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Wanko v. Board of Trustees of Indiana University

United States Court of Appeals, Seventh Circuit

June 17, 2019

Catherine Wanko, Plaintiff-Appellant,
Board of Trustees of Indiana University, Defendant-Appellee.

          Argued March 28, 2019

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 16-cv-02789 - Tanya Walton Pratt, Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.


         Catherine Wanko brought this suit under Title VI of the Civil Rights Act, 42 U.S.C. § 2OOOd, alleging Indiana University (IU) discriminated against her by having her retake her entire first-year curriculum at IU's School of Dentistry. In discovery, IU produced spreadsheets containing the demographics and grades of the students in Wanko's class. Those spreadsheets showed no student, let alone one outside of a protected class, was similarly situated to Wanko. Wanko moved to compel the production of the actual student records, but that motion was denied. As Wanko was unable to show a sufficient comparator for her discrimination claim, the district court granted summary judgment to IU. We affirm.


         Wanko is a naturalized United States citizen from Cameroon. She began her dental studies at IU in Fall 2014. During the 2014-2015 school year, Wanko failed to complete successfully two courses: Removable Prosthodontics (RP) and Single Tooth Indirect Restorations (STI). Based on her grades in those classes, IU allowed Wanko the opportunity to remediate RP in Summer 2015 and retake STI in Spring 2016.

         A total of eight students, including Wanko, attempted to remediate RP. To pass the remediation course, a student had to score at least 80% on the exam. Wanko scored 71%. On June 22, 2015, IU notified Wanko she would have to repeat the whole first-year curriculum. She was the only student in her class to be held back. After Wanko failed to complete her second attempt at STI in Spring 2016, IU dismissed her.

         Not long thereafter, Wanko, through counsel, reached out to IU. In response, IU's general counsel emailed Wanko's counsel stating one other student, identified as "Student #2," also failed STI in Spring 2015. IU's counsel explained IU allowed Student #2 to proceed into the second-year curriculum "because she failed only one class and had a cumulative GPA above 2.0." The email showed Student #2 had a Spring 2015 GPA of 2.131. Wanko's GPA was 1.965.

         Wanko brought suit in October 2016. She claimed IU discriminated against her on the basis of race when it failed to promote her to the second-year curriculum.[1] In her complaint, Wanko alleged two or three similarly situated, non-black students were promoted when she was not. That charge was based on a conversation Wanko had with the professor who taught STI in 2015. He told her two or three students failed his course and would retake it the next year. He did not reveal any demographics about those students.

         In discovery, Wanko sought information about the demographics and grades of her former classmates. In response, IU produced spreadsheets showing the GPA, grades, race, and gender of each student in Wanko's class. IU did not provide the students' names, but it assigned every student a number as an identifier. IU says it chose this method of production out of concern for its responsibilities under the Family Educational Rights and Privacy Act of 1974 (FERPA), which set up safeguards concerning the release of student information. See 20 U.S.C. § l232g. IU's spreadsheets showed only two students had failed both RP and STI in the 2014-2015 school year: Wanko and another black female, the "Student #2" from the general counsel's email (IU identifies her as "Student #57 in the spreadsheets, but we will continue to refer to her as "Student #2"). Unlike Wanko, however, Student #2 successfully remediated RP and was allowed to proceed to the second-year curriculum despite her failing grade in STI.

         Wanko was not satisfied with IU's spreadsheets. She moved to compel production of the actual student records, claiming she needed them to know which white students in her class failed STL She argued the spreadsheets are unreliable because the GPA for Student #2 is different than the GPA the general counsel had reported earlier. The general counsel had provided a GPA of 2.131, whereas the spreadsheets reported a GPA of 2.568. Responding to Wanko's motion, IU explained the discrepancy was because the general counsel provided Student #2's Spring 2015 GPA, but the spreadsheets provided Student #2's cumulative GPA.

         A magistrate judge orally denied Wanko's motion during a telephonic discovery conference. Because IU had provided Wanko with the demographic and grade information in the spreadsheets, the judge concluded Wanko had not shown she needed the actual student records. The judge also concluded Wanko had not shown the spreadsheets lacked veracity. After that oral denial, Wanko filed a written motion making the same arguments, which the magistrate judge also denied.

         Wanko objected to the district court. While that objection was pending, IU moved for summary judgment. Wanko, rather than responding to the motion, moved to postpone ruling on ...

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