Anderson v. University of Wisconsin, 87-2335

• Decision Date: 07 March 1988
• Docket Number: No. 87-2335,87-2335
• Citation: 841 F.2d 737
• Parties: 45 Ed. Law Rep. 537 Fradus Lee ANDERSON, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 737

841 F.2d 737

45 Ed. Law Rep. 537

Fradus Lee ANDERSON, Plaintiff-Appellant, v. UNIVERSITY OF WISCONSIN, et al., Defendants-Appellees.

No. 87-2335.

United States Court of Appeals Seventh Circuit.

Argued Feb. 16, 1988.

Decided March 7, 1988.

Robert J. Gingras, Fox, Fox, Schaefer & Gingras, S.C., Madison, Wis., for plaintiff-appellant.

Robert D. Repasky, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., for defendants-appellees.

Before POSNER, EASTERBROOK and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

The University of Wisconsin Law School at Madison admitted Fradus Lee Anderson to the class entering in August 1979. He completed the semester with an average of 75, below the 77 required by the Law School. He was not permitted to complete the second semester of the 1979-80 year because he had not furnished the Law School with the necessary certification of his undergraduate degree. The Law School allowed him to return for the spring semester in 1981, despite his poor average and the knowledge that he is an alcoholic. Sensing that he was doing poorly Anderson asked to withdraw. The request was granted, but not before he received a D in legal writing and, while drunk, harassed and threatened his legal writing partner. The Law School admitted Anderson for a third time in the spring semester of 1982. He completed this semester with a cumulative average of 76.92. The Law School informed Anderson that he would not be allowed to continue.

The district court recounts Anderson's saga in trying to be readmitted for a fourth try. 665 F.Supp. 1372 (W.D.Wis.1987). The Law School generally readmits students whose failure stems from a problem that has been overcome. Anderson attributed his failure to drink and contended that he was recovering. The Retentions Committee thrice concluded that Anderson had not conquered his drinking problem, the third time after receiving live testimony from four of Anderson's supporters, including a counselor at his clinic. The Retentions Committee learned that Anderson generally abstained but still drank on occasions. It concluded both that Anderson was not prepared for a pressure-filled curriculum and that he could not complete the program within the five years ordinarily allowed.

The Petitions Committee of the Law School then reexamined the subject, holding a de novo inquiry in response to Anderson's grievance against the Retentions Committee. The Petitions Committee considered not only Anderson's grades and drinking but also his performance at the Business School. Anderson had received an "A/B" grade in "Legal Aspects of Business Administration", an undergraduate-level course duplicating materials Anderson covered in law school; the other grades were B/C, C, and D (which Anderson had reported as a C). The Business School said that it would not consider this performance sufficient for admission to its graduate program. The Petitions Committee concluded that the record did not augur satisfactory completion of the Law School program and declined to readmit Anderson. The Vice Chancellor for Academic Affairs of the University, after still another inquiry, affirmed this decision. Anderson then filed this suit against the University, its Chancellor and Vice Chancellor, the Law School, and the members of the two committees (collectively the University). He argued that the University violated Sec. 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794, by discriminating against him on account of alcoholism, and also violated the Equal Protection Clause by discriminating on account of his race (he is black). The district court granted summary judgment to the University.

None of the evidence in this record hints that the University held Anderson's race against him. The Law School admitted Anderson under a program permitting minority students to enroll although they do not meet the ordinary criteria; it then twice readmitted Anderson despite his poor performance and drinking problem. Only after he had failed for a third time did the Law School draw the line; even then the Law School permitted Anderson to take a course in the summer session, and the Business School permitted Anderson to take several courses. Although, as Anderson observed, most of the students (of any race) readmitted by the Retentions Committee had averages lower than 76.92, this is an artifact of the cutoff at 77.00; the range 76.93 to 76.99 does not contain many students. Anderson does not contend that any student, of any race, has been readmitted unless the Law School thought that the source of the academic difficulties had been overcome; that other students were readmitted therefore is not a basis of an inference of discrimination. More, the median grade point average of readmitted black students was 76.23, and the median of readmitted white students was 77.53. 665 F.Supp. at 1390. This demonstrates the absence of systemic discrimination against blacks; white students needed higher averages than black students did to elicit a favorable decision from the Retentions Committee.

On the Rehabilitation Act aspect of the case, the University does not dispute Anderson's contention that an alcoholic is a "handicapped individual" within the meaning of the Rehabilitation Act; we therefore assume that he is. Cf. School Board of Nassau County v. Arline, --- U.S. ----, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). Anderson does not contend that the Act requires the University to alter its standards or procedures to accommodate his alcoholism; we therefore assume that it need not.

Section 504 provides that an institution receiving federal funds may not discriminate against an "otherwise qualified handicapped individual". See also 45 C.F.R. Sec. 84.3(k)(3). The district court ruled in favor of the University because, it believed, Anderson is not "otherwise qualified" to continue as a law student. His average was below 77; the Law School requires an average of 77; that is that. 665 F.Supp. at 1391-92. See Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Anderson replies that but for his drinking he could achieve an average of 77, but this misses the point. Davis held that a deaf person need not be allowed to work as a nurse. But for her handicap, Davis could hear. That was unimportant; the Court held that the right inquiry is whether the person can satisfy the program's requirements despite his handicap. "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Davis, 442 U.S. at 406, 99 S.Ct. at 2367. The Rehabilitation Act forbids discrimination based on stereotypes about a handicap, but it does not forbid decisions based on the actual attributes of the handicap. The Act replaces "reflexive reactions ... with actions based on reasoned and medically sound judgments". Arline, 107 S.Ct. at 1129.

Although inability to perform at the required standard as a result of a handicap makes a person not "otherwise qualified", a court still must decide what that standard is. The meaning of a standard lies in the method of its application. A student who cannot maintain an average of 77 at the Law School is not qualified to remain as a student, unless the student shows that the source of...