The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiffs, a former student of Truman College and her mother, filed a sixteen-count complaint against Truman College, City Colleges, its Board of Trustees, the Chancellor of City Colleges (Dr. Wayne Watson), the interim President of Truman College (Dr. Lynn Walker), the Dean of Instruction at Truman College (Dr. Elizabeth Roger), the Vice President of Academic and Student Affairs at Truman College (Dr. Pervez Rahman) and three of Plaintiff S.Y.'s former professors, Elia Lopez (spanish), Dr. Priscilla Lancki (biology), and Dr. Mohamed El-Maazawi (chemistry). Defendants now move to dismiss the claims they believe are improperly pled and to clarify which persons are parties to the remaining claims.
For purposes of Defendants' motion, I accept the following basic facts from Plaintiffs' complaint as true: S.Y., born on June 19, 1996 is "an academically gifted child" of Asian descent who entered Truman College in 2006 after graduating from high school at the age of 9. Kyung Hye Yano ("Yano") is S.Y.'s mother. S.Y. completed 51 hours at Truman College before she withdrew because of the alleged harassment and discrimination she suffered. S.Y. faced particular problems in three courses while enrolled at Truman College.
In Spanish 101, Plaintiffs allege that S.Y. was harassed, intimidated and retaliated against in front of other students by Professor Lopez because of her age and voice level and otherwise treated differently from non-Asian females and males and persons who were of traditional college age. Lopez "reduced S.Y.'s grade unreasonably" and spoke disparagingly about S.Y. to other professors about S.Y.'s ability and performance.
In Biology 121, Professor Lancki harassed, intimidated, discriminated and retaliated against S.Y. and Yano, harassed S.Y and commented adversely about S.Y. in class in front of other students, and on multiple occasions tampered with or allowed someone to tamper with S.Y.'s test materials, resulting in S.Y. receiving failing grades. S.Y. and her mother complained to Dean Roeger about the problem with S.Y.'s test materials in Biology, and Roeger attempted to solve the problem by requiring S.Y. to take another exam. In addition, special accommodations were made so that professors other than Professor Lancki were assigned to grade S.Y.'s subsequent tests and assignments. In retaliation, Professor Lancki organized other students to protest S.Y.'s special treatment and he accused S.Y. of cheating. Professor Lancki's attitude and hostility towards S.Y. caused other students to turn against and ostracize S.Y. and she began to feel physically threatened and intimidated. At midterm, S.Y.'s biology grade was posted as a B, despite her grade of 98 on the midterm exam, which was supposed to be the only score accounting for the grade on the midterm report. During the final exam, Professor Lancki passed out an evaluation and told students that they would be given extra credit for filling it out. The evaluation contained questions relating to Professor Lancki's ethics and handling of discrimination matters. Professor Lancki threatened not to provide recommendations for students who gave her a poor evaluation. Yano again contacted Dean Roeger to complain. After Biology 121 ended, Professor Lancki continued to harass S.Y. by talking disparagingly about her to others at Truman College.
In Chemistry 201, S.Y. experienced similar problems with Professor Mohamed ElMaazawi, including testing irregularities and unwanted or inappropriate attention. Professor ElMaazawi additionally "placed S.Y. in physical danger and/or fear of physical danger" and on multiple occasions followed her while she was on campus. After S.Y. complained to the Truman College Administration, Professor El-Maazawi's hostile and discriminatory treatment accelerated. S.Y. was compelled to withdraw from Chemistry 201 eleven weeks into the semester. The harassment, discrimination, unequal treatment, and retaliation continued, and S.Y. was not able to graduate from Truman in the summer of 2008 as anticipated.
Plaintiffs allege that Truman College administration, including Chancellor Watson, President Walker, Vice President Rahman and Dean Roeger, failed to address the problems Plaintiffs complained about in an adequate or meaningful way. Some Truman College security guards refused to allow Yano to accompany S.Y. onto campus and escorted her off campus after Assistant Dean Ananda Marin promised there would not be any problems with this arrangement. On one occasion, Yano was ordered removed from the Truman College premises by the administration. As a result of Defendants' failures to address the repeated harassment and intimidation, S.Y. developed migraine headaches and both S.Y. and Yano suffered depression and anxiety.
Plaintiffs' response to Defendants' motion to dismiss acquiesced in the dismissal of several claims. Accordingly, the following claims are dismissed: Count III's claim for age discrimination, Count V's claim for discrimination on the basis of national origin, Count X's claim for misrepresentation, Count XII's claim for negligent infliction of emotional distress, Count XIII's claim for negligent training, and the § 1981 portion of Count VI for unequal treatment and retaliation. The institutional Defendants answered Count I's claim based on a violation of Title IX and Count II's claim based on a violation of Title VI. Plaintiffs concede that the individual defendants ought to be dismissed from these counts and do not object to the dismissal of Yano from these counts as well. Defendants have otherwise answered Count VII's claim for assault and Count XI's claim for intentional infliction of emotional distress. This leaves Defendants' motion to dismiss pending as to: Count IV and VI's § 1983 claim, Count VIII's claim for defamation, Count IX's claim for civil conspiracy, Count XIV's claim for negligence, and Counts XIV and XV's claim for breach of contract and promissory estoppel. For the following reasons, Defendants' motion to dismiss is denied in part and granted in part.
Defendants argue that the Engquist rationale precludes Plaintiffs' class-of-one theory under § 1983.*fn1 See Engquist v. Oregon Dept. of Agriculture, 128 S.Ct. 2146 (2008) (holding class-of-one theory cannot be extended to public employment decisions). In Engquist, the Supreme Court distinguished between the "government acting as a proprietor that was managing its own internal affairs" and the government acting "as a lawmaker that was attempting to regulate or license." Id. at 994 (quotation and citation omitted). As employer, the government "indeed has far broader powers than does the government as sovereign." Id. (quotation omitted). Therefore, the Court reasoned, judicial review in the government as employer context is correspondingly restricted. Id. In addition, the Court noted that the class-of-one theory of equal protection is an area where the rights of public employees should not be as expansive as the rights of ordinary citizens. Id. at 994-95 (noting the same limited rights for public employees in the First Amendment context, citing Garcetti v. Ceballos, 547 U.S. 410 (2006), as well as in the Fourth Amendment context where the government need not obtain a warrant to search an employee's property, citing O'Connor v. Ortega, 480 U.S.c 709, 721-22 (1987)).
Plaintiff's class-of-one theory, however, does not similarly "upset long-standing personnel practices." Engquist, 478 F.3d at 995. The relationship between the parties here is not one of employer-employee, and thus the rationale in Engquist which addresses that specific relationship does not apply with particular force here.
A plaintiff may proceed on a class-of-one theory where a "plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Comm'n of Webster City, 488 U.S. 336 (1989)). Defendants cite a post-Engquist educational case in support of their argument that the class-of-one theory is not available in the educational setting, see Bissessur v. Indian Univ. Bd. of Trustees, No. 07 CV 1290, 2008 WL 4274451 (S.D. Ind. Sept. 10, 2008), but in that case the plaintiff failed to point to others similarly situated, failed to show differing treatment, and failed to demonstrate any discriminatory intent on the part of the University. The court in Bissessur held that plaintiff's equal protection claim was inadequate because he could not escape the rational basis for his dismissal from the academic program - which was that he received an F on a clinical rotation that was an essential part of his academic preparation for the medical profession. Id. at *9. The facts here are different: Plaintiffs have successfully alleged that S.Y. was intentionally treated differently from her classmates at Truman College with no rational basis for the difference in treatment. Accordingly, Defendants' motion to dismiss Count IV and the § 1983 portion of Count VI is denied.*fn2
In Count VIII, Plaintiffs bring a state law defamation claim, alleging: while in the course and scope of their employment at Truman College, Defendants Dr. Priscilla Lancki, Dr. Mohamed ElMaazawi, Ms. Elia Lopez, Ms. Elizabeth Roeger and Dr. Pervez Rahman made false and malicious statements of fact about S.Y.'s intelligence, veracity, ethics, and maturity in an effort to destroy her reputation and ability to pursue her education at Truman. In an effort to force Plaintiff S.Y. to withdraw from Truman College, the Defendants listed above made repeated false statements to third parties including other students, faculty and staff at Truman College. These defamatory statements were part of a system of harassment, intimidation, mockery, and unequal treatment and retaliation directed against Plaintiffs.
Specifically, the claim of defamation against Professor Lancki and Dean Roeger is based on Lancki's repeated statements to others, including students, that S.Y.chetaed on her exams and that her grade was a B when S.Y. actually earned a 98, or an A. Dean Roeger allegedly reinforced Lancki's statements by suggesting students that they were true.
First of all, S.Y., and not her mother, is the proper plaintiff with respect to this count. In addition, Plaintiffs do not contest that the institutional Defendants and Defendants ...