Jane Doe v. New York UniversityJane Doe v. New York University
Robert M. Levy, New York City (Christopher A. Hansen, Diana T. Tanaka, New York Civil Liberties Union, New York City, of counsel), for plaintiff-appellee.
Gerald Bodner, New York City, for amicus curiae Albert Einstein College of Medicine of Yeshiva University.
MANSFIELD, Circuit Judge:
In this action under
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.
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.
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.”
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 be fully licensed and authorized to practice medicine; and
“(d) that in addition to being fully cured, she possesses the additional qualifications of good judgment, personal integrity and truthfulness, and a genuine commitment to the medical profession.”
The Payne-Whitney files on Doe were obtained by NYU for purposes of considering her application and turned over to the Medical School‘s Chairman of the Department of Psychiatry, Dr. Robert Cancro, for a recommendation as to her fitness to return to the school.
Upon Dr. Cancro‘s recommendation and the judgments of other NYU faculty members, made after considering the letters from Doe‘s two California psychiatrists, NYU decided not to readmit Doe. On August 29, 1977, Associate Dean Jacobus Potter told Doe of that decision over the phone. Dean Potter sent Doe a letter confirming the decision on September 12, 1977. In the letter Dean Potter stated:
“Major factors entering into this decision were of course the responsibilities and obligations of the School of Medicine, but it should be emphasized that your own best interests were not ignored. While the personal interview which you inquired about was not judged to be necessary for adequate consideration of your application. Dr. Cancro has kindly indicated his willingness to meet with you should you wish to discuss aspects of your own situation that you feel may not be covered in the record.”
At approximately the same time (fall of 1977) Doe was admitted as a graduate student to the Harvard School of Public Health to undertake a course of study leading to a degree of Masters of Science in Health and Policy Management. In her Harvard University medical questionnaire she falsely stated that she had not experienced any nervousness, worry or emotional disturbance causing a loss of time from work or study.
In response to NYU‘s refusal to readmit her Doe sought legal assistance, and on October 25, 1977, an attorney representing her wrote to NYU requesting that it reconsider Doe‘s application and threatening to bring legal action if it did not. NYU responded by agreeing to reopen the application on condition that Doe agree to be interviewed by an NYU psychiatrist. In order to determine whether it was in her own best interest to be interviewed, Doe consulted Dr. William Stage, a psychiatrist trainee at the Harvard University Health Services Psychiatric Clinic (Holyoke Center), whom she had previously seen for the purpose of obtaining therapy. Stage diagnosed her as having borderline personality disorganization, which he viewed as having been severe during 1972-76 and moderate to severe as of November 29, 1977, and noted that she “would likely have trouble” in medical school and might have trouble functioning in an emergency room context. On the other hand, Dr. Samuel Bojar, Associate Professor of Psychiatry at the Harvard Medical School, who apparently was Stage‘s superior and was also consulted by Doe on seven occasions from December, 1977 well into 1978, found that she did not manifest the characteristics of a Borderline Personality Disorder but a “chronic, neurotic depression” which he described as “a treatable condition.”
On December 2, 1977, the parties (NYU and Doe) agreed to an interview by Dr. Veva H. Zimmerman, an Associate Professor of Clinical Psychiatry at NYU Medical School.1 Dr. Zimmerman examined Doe on December 13, 1977, and made a report to Dr. Scotch by letter on December 27, 1977, explaining that she had met with Jane Doe for one hour and 40 minutes and that in order to avoid biasing herself she had not read any reports on Doe before the examination. Dr. Zimmerman stated that she had then read all materials in Doe‘s file, including the letters of recommendation by Doe‘s two California psychiatrists, and concluded that there were strong indications that Doe‘s “basic personality remains essentially the same as reported by Drs. Stern and Fisher in 1976 and in the discharge summaries from Payne-Whitney Hospital.” While recognizing that some progress had been made, Dr. Zimmerman noted that Doe depended greatly on her marriage “to help her maintain psychological equilibrium” and that although Doe might be able to handle a graduate program involving “purely intellectual material,” medical school, which required successful interaction with people, was quite a different matter. She therefore recommended against readmitting Doe.2
On the basis of the Zimmerman report NYU adhered to its earlier decision and on December 28, 1977, Jane Doe brought this action, claiming that the Zimmerman report could not be validated as a predictor of success in medical school and that NYU, a recipient of federal funds, had denied her readmission in violation of her rights under
Pursuant to the district court‘s order of January 3, 1978, Doe filed a complaint with OCR in January, 1978. OCR investigated her claim, and on August 14, 1979, its Regional Director, Charles Tejada, issued a letter to her attorney finding that she had been discriminated against by NYU in violation of
The matter then languished in OCR while it considered whether to cut off NYU‘s federal funding or take other steps to enforce its findings. Efforts by OCR to effectuate a conciliation failed. The Department of Education, which had the power to seek enforcement of OCR‘s ruling, declined to do so or to seek a cut-off of federal funding, in view of the pendency of the present action.
On October 27, 1980, Doe moved to have the case restored to the active calendar. Judge Goettel granted her motion on April 9, 1981. On August 6, 1981, Doe moved for a preliminary injunction and subsequently NYU cross-moved for summary judgment.
In support of her motion Doe argued as she does to us that she met this Circuit‘s requirements for preliminary injunctive relief. She claimed that she would be irreparably harmed unless NYU was required to readmit her to medical school; that she was likely to succeed on the merits because she was a handicapped person covered by
“It is my opinion, which I can state with a reasonable degree of medical certainty, that Jane Doe suffers from a Personality Disorder known as Borderline Personality, and that her condition is serious.... None of her therapuetic efforts ... would be considered of sufficient duration or intensity by me or by most experienced therapists to bring about major personality change of such a nature that Jane Doe would not relapse in the face of future emotional stress such as that encountered in medical school.”
As the result of an order by the district court, Doe finally submitted to an examination by Dr. Kolb on August 27, 1981. He reported, “In my opinion Mrs. Jane Doe remains at high risk of recurrence of personality disorganization if exposed to situations of stress such as would occur on return to medical school.”
NYU also produced an affidavit of Dr. Zimmerman, who had re-examined Doe in September of 1978 and had again concluded at that time that she was not qualified for readmission. Dr. Zimmerman reaffirmed this conclusion, stating:
“The character of (the) stress (of medical school), Jane Doe‘s prior history of failing to be able to deal with it, her diagnosis of personality disorder, and her failure to have received any appropriate degree of psychiatric treatment for it leads me to conclude that she has not made any reasonable showing that she is now qualified to re-enter medical school.”
NYU also relied on the Payne-Whitney diagnosis of Borderline Personality, which confirmed several other medical diagnoses. It pointed out that even one of Jane Doe‘s own doctors, Dr. Samuel Bojar, although disagreeing with the diagnosis in Doe‘s case, admitted that “a borderline person is not very treatable. It‘s a fixed situation.” On the basis of these medical diagnoses, which it claimed were well supported by Doe‘s history, NYU argued that Doe poses a danger to herself, her teachers, her fellow students, and her patients.
In a decision issued on September 25, 1981, Judge Goettel found that Doe was a “handicapped person” under
DISCUSSION
Preliminary Injunctive Relief
Turning first to the propriety of preliminary injunctive relief, Doe was entitled to a preliminary injunction only upon showing (a) that she would otherwise suffer irreparable injury and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in her favor. Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979); Caulfield v. Board of Education, 583 F.2d 605 (2d Cir. 1978). Where, as here, mandatory relief is sought, as distinguished from maintenance of the status quo, a strong showing of irreparable injury must be made, since relief changing the status quo is not favored unless the facts and law clearly support the moving party. Clune v. Publishers’ Association, 214 F. Supp. 520, 531 (S.D.N.Y.), aff‘d per curiam on opinion below, 314 F.2d 343 (2d Cir. 1963); Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976).
Irreparable Injury
On this record Doe did not in our view make a sufficient showing of irreparable injury to entitle her to mandatory injunctive relief. Ordinarily a one-year delay in obtaining admission to a graduate school for the purpose of pursuing professional studies, as distinguished from interruption or termination of attendance already in progress, is insufficient to warrant an injunction in the absence of other circumstances militating in favor of such relief. See, e.g., Donnelly v. Boston College, 401 F. Supp. 1, 4 (D. Mass. 1975), aff‘d per curiam, 558 F.2d 634 (1st Cir.), cert. denied, 434 U.S. 987, 98 S. Ct. 618, 64 L.Ed.2d 483 (1977); Timmerman v. University of Toledo, 421 F. Supp. 464, 466-67 (N.D. Ohio 1976). No such other circumstances exist here. On the contrary, there are strong indications that Doe could have waited a year without any serious loss. At the time when she sought relief she was gainfully employed in a responsible HEW position where she was highly valued by her supervisors. She and her husband had purchased a home near Washington, DC. If she prevailed on the merits she would be entitled to commence her studies at 33 years of age and despite her argument to the contrary would not be precluded from having a child during her matriculation.
It further appears that Doe could have reapplied for preliminary relief or sought trial at least a year earlier than she did. Although Judge Goettel, when he originally denied preliminary relief on January 3, 1978, directed Doe to exhaust her administrative remedies with OCR and on September 19, 1979, after OCR had issued its first letter of findings, removed the case from his active calendar to give the parties an opportunity to reach a voluntary resolution of the matter, he permitted discovery to proceed concurrently with the OCR investigation and provided that either party could apply to restore the case to his active calendar at any time. Despite OCR‘s issuance on January 14, 1980, of its second letter of findings, Doe did not move to restore the case to active status until October 27, 1980 (well after the NYU Medical School year had commenced) and simultaneously moved to shift the burden of proof to NYU. After Judge Goettel restored the case to active status on April 9, 1981, denying Doe‘s motion to shift the burden, and on June 16, 1981, ruled that he would not give any weight to the OCR‘s findings, Doe did not move for preliminary relief until August 10, 1981.
The Merits
Section 504 of the Rehabilitation Act of 1973 provides that “(n)o otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....”
Although the Supreme Court has not ruled on the question of whether
In order to make out a case based on a violation of
Section 7(7)(B) of the Act,
” ‘Major life activities’ means functions such as caring for one‘s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
In claiming to be a handicapped person under the Act, Doe is faced with her representations on applications that she did not suffer from any emotional problems and her testimony that her ability to function in major life activities has never been impaired and that she has never been unable to work or learn, as is attested to by her successful graduation from college, her receipt of a Masters Degree from Harvard and her outstanding record of employment as a member of HEW. Notwithstanding this evidence we believe that for present purposes she should be classified as a handicapped person under the Act, in view of the independent evidence of her extensive history of mental impairments requiring hospitalizations and her departure from NYU in 1976 because of her psychiatric problems, all of which indicate that she has suffered from a substantial limitation on a major life activity, the ability to handle stressful situations of the type faced in a medical training milieu. NYU‘s refusal to readmit her on the ground that she poses an unacceptable risk to faculty, students, and patients makes clear that she is “regarded as having such an impairment.” § 7(7)(B)(iii). Our conclusion is reinforced by the wide scope of the definition in § 7(7)(B), which includes in subdivision (ii) a “record of such impairment,” and by its legislative history, which indicates that the definition is not to be construed in a niggardly fashion. See S.Rep. No. 93-1297, 93d Cong., 2d Sess. (1974), reprinted in (1974) U.S.Code Cong. & Ad.News 6373, 6388-91.
In determining whether a handicapped person is “otherwise qualified” for admission to an institution of higher education, a court must also consider other factors not normally encountered in evaluating ability to satisfy employment standards or to qualify for a job. The first of these is a court‘s limited ability, as contrasted to that of experienced educational administrators and professionals, to determine an applicant‘s qualifications and whether he or she would meet reasonable standards for academic and professional achievement established by a university or a non-legal profession. “Courts are particularly ill-equipped to evaluate academic performance,” Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 92 (1978). For this reason, although the Act requires us rather than the institution to make the final determination of whether a handicapped individual is “otherwise qualified,” cf. New York State Ass‘n for Retarded Children v. Carey, 612 F.2d 644 (2d Cir. 1979), considerable judicial deference must be paid to the evaluation made by the institution itself, absent proof that its standards and its application of them serve no purpose other than to deny an education to handicapped persons.
Another factor which must be taken into account is that the qualification of a handicapped person for admission to an institution turns not only on whether he or she meets its reasonable standards but whether the individual, where a few (in this case 170) must be chosen out of thousands of applicants, is as well qualified despite the handicap as others accepted for one of the limited number of openings. In performing the difficult task, where there are more qualified applicants than places available, of making comparative judgments to determine which are the most promising candidates, the institution is not required to accept a qualified handicapped person if the handicap renders that individual less qualified than other qualified applicants.
Since an institution or employer is permitted to take into consideration an applicant‘s handicap in deciding whether he or she is qualified, a
Applying these principles, it is clear in the present case that Doe, a handicapped person, was denied readmission because of her handicap. NYU has come forward with evidence that the handicap was relevant to her qualifications for readmission according to its standards (see p. 770 supra) which appear reasonable enough and are not challenged. She therefore bears the burden of showing that despite her handicap she is qualified. Since her admission in 1975 was obtained on her false representation that she did not suffer from any recurrent illnesses or emotional problems, that initial admission does not serve to establish that she is “otherwise qualified” under the Act except to indicate that except for her personality disorder, which involved self-destructive and antisocial behavior, she was academically acceptable.8 NYU, however, was entitled, in determining whether she was qualified, to be advised of and to take into account her mental impairment, since it is directly relevant to her qualifications and bears upon her ability to function as a student and doctor, to get along with other persons, and to withstand stress of the type encountered in medical training and practice. NYU is of necessity concerned with the safety of other students, faculty and patients to whom Doe would be exposed, since this could adversely affect them as well as the success and reputation of its Medical School activities. Any harm done by her as a medical student to others, moreover, might expose it to legal liability for knowingly permitting such exposure.
The crucial question to be resolved in determining whether Doe is “otherwise qualified” under the Act is the substantiality of the risk that her mental disturbances will recur, resulting in behavior harmful to herself and others. The district court adopted as its test that she must be deemed qualified if it appeared “more likely than not” that she could complete her medical training and serve as a physician without recurrence of her self-destructive and antisocial conduct. We disagree with this standard. In our view she would not be qualified for readmission if there is a significant risk of such recurrence. It would be unreasonable to infer that Congress intended to force institutions to accept or readmit persons who pose a significant risk of harm to themselves or others, even if the chances of harm were less than 50%. Indeed, even if she presents any appreciable risk of such harm, this factor could properly be taken into account in deciding whether, among qualified applicants, it rendered her less qualified than others for the limited number of places available. In view of the seriousness of the harm inflicted in prior episodes, NYU is not required to give preference to her over other qualified applicants who do not pose any such appreciable risk at all.
In support of her claim Doe, on the other hand, has offered the opinions of various psychiatrists (Drs. Charles W. Casella, Elizabeth M. Richards, Samuel Bojar and David R. Calkins) to the effect that she is fit to pursue a medical career. In affidavits Dr. Casella expressed the view that she has “substantially recovered from her psychiatric illness,” and Drs. Richards and Bojar gave as their opinion that she does not now suffer from a Borderline Personality disorder. However, none of these psychiatrists rules out the risk that she may suffer a recurrence. Moreover, in their depositions Dr. Casella described Doe as having a “Passive-Aggressive personality” (DSM-II, 301.81) which is a type of personality disorder and Dr. Richards, while preferring to describe her as suffering from a “Depressive Neurosis” (DSM-II, 300.4), agreed that she might fall in the category of “Passive-Aggressive personality.” Dr. Bojar, while not agreeing that Doe had a Borderline Personality disorder, described his diagnosis as follows:
“Q. Did you make a diagnosis of Jane Doe at that time?
“A. Yes. My diagnosis was that of a chronic neurotic depression with anxiety precipitated when her particular needs could not be met. If I may elaborate on my formulation-I prefer ‘formulations’ rather than diagnostic labels. I see her as a perfectionist who is an overachiever, who imposes very high demands on herself and on others; and when these can‘t be met, she undergoes a great deal of frustration.
“Her security is based on her doing well, and when she cannot utilize this defense of really achieving at a high level she becomes anxious and, well, quite depressed. When she was making demands on others, when she needed others and people could not come through, she felt the same kind of frustration that she would feel from herself if she could not do well; and it was in these settings that the hostility would arise and some of these cutting episodes occurred, which I saw as really expression of anger and hostility against the others.”
For the reasons stated by the district court, it acted properly in refusing to give any weight to the findings of the OCR and, if the action is tried, they should not be accepted as evidence. On the other hand, the court erred in ruling that it would disregard for the most part Doe‘s prior psychiatric history and treat the expert testimony as being of lesser reliability than her recent behavior. In light of the type of behavioral disorder presented, which could result in a recurrence after a dormant period, expert opinion was entitled to greater weight in reaching a decision as to whether Doe was qualified. The court is required to perform the disagreeable task of considering Doe‘s entire psychiatric history and weighing the expert testimony on each side.
In our view, Doe, in addition to her failure to show threatened irreparable injury, has not on this record established any likelihood of success in proving that despite her handicap she is qualified for acceptance as a medical student or to engage in the practice of medicine. Moreover, while there may possibly be questions going to the merits that are sufficiently serious to make them a fair ground for litigation, the evidence indicates that there is a significant risk of recurrence of her self-destructive and harmful conduct, which NYU should not be required to bear pending trial and that a substantial basis exists for upholding NYU‘s decision to deny her readmission.10 See Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977). Against this, pending a full decision on the merits, plaintiff can show only the hardship of delay of another year in admission to medical school, which as indicated above, she has voluntarily chosen to do in the past. Thus the balance of hardships tips in NYU‘s favor, not in Doe‘s. Accordingly, the grant of a mandatory preliminary injunction must be reversed.
Summary Judgment
NYU would be entitled to summary judgment only upon showing that there is no genuine issue as to material facts which would mandate a judgment in its favor as a matter of law.
Accordingly, the district court‘s denial of NYU‘s motion for summary judgment is affirmed and its grant of mandatory preliminary injunctive relief is reversed. In order to insure that the parties will be restored as promptly as possible to the positions occupied by them before the district court‘s decision, the mandate shall issue forthwith. Each side will bear its own costs.
Notes
“In light of the seriousness of her past symptomatic behaviour and the critical implications of her impairment in judgment during that breakdown, the paucity of evidence during my interview to suggest that she would be able to avoid a repeated decompensation if presented with similar stressful conditions lead me to say that her prognosis is guarded. For these reasons I seriously question her readiness to resume medical study at this time.”
“this action is transferred to the suspense docket of the court subject to reinstatement on the calendar of the undersigned upon the filing of a request by either party stating that attempts to informally resolve the dispute have failed and that the 90-day conciliation period has expired and that such party is now prepared to actively litigate this cause.”
“The rigors of medical training, especially during the early stages, tend to place a severe strain upon the mental, emotional, and physical well-being of students.... (p. 111).
“Many medical recruits who withdraw from medical school do so not because they are academically incompetent but because they succumb to adversity and emotional strain.” (p. 133).
See also, Tokarz, Bremer and Peters, Beyond Survival, Work-group on Physician Well-Being, Resident Physicians Section, American Medical Association, Chicago (1979).