Guckenberger v. Boston University

Citation974 F.Supp. 106
Decision Date15 August 1997
Docket NumberCivil Action No. 96-11426-PBS.
PartiesElizabeth GUCKENBERGER, et al., Plaintiffs, v. BOSTON UNIVERSITY, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Frank J. Laski, Newton, MA, Sidney Wolinsky, Sid Wolinsky, Guy B. Wallace, Laurence W. Paradis, Disability Rights Advocates, Oakland, CA, William J. Hunt, William F. Ahern, Jr., Henry W. Clark, Michael B. Newman, Clark, Hunt & Embry, Cambridge, MA, for plaintiffs.

Lawrence S. Elswit, Michael B. Rosen, Office of General Counsel, Judith A. Goldberg, McDermott, Will & Emory, Alan D. Rose, Alan D. Rose, Jr., Rose & Associates, Erika Geetter, Boston, MA, for defendants.

Dale C. Kerester, Jager, Smith, Stetler & Arata, Boston, MA, Jo Anne Simon, Law Offices of Jo Anne Simon, Brooklyn, NY, for Loring Brinkerhoff.

Reed Martin, Law Office of Reed Martin, Houston, TX, for other interested parties.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF JUDGMENT

SARIS, District Judge.

INTRODUCTION

This is a class action1 brought by students with Attention Deficit Hyperactivity Disorder ("ADHD"), Attention Deficit Disorder ("ADD"), and learning disorders (collectively "learning disabilities") against Boston University ("BU") under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12101 et seq. (West Supp.1995), the Rehabilitation Act, 29 U.S.C.A. § 794 (West Supp. 1997), and state law.2 The class claims that BU discriminates against the learning-disabled by: (1) establishing unreasonable, overly-burdensome eligibility criteria for qualifying as a disabled student; (2) failing to provide reasonable procedures for evaluation and review of a student's request for accommodations; and (3) instituting an across-the-board policy precluding course substitutions in foreign language and mathematics. BU contends that its eligibility criteria are reasonably designed to ensure that a student is entitled to the requested accommodations, that its review procedures are adequate, and that it has the right to require that a student meet certain levels of proficiency in math and foreign language before it confers a liberal arts degree.

Particularly with respect to the issue of course substitution, this class action concerns the interplay between the rights of learning-disabled students to reasonable accommodation and the rights of institutions of higher education to establish and enforce academic standards.

The plaintiff class now seeks injunctive and declaratory relief against the continued implementation of BU's accommodations policy. Moreover, the named individuals3 request compensatory damages for the harm allegedly caused them by the university's purported violation of federal law, and by its alleged breach of the promotional promise to provide reasonable accommodations for students with diagnosed learning disabilities.

After a two-week bench trial, and an evaluation of the witnesses and evidence in this case, I have made numerous findings of fact and conclusions of law. To assist the reader, the Court's fundamental conclusions are summarized as follows:

1. Federal law prohibits private and public universities, colleges and post-secondary educational institutions from discriminating against students with specific learning disabilities.

2. In the fall of 1995, BU imposed new documentation requirements that required students with learning disabilities to be retested every three years, and that provided that evaluations by persons who were not physicians, clinical psychologists, or licensed psychologists were unacceptable. These new documentation requirements, as initially framed, violated the ADA and the Rehabilitation Act because they were "eligibility criteria" that "screen[ed] out or tended to screen out" students with specific learning disabilities, and because BU did not demonstrate that the requirements were necessary to the provision of educational services or reasonable accommodations.

3. The documentation policies have changed, however, since the start of this litigation. Because BU now permits a student to obtain a waiver of the three-year currency retesting requirement where medically unnecessary, I conclude that the retesting requirement, as currently framed, does not screen out or tend to screen out learning disabled students.

4. BU has also restructured its policy with respect to the qualifications of evaluators by permitting evaluators with doctorates in education (and in "other appropriate specialties") to document students' learning disabilities. Nevertheless, by precluding any evaluations by persons with masters degrees, BU's present policy still unnecessarily screens out or tends to screen out some students with specific learning disorders who have been evaluated by adequately trained professionals. BU has not demonstrated that an evaluator with a masters degree and appropriate training and experience cannot perform the testing for an assessment of learning disability as well as an evaluator with a doctorate. Accordingly, BU has not proven that a doctorate-level of qualification is necessary to the provision of reasonable accommodations with respect to students with learning disorders.

5. However, with respect to students with ADD and ADHD, BU has demonstrated that its "bright line" policy of requiring current evaluation by a person with a doctorate is necessary because ADD/ADHD is often accompanied by co-existing physical and psychological conditions, is frequently treated by medications, and is a rapidly changing condition that usually remits over the period from adolescence through early adulthood.

6. The administration of BU's new accommodations policy during the 1995-1996 school year violated the ADA and the Rehabilitation Act because it was implemented without any advance warning to eligible students, in such a way as to have the effect of delaying or denying reasonable accommodations. Moreover, BU President Jon Westling and his staff administered the program on the basis of uninformed stereotypes about the learning disabled.

7. However, because BU has recently hired an experienced clinical psychologist to review student accommodation requests, and because President Westling and his assistant Craig Klafter now review recommended accommodations primarily to ensure that they meet academic standards, the university's current procedure for evaluating requests for accommodation submitted by students with learning disabilities does not violate federal law.

8. The plaintiff class has no private right of action to challenge BU's violation of Rehabilitation Act regulations that require a university to adopt grievance procedures that incorporate appropriate due process standards.

9. In general, federal law does not require a university to modify degree requirements that it determines are a fundamental part of its academic program by providing learning disabled students with course substitutions.

10. Here, BU's refusal to modify its degree requirements in order to provide course substitutions, particularly in the area of foreign languages, was motivated in substantial part by uninformed stereotypes by the President and his staff that many students with learning disabilities (like the infamous, non-existent "Somnolent Samantha") are lazy fakers, and that many evaluators are "snake oil salesmen" who overdiagnose the disability.

11. BU failed to demonstrate that it met its duty of seeking appropriate reasonable accommodations for learning disabled students with difficulty in learning foreign languages by considering alternative means and coming to a rationally justifiable conclusion that the available alternative (i.e., a course substitution) would lower academic standards or require substantial program alteration. Rather, the university simply relied on the status quo as the rationale for refusing to consider seriously a reasonable request for modification of its century-old degree requirements.

12. Plaintiffs have failed to demonstrate that a request to modify the degree requirement in mathematics is reasonable in light of the dearth of scientific evidence that any specific learning disability in mathematics (i.e. dyscalculia) is sufficiently severe to preclude any student from achieving sufficient proficiency in mathematics to meet BU's degree requirements with appropriate accommodations.

13. BU breached its contract with three of the named plaintiffs by failing to honor the express representations of its representatives about the students' ability to document their disabilities and to receive accommodations from the university.

FINDINGS OF FACT
I. BU's Recruitment of the Learning Disabled

BU is one of the largest private universities in the United States, with 20,000 students, 2,000 faculty members, and fifteen undergraduate and graduate colleges that offer 150 separate degree-granting programs. The College of Arts and Sciences is the largest college in the university. It has long-standing course requirements, including one semester of mathematics and four semesters of a foreign language. Degree requirements at all of BU's colleges are approved by the Provost, the President, and the Board of Trustees.

Before 1995, BU was a leader among educational institutions in seeking to provide comprehensive services to students with diagnosed learning disabilities. The university recruited learning-disabled enrollees by establishing the Learning Disabilities Support Services ("LDSS"), a renowned accommodations program that functioned as a unit within BU's Disability Services office ("DSO"). LDSS was often described as a "model program." Through LDSS, the university declared a commitment to enabling students with learning disabilities to reach their maximum academic potential. For example, LDSS promotional brochures offered learning-disabled...

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