3 F.3d 850 (5th Cir. 1993), 92-3711, McGregor v. Louisiana State University Bd. of Sup'rs

Docket Nº:92-3711.
Citation:3 F.3d 850
Party Name:Robert T. McGREGOR, Plaintiff-Appellant, v. LOUISIANA STATE UNIVERSITY BOARD OF SUPERVISORS, et al., Defendants-Appellees.
Case Date:September 24, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 850

3 F.3d 850 (5th Cir. 1993)

Robert T. McGREGOR, Plaintiff-Appellant,

v.

LOUISIANA STATE UNIVERSITY BOARD OF SUPERVISORS, et al.,

Defendants-Appellees.

No. 92-3711.

United States Court of Appeals, Fifth Circuit

September 24, 1993

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Theodor A. Schirmer, Malibu, CA, for plaintiff-appellant.

Nancy C. Dougherty, W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, defendants-appellees.

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Appeal from the United States District Court for the Eastern District of Louisiana.

Before DAVIS and DeMOSS, Circuit Judges, and ZAGEL 1, District Judge.

ZAGEL, District Judge:

Robert T. McGregor suffered permanently disabling head and spinal injuries from a series of unfortunate accidents that occurred in 1968, 1972, and 1979. 2 His injuries have required and continue to require extensive treatment and a number of surgical procedures. Despite these setbacks, McGregor was determined to pursue a legal career. He took the LSAT in October 1987; his score was a 26. Upon recommendation of Professor Joseph from the Louisiana State University Paul M. Hebert Law Center ("Law Center"), McGregor took the LSAT a second time. He scored a 33. This score, combined with his undergraduate grade point average ("GPA") of 2.6, gave him an index of 93. The index cutoff for admission at the Law Center was 90. The Law Center admitted McGregor as a law student in 1988.

This action began after McGregor repeatedly failed to achieve a passing cumulative GPA and after the Law Center refused to allow McGregor to advance to the junior year. Eventually, the district judge granted the defendants' motions for summary judgment and dismissed the case in its entirety. McGregor filed a timely notice of appeal. This Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. Sec. 1291.

I. REHABILITATION ACT

Section 504 of the Rehabilitation Act of 1973 provides that:

[n]o otherwise qualified individual with handicaps ... shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity[, including those operated by a college, university, or other postsecondary institution, or a public system of higher education,] receiving Federal financial assistance.

29 U.S.C. Sec. 794. No one in this case disputes that McGregor is handicapped or that the Law Center receives federal funding. The question here is whether McGregor is an "otherwise qualified individual" who has been denied the benefits of the Law Center's program solely because of his handicap. McGregor suggests that he is otherwise qualified by virtue of admittance into the Law Center's program. McGregor is correct that his undergraduate record and LSAT score render him otherwise qualified for admission. In argument, McGregor often ignores the difference between being otherwise qualified for admission and being otherwise qualified for retention. Many students, handicapped or not, who qualify for admission into law school flunk out. They are not qualified for retention. The question here is whether McGregor is otherwise qualified for retention in the Law Center's program. 3

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Retention requirements generally take the form of minimum cumulative GPAs in a designated curriculum. Freshman students at the Law Center must attend full-time and achieve an overall average of 68 in the designated freshman course load in order to return for the junior year. A separate set of academic requirements, however, apply in the first freshman semester--a student must achieve at least an overall average of 65 to proceed to the second semester. A student who makes less than a 65 average during the first freshman semester may not attend the second semester and must apply for readmission. Ordinarily, the student is not readmitted for the following fall, but must wait an additional year to return.

To be otherwise qualified for retention, McGregor must be capable of satisfying the academic and technical requirements set by the Law Center with the aid of reasonable accommodations. 45 C.F.R. Sec. 84.3(k)(3) (1992); Brennan v. Stewart, 834 F.2d 1248, 1262 (5th Cir.1988). 4 Judge Duplantier essentially found that despite the Law Center's reasonable accommodations, McGregor failed to meet the academic standards and was not otherwise qualified. Moreover, the judge determined that the additional accommodations McGregor sought were not reasonable because they required the Law Center to alter substantially its academic standards.

We will affirm the district judge's grant of summary judgment if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When reviewing the record on summary judgment, we must draw all reasonable inferences in favor of McGregor, the nonmoving party. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993). To avert summary judgment, the nonmoving party must present specific facts showing a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The parties agree as to what accommodations were and were not made. The heated argument concerns their reasonableness. As we recognized in Brennan, whether a handicapped person is otherwise qualified, and consequently whether the accommodations are reasonable, are questions of fact. Brennan, 834 F.2d at 1260. So we can affirm the lower court's findings only if reasonable men could not differ from the conclusions that the Law Center provided reasonable accommodations and McGregor was not otherwise qualified. Id. To decide this, we must review exactly what the Law Center did with McGregor.

  1. Accommodations Made

    Prior to freshman registration in the fall 1988, McGregor asked that the Law Center accommodate his disability by permitting him to be a part-time student. The Law Center said no and told him that it had made an academic decision that a full-time freshman schedule is required. Instead, the Law Center made two accommodations for the upcoming freshman year: a handicapped parking permit and, upon McGregor's request toward the end of the first semester, additional time to complete his Criminal Law Examination. 5

    McGregor's overall GPA for the first semester was 61, below the required 65. McGregor, therefore, was supposed to sit out the second semester, reapply for admission, and wait an additional year to return. Instead, during the spring 1989 semester, the Law Center permitted McGregor to audit Professor Devlin's Constitutional Law I, along with a Legal Writing and Research class. 6 The Law Center also assigned Professor

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    Devlin with the specific task of providing McGregor with concentrated and individualized tutorial instruction. Devlin attested that he spent one hour each week working with McGregor outside class, which is considerably more time than he has ever spent with any other student. McGregor received a grade of 70 in Constitutional Law I and passed Legal Writing and Research. However, according to McGregor, these passing grades were at the expense of losing full use of his legs. Toward the end of the spring semester, McGregor's treating physician, Dr. Charles Kennon, authorized a wheelchair, apparently only for endurance purposes. Regardless of the reason, McGregor needed a wheelchair by May 1989.

    The Law Center eventually readmitted McGregor as a freshman on scholastic probation for the fall 1989 semester, without waiting an additional year after reapplying to return. In a letter dated June 27, 1989, Professor Howard W. L'Enfant, then also the Chairman of the Admissions Committee, informed McGregor of his readmittance under the following conditions:

    1. You shall forfeit all credits and quality credits previously earned and shall begin anew as a first year student in the curriculum in effect for 1989-90.

    2. You shall be on scholastic probation, and required to earn an average of 68 or better during each of the next two semesters.

    3. You shall carry a full load of work during each of the next two semesters.

    4. You will not be permitted to engage in any outside work during the fall semester 1989 and spring semester 1990.

    In addition to early readmittance, the Law Center made other adjustments for McGregor during this next semester. Prior to the 1989-90 academic year, the Law Center sent McGregor a proposed schedule of first year classes. It is undisputed that classes were switched so that he would attend them in the new instead of the old building, for easier access with a wheelchair. To accommodate further his wheelchair, the Law Center acquired special handicapped tables for the classrooms and removed the inner door in the first floor bathroom. Throughout the year, many of McGregor's professors assisted him with his academic work outside of class. 7

    In the fall 1989, McGregor was allowed to take three of his examinations at home. In the fourth course (Criminal Law), he was allowed eight hours, instead of the usual four, to complete the examination. When examinations came around in the spring 1990 semester, McGregor requested the same arrangements for at-home examinations. Katherine Spaht, as Vice-Chancellor, responded to McGregor's requests by providing alternative accommodations that the Law Center determined were "reasonable while still maintaining the integrity of the examination process." The Law Center gave McGregor: (1) extra examination time; (2) a choice of taking the exams on the first or third floor; (3) a room equipped with a...

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