relief, see, e.g., Shatz v. City of Plantation, 344 

F.3d 1161, 1169-1171 (11th Cir. 2003), Aguirre v. San Leandro Police Dep't, Case No. 10-04364 

CW, 2011 U.S. Dist. LEXIS 17401, *7-8 (N.D. Cal. Feb. 22, 2011), Johnson v. Telew, Case No. 

06c6297-AA, 2007 U.S. Dist. LEXIS 8621, *7 (D. Or. Feb. 2, 2007), Clemes v. Del Norte County 

Unified Sch. Dist., Case No. C-93-1912 MHP (ENE), 1994 U.S. Dist. LEXIS 8625, *9-17 (N.D. 

Cal. Jun. 21, 1994), see also Miller v. lvfaxwell's Int'l, Inc., 991F.2d583, 587 (9th Cir. 1993). 

This conclusion follows from the plain language of the provision, which limits potential liability 

to entities that receive federal funds without extending liability to agents or employees of such 

entities, who do not receive funding or compensation directly from the federal government, see 

Shatz, 344 F .3d at 1169-1170, Aguirre, 2011 U.S. Dist. LEXIS 17401 at *7-8, Johnson, 2007 

U.S. Dist. LEXIS 8621 at *7, Clemes, 1994 U.S. Dist. LEXIS 8625 *9-14, from the scope of 

Congressional authority under the Spending Clause of the United States Constitution to restrict 

the conduct of direct recipients of federal funds, which does not extend to the conduct of persons 

not receiving such funds directly, see Shatz, 344 F.3d at 1170-1171, see also Davis v. lvfonroe 

County Bd of Educ., 526 U.S. 629, 640-641 (1999) (applying the same reasoning in the Title IX 

Page 16 - OPINION AND ORDER 
context), and from the scope of the enforcement power the government enjoys under Title VI, 

which extends only to funding recipients themselves, see Shatz, 344 F.3d at 1170. 4 Because as a 

matter of law Hariri cannot adduce evidence which could establish any basis for finding 

Shusterman liable in her individual capacity in connection with his Title VI discrimination claim, 

the discrimination claim (Claim 1) is dismissed with prejudice to the extent alleged against 

Shustennan in her individual capacity. 

The case law discussed above regarding Title VI lawsuits against individual employees or 

agents of recipients of federal funding makes no distinction between such lawsuits against such 

employees or agents in their individual versus their official capacities, implying that there can be 

no liability against employees or agents of recipients of federal fimding in either capacity. The 

Seventh Circuit has expressly considered the distinction, and has determined that Title VI claims 

do not lie against employees or agents of recipients of federal fimding, without regard to whether 

such persons are named in their individual or official capacities. See Smith v. Jvfetropolitan Sch. 

Dist. Perry Twp., 128 F.3d 1014, 1020-1021 (7th Cir. 1997). I agree with the Smith court and 

with the implied reasoning of the case law discussed above suggesting that, because Shusterman 

does not receive funding directly from the federal government even in her official capacity, no 

grounds exist as a matter of law for finding her liable in her official capacity under Title VI. 

Hariri's Title VI discrimination claim (Claim 1) is therefore likewise dismissed with prejudice to 

the extent alleged against Shusterman in her official capacity. 

4 Moreover, here the injunctive relief Hariri seeks is not cognizable as to Shusterman in 

her individual capacity: in her individual capacity, Shusterman lacks any capacity to reverse 

Hariri's suspension, to expunge charges against him from his official academic record, or even to 

modify his grades. 

Page 17 - OPINION AND ORDER 
C. Shusterman 's Assertion of Qualified Immunity 

In light of the dismissal with prejudice of each ofHariri's claims against Shusterman, 

Shusterman's assertion of qualified immunity in her individual capacity is moot. Defendants' 

motion is therefore denied as moot to the extent premised on Shusterman's qualified immunity 

from suit. 

D. Eleventh Amendment Immunity and PSU's Personhood 

It is well established that a state government or governmental body cannot be sued 

without its consent, pursuant to the Eleventh Amendment to the United States Constitution: 

That a State may not be sued without its consent is a fundamental rule of 

jurisprudence having so important a bearing upon the construction of the 

Constitution of the United States that it has become established by repeated 

decisions of this court that the entire judicial power granted by the Constitution 

does not embrace authority to entertain a suit brought by private parties against a 

State without consent given: not one brought by citizens of another State, or by 

citizens or subjects of a foreign State, because of the Eleventh Amendment; and 

not even one brought by its own citizens, because of the fundamental rule of 

which the Amendment is but an exemplification. 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984) (emphasis original), 

quoting Exparte State a/New York, 256 U.S. 490, 497 (1921); see also, e.g., id. at 99, n.8 ("The 

limitation deprives federal courts of any jurisdiction to entertain such claims .... "); Quillin v. 

Oregon, 127 F.3d 1136, 1138 (9th Cir. 1997) ("in the absence ofa waiver by Oregon of its 

Eleventh Amendment immunity, federal courts lack jurisdiction to review" claims against it). 

Eleventh Amendment immunity generally extends to suits brought by individuals against state 

agencies and state officials. See, e.g., Seminole Tribe v. Fla., 517 U.S. 44, 54 (1996). The 

applicability of such immunity constitutes a question of subject matter jurisdiction. See, e.g., 

1\!fcCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). 

Page 18 - OPINION AND ORDER 
An exception to Eleventh Amendment immunity for suit provides that an individual's suit 

may go forward against a state official in federal court where the plaintiff seeks only 

"prospective, but not compensatory or other retrospective relief' in connection with a challenge 

to "the constitutionality of official conduct enforcing state law." Puerto Rico Aqueduct & Sewer 

Auth. v. i\!Jetcalf & Eddy, Inc., 506 U.S. 139, 145 (1993); see also E'C parte Young, 209 U.S. 123 

(1908). This exception, known as the "Ex parte Young doctrine," "is narrow: It applies only to 

prospective relief, [and] does not permit judgments against state officers declaring that they 

violated federal law in the past. ... " Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 146 

(citations omitted). 

It is relatively well established that states may properly assert Eleventh Amendment 

immunity in connection with Section 1983 claims, and that state officials may do so in 

connection with Section 1983 claims for money damages. See Quern v. Jordan, 440 U.S. 332, 

342-345 (1979), Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-102 (1984); 

Braunstein v. Ariz. DOT, 683 F.3d 1177, 1188 (9th Cir. 2012); Peters v. Lieuallen, 693 F.2d 966, 

970 (9th Cir. 1982). 

However, it is also well established that Congress has in fact abrogated Eleventh 

Amendment immunity for purposes of claims for damages arising under Title VI, applicable to 

bodies receiving funding from federal sources. See 42 U.S.C. sec 2000d-7(a)(l); see also 

Braunstein, 683 F.3d at 1189. In consequence, defendants were correct to concede that their 

arguments premised on the Eleventh Amendment immunity from suit of PSU and of Shusterman 

in her official capacity are inapposite to Hariri's discrimination claim, which arises under title VI 

rather than under Section 1983. 

Page 19 - OPINION AND ORDER 
The same is true of defendants' arguments regarding PSU's status as a "person." The 

United States Supreme Court has held that states are not "persons" for purposes of Section 1983, 

and in consequence may not be found liable under Section 1983. Will v. J'vfich. Dep't a/State 

Police, 491 U.S. 58, 63-71 (1989). Moreover, it appears likely that PSU would be deemed an 

"arm" of the State of Oregon for purposes of determining whether PSU could be a person for 

Section 1983 purposes. See, e.g., Rounds v. Oregon State Bd. of Higher Educ., 166 F.3d 1032, 

1035 (9th Cir. 1999) (The University of Oregon is "an arm of the state" for Eleventh Amendment 

purposes because it is a state institution subject to the jurisdiction of Oregon's Board of Higher 

Education performing the govermnental function of providing education services to state 

citizens); Hagel v. Portland State Univ., 237 Fed. Appx. 146, 147-148 (9th Cir. 2007) (PSU is an 

"arm of the state" for Eleventh Amendment purposes, for the same reasons) (unpublished 

disposition). However, there is no requirement that a Title VI defendant be cognizable as a 

"person," and (as defendants conceded at oral argument) defendants' arguments regarding PSU's 

personhood are therefore inapposite to Hariri's discrimination claim. 

For the foregoing reasons, defendants' motion is denied with leave to refile if 

approporiate at a later stage of these proceedings to the extent premised on the Eleventh 

Amendment immunity from suit of PSU or of Shusterman in her official capacity, and to the 

extent premised on PSU's status as a "person." 

III. Deferred Proceedings 

Proceedings in connection with all other arguments raised by defendants' motion are 

deferred. By and through a separate order, a telephonic status conference will be set for the 

purpose of scheduling further briefing and a hearing in connection with those arguments. 

Page 20 - OPINION AND ORDER 
CONCLUSION 

For the reasons set fo1th above, defendants' motion (#20) for summary judgment is 

granted in pait and denied in pait, and further proceedings in connection with the remaining pait 

are deferred, as follows: (i) the motion is granted as to Hariri's substantive due process and 

intentional infliction claims, and those claims are in consequence dismissed with prejudice, 

(ii) the motion is granted as to Hariri's discrimination claim to the extent it may be construed as 

arising under Section 1983 and to the extent it is alleged against Shusterman in any capacity, and 

that claim is in consequence dismissed with prejudice to both those extents, (iii) the motion is 

denied on its merits with leave to refile if appropriate at a later stage of these proceedings to the 

extent it addresses the immunity of PSU or of Shusterman in her official capacity from suit under 

the Eleventh Amendment and to the extent it addresses PSU's personhood for purposes of 

Section 1983, (iv) the motion is denied as moot with leave to refile if appropriate at a later stage 

of these proceedings to the extent it addresses Shusterman's asse1t ion of qualified immunity in 

her individual capacity, and (v) proceedings in connection with the ai·guments raised by and 

through defendants' motion ai·e otherwise defened as discussed above. 

Dated this 5th day of May, 20 16. 

onorable Paul Papak 

United States Magistrate Judge 

Page 21 - OPINION AND ORDER 

Case 3:15-cv-01076-PK Document 36 Filed 05/05/16 Page 21 of 21