Appeal from an order of the Southern District of New York, Gerard L. Goettel, Judge, in an action alleging discrimination against a handicapped person in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court denied the defendant's motion for summary judgment and issued a mandatory preliminary injunction requiring the defendant-university to readmit the plaintiff to its medical school. The issuance of preliminary injunctive relief is reversed. The denial of summary judgment is affirmed.
Before Feinberg, Chief Judge, and Mansfield and Newman, Circuit Judges.
In this action under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits a recipient of federal financial assistance from denying benefits to an "otherwise qualified" handicapped person solely because of his or her handicap, defendants, New York University and certain of its administrators (collectively referred to herein as NYU), appeal from an order of the Southern District of New York entered by Judge Gerard L. Goettel granting plaintiff Jane Doe preliminary injunctive relief directing NYU Medical School to readmit her as a first-year medical student and denying defendants' motion for summary judgment dismissing her complaint. We reverse the grant of preliminary injunctive relief and affirm the denial of NYU's motion for summary judgment.
Since the district court based its decision solely on a written record (consisting principally of affidavits, reports and medical records), without any evidentiary hearing, we are not limited, in determining whether preliminary injunctive relief was properly granted, to review of its exercise of discretion but may consider the record de novo, being "in as good a position as the district judge to read and interpret the pleadings, affidavits and depositions," Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979) (quoting Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir. 1972)). Preliminary injunctive relief ordinarily "should not be resolved on the basis of affidavits which evince disputed issues of fact," the proper course being first to resolve credibility issues through an evidentiary hearing, Forts v. Ward, 566 F.2d 849, 851-52 (2d Cir. 1977): Dopp v. Franklin National Bank, supra, 461 F.2d at 879, unless the facts admitted by the defendant would plainly entitle the plaintiff to such relief. In light of these principles, which apply with greater force where mandatory relief changing the status quo has been granted, we summarize the pertinent record facts.
Each year approximately 5,000 persons apply for admission as medical students to NYU Medical School, of whom those found best qualified by the Admissions Committee, some 170, are accepted. In 1975 Jane Doe was accepted after falsely representing in her application that she did not have any chronic or recurrent illnesses or emotional problems. In fact she, while gifted academically, had suffered for many years from serious psychiatric and mental disorders, which evidenced themselves in the form of numerous self-destructive acts and attacks upon others, followed by periodic treatments by psychologists and psychiatrists and admissions to various psychiatric hospitals for care and therapy. In the third grade she had trouble with her teacher, requiring the help of a psychologist and psychiatrist. In 1963, at 14 years of age, she tore up a report card and took five Doriden tablets (sleeping pills) in anger at her parents. Beginning in November, 1963, she was treated by a psychiatrist on 24 weekly visits. Despite her doctor's recommendation that she submit to at least several more months of therapy she terminated this treatment in June, 1964.
There is no evidence of further symptoms of psychiatric difficulties on Doe's part until November, 1972, when at the age of 23 she became upset by an interview she had had at the University of San Francisco Medical School and attempted suicide by drinking potassium cyanide. Over her resistance she was taken to the Stanford University Hospital emergency room. There she threatened to kill herself and had to be strapped to a stretcher. She was then moved to Santa Clara Valley Medical Center (Valley), where she stayed for 21/2 days. In January, 1973, she injected herself with cytosine arabinoside, a drug for treatment of cancer which attacks certain cells and renders them susceptible to infection. In March, 1973, she carved a hole in her stomach with a kitchen knife, using a local anesthetic stolen from a laboratory. Later in the month, after a counsellor at school asked her to accept inpatient treatment at Langley Porter Neuropsychiatric Institute, she severed an artery in her elbow with a razor blade. She was then admitted to Langley Porter, where she stayed for eight days. During her stay there she broke a light bulb, scratched her wrists, attacked a doctor, tore his nameplate off his door, and left against medical advice.
In July, 1973, after seeing her psychiatrist, Dr. David N. Daniels, Doe cut a vein in her left arm, losing a litre of blood which necessitated a transfusion and was admitted to Valley where she stayed six days. During her stay there she tried to leave, pulled sutures out of her wound, wrote in her blood on the wall, took charts from a nursing station, bit a staff member in the arm, and departed against medical advice. In October, 1973, after a visit to Dr. Daniels, she used a razor blade to cut her foot, resisted police custody and was admitted against her will to Valley for a 14-day stay. In the hospital she attacked a woman doctor, scratching her in the forearm and kicking her in the pelvis. In January, 1974, she cut herself again and was admitted to the Cowell Student Health Service at Stanford University. In March, 1974, she cut her left elbow, tried to seize her health records, kicked a doctor in the groin and tried to break a window, following which she was taken to the Stanford Hospital where she falsified her identity, claiming to be "Marita S. Williams." This was followed by more instances in which she cut herself and was admitted to hospitals for short periods.
In May, 1974, Doe became angry when her psychiatrist, Dr. Daniels, did not see her immediately upon her arrival at his office, and proceeded to cut her arm and smear blood on the wall of his waiting room. After the doctor finished with the patient he had been seeing and observed Doe in the waiting room, she attacked him, first biting him on the wrist and attempting to kick him in the groin, and then charging at him with a pair of scissors in an apparent effort to stab him. The doctor escaped to his inner office, locking his door. Doe left, only to return shortly thereafter and stand outside the doctor's window with a syringe, filled with a cyanide solution, that she had jabbed into her arm. The doctor called the police, who took her into custody. Doe was subsequently taken to Valley again, where she fought with staff members. In spite of a recommendation that she stay in the hospital for 90 days of treatment, she escaped through a window with the help of her husband six days after being admitted.
In July, 1974, Doe applied to five medical schools through the American Colleges Admissions System, falsely representing that she did not then have and had not had any chronic or recurrent illnesses or emotional problems. In December, 1974, she applied to NYU Medical School, answering "NO" to the question, "Do you have any chronic or recurrent illnesses, emotional problems, or bodily defects?" Her application was accepted in April of 1975, on the understanding she would become a student in September of that year. In the meantime, in January, 1975, while still in California, Doe cut herself in the waiting room of another psychiatrist, Dr. Charles W. Casella, who was scheduled to see her. When she lost a large amount of blood she was admitted to Kaiser Permanente Medical Center where she remained five days despite a recommendation that she stay for an indefinite period.
After starting at NYU Medical School in September, Doe was required as a matriculating student to undergo a medical examination early that month but delayed doing so until October 30, 1975. When the doctor who examined her, Dr. Michael Ruoff, noticed scars on Doe's arm, and inquired as to their cause she for the first time informed the University of some of her history of psychiatric problems. Dr. Ruoff recommended that Doe undergo a psychiatric examination to determine whether she was fit to stay at the school. Her reply was, "It is my body and what I do to it is my concern. If I want to go out and f a cat I can." She then walked out without completing the examination.
Shortly thereafter Doe met with Dr. David S. Scotch, Associate Dean of NYU Medical School, and agreed to be examined by a Student Health Service psychiatrist, Dr. Marvin Stern. In an interview with Dr. Stern on November 3, 1975, she gave a more detailed history of her psychiatric problems. Dr. Stern reached the conclusion that Doe had a "fragile personality" and sent her to Dr. Emmanuel Fisher for psychological tests. Doe underwent testing by Fisher on November 5, 1975. On the basis of these tests and his interview of her, Dr. Fisher also concluded that Doe had a serious psychiatric problem. He "noted that she had a grossly detached and alienated personality, with no effective intellectual or emotional contact with the world of things or people."
On November 10 Doe was again examined by Dr. Stern, following which Dr. Fisher recommended to Dr. Scotch that Doe be asked to withdraw from the medical school. Dr. Scotch agreed, and informed Doe of the decision on November 12. Doe asked to discuss the matter with Dr. Ivan Bennett, the Dean of the Medical School, and did so the same day. After reviewing the matter further Scotch and Bennett agreed to permit Doe to remain at NYU on the condition that she undertake psychiatric therapy with a medical follow-up by the Student Health Service. Doe accepted these conditions and was advised that if she had further psychiatric trouble she would be expected to withdraw from the school.
Doe began psychiatric therapy with Dr. Grace Frank of Bellevue Hospital while continuing her medical school program. Apparently this therapy was unsuccessful and it was eventually terminated. Doe maintains that the reason for termination was a scheduling problem; NYU maintains that the reason was Doe's lack of cooperation. Other than for this difficulty, the rest of November, all of December, and early January, 1976, were all uneventful.
On Friday, January 30, 1976, Doe went to Dr. Scotch's office, apparently by appointment, to discuss with him a conflict in her schedule that would occur the following Monday. Dr. Scotch was not in his office when Doe arrived, and she became distressed and angry. She left the office and attempted to calm herself, but to no avail. She returned and told Dr. Scotch that she would have to revert to her past habits in order to cope with the situation. She retreated to a bathroom, where she bled herself with a catheter. An hour later she returned to Dr. Scotch's office and told him what she had done, explaining that it was the only way she could cope with her stress. Dr. Scotch requested her resignation.
Doe met with Dr. Bennett the following Monday, February 2, discussed her situation with him and made a written proposal for a leave of absence, which was granted on the understanding that she might request reinstatement, which would be considered but not guaranteed in view of the problems she presented. Her tuition and dormitory fee for the second semester were refunded. After going to the University Hospital's psychiatric ward and then refusing to be admitted, on February 9 Doe was told by NYU to move out of her dormitory room and stop attending classes. She finally agreed to enter the Payne-Whitney Psychiatric Clinic (not affiliated with NYU) two days later, but left against medical advice on February 16. Doe apparently wandered around New York during the next three days, sleeping in public restrooms. She returned to Payne-Whitney on February 19, admitting that she was in need of help, and stayed there for 17 more days, after which her insurance ran out, but made no progress. Her condition on discharge was listed as "no improvement," with a diagnosis by Dr. James H. Spencer of "Borderline personality ... Personality disorders, other specified types 301.89."
A personality disorder classified as "Borderline Personality" is a serious condition, manifesting itself by a series of five or more recognizable characteristics, according to the American Psychiatric Association's Diagnostic and Statistical Manual (3d ed.) (known as "DSM-III"). A person suffering from it is likely to have it continue through most of his or her adult life, subject to modification only by treatment by well-trained therapists over a period of years and adoption of a lifestyle which avoids situations that subject the person to types of stress with which he or she cannot cope.
After leaving Payne-Whitney in March of 1976, Doe returned to California, where she was treated by two psychiatrists simultaneously on an outpatient basis, one (Dr. Casella) providing individual therapy, the other (Dr. Richards) family therapy in which her husband joined. Doe states that leaving NYU was "a major turning point in my life." She maintains that through the treatment she received in California she was able to master her psychiatric problems, develop healthy ways of dealing with stress, and cease her self-destructive behavior. Apparently she sought readmittance to NYU in July of 1976; the record before us is unclear on how she did so and on how NYU responded.
Doe and her husband moved to New York in October of 1976, apparently because he had a fellowship there. She took a job with an advertising agency and continued to undergo psychiatric treatment in New York until sometime between April and June of 1977. NYU and Doe disagree about the degree to which this treatment was successful. According to NYU she was unable to handle group therapy sessions at Payne-Whitney. According to Dr. Warren Tanenbaum, with whom she began treatment in February, 1977, which ended in April or May, she was ill at ease with him, hated psychiatrists, was late for her sessions, blamed Dr. Scotch for her difficulties at NYU, had thought of sticking scissors into her ribs, and feared she could not manage medical school.
In June or July of 1977, after having returned to California, Doe applied for readmission to NYU. Her application was supported by both of the psychiatrists who had treated her while she had been in California after leaving NYU, Drs. Richards and Casella, even though the first had seen her at most three times and the second at most two times during that summer. Both sent letters of support to NYU. According to NYU's standards a student seeking readmission
"must demonstrate that the problems that precipitated the leave are resolved, that the applicant must be able to handle all of the academic and emotional stress of attending medical school, and that the school must be satisfied that the applicant will be able to function properly after graduation as a physician."
More specifically NYU states that Doe would be required to show
"(c) that she does not pose a significant risk of reexhibiting her prior disorder either; (i) when readmitted to the same Medical School environment which previously caused her such difficulty; or (ii) when she might in the future ...