Guckenberger v. Boston University

• Decision Date: 28 January 1997
• Docket Number: Civil Action No. 96-11426-PBS.
• Citation: 957 F.Supp. 306
• Parties: Elizabeth GUCKENBERGER, et al., Plaintiffs, v. BOSTON UNIVERSITY; and Jon Westling, John Silber and Craig Klafter, in their official capacities, Defendants.
• Court: U.S. District Court — District of Massachusetts

957 F.Supp. 306

Elizabeth GUCKENBERGER, et al., Plaintiffs, v. BOSTON UNIVERSITY; and Jon Westling, John Silber and Craig Klafter, in their official capacities, Defendants.

Civil Action No. 96-11426-PBS.

United States District Court, D. Massachusetts.

January 28, 1997.

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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, Clark, Hunt & Embry, Cambridge, MA, for Plaintiffs.

Lawrence S. Elswit, Office of General Counsel, Boston, MA, Michael B. Rosen, Office of General Counsel Boston University, Alan D. Rose, Alden D. Rose, Jr., Rose & Associates, Boston, MA, Erika Geetter, Boston University Office of General Counsel, for Boston University.

Lawrence S. Elswit, Office of General Counsel, Boston, MA, Michael B. Rosen, Office of General Counsel Boston University, Alan D. Rose, Alden D. Rose, Jr., Rose & Associates, Boston, MA, for Jon Westling, Craig Klafter.

Dale C. Kerester, Jager, Smith, Stetler & Arata, Boston, MA, for Loring Brinkerhoff.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

This is a proposed class action challenging the new policy adopted by defendant Boston University ("BU") to evaluate the requests of its students to accommodate their learning disabilities.¹ The plaintiffs — ten students with learning disabilities and four organizations² — claim that the defendants³ have violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 794, and state law. They seek injunctive, declaratory, and compensatory relief.

Plaintiffs challenge three aspects of BU's new policy as violative of state and federal anti-discrimination laws. First, they contend that BU has unreasonably erected a series of harsh eligibility requirements for students who seek accommodations for their learning disabilities, such as the requirement that all testing to document the disability must be no more than three years old and must be performed only by a licensed psychologist or a physician. Second, plaintiffs allege that BU has subjected the students' accommodation requests to an unfair evaluation and appeal procedure. Third, plaintiffs assert that the university has imposed a discriminatory blanket prohibition against course substitutions for mathematics and foreign language. In addition to the discriminatory treatment claims based on the university's new accommodations policy, plaintiffs allege that defendants have created a hostile learning environment for learning-disabled students, that the university has breached its contractual agreement to provide reasonable accommodations for such students, and that the named students with learning disabilities at BU have suffered severe emotional distress due to the university's intentional refusal to deliver on those promises.⁴

Plaintiffs now move for class certification. Defendants oppose plaintiffs' motion and, pursuant to Fed.R.Civ.P. 12(b)(6), move to dismiss a majority of the plaintiffs' eight claims, the four associational plaintiffs, and two of the named defendants. Defendants argue that the allegations of the complaint fail to support plaintiffs' claims for hostile environment discrimination (Count IV), breach of contract (Count V), promissory estoppel (Count VI), and intentional infliction of emotional distress (Count VII). Defendants also assert that the associational plaintiffs lack standing, and that defendants Silber and Klafter are improper parties. For the reasons set forth below, defendants' motion to dismiss is ALLOWED IN PART and DENIED IN PART, and plaintiffs' motion for class certification is ALLOWED.

II. FACTUAL ALLEGATIONS

The allegations in the complaint that are relevant to the defendants' 12(b)(6) motion to dismiss and to the plaintiffs' motion for class certification are as follows.⁵

Boston University is a private institution of higher learning that is chartered and incorporated under the law of the state of Massachusetts. Prior to the 1995 — 1996 school year, students with learning disabilities who sought accommodations were required to provide BU's Learning Disabilities Support Services ("LDSS") with documentation of their disability. After reviewing the documentation, LDSS would determine which accommodations were appropriate. Authorized accommodations included tape-recorded text-books, note-taking assistance, special testing accommodations, reduced course loads, and course substitutions for the mathematics and foreign language requirements. In its promotional materials, BU represented its commitment to accommodating learning-disabled students and stated that the services and accommodations provided by LDSS would be available throughout the academic career of a student with a documented learning disability.

During the 1995 — 1996 school year, 480 students with learning disabilities were enrolled at BU. Yet, as in prior years, only a small percentage of the total number of learning disabled students asked for and received an accommodation for their disabilities. For example, from 1990 to 1995, BU allowed an average of 15 students per year to accommodate their disabilities by substituting other courses for math and foreign language.

In December of 1995, just prior to final exams, certain BU students with learning disabilities were sent a letter from LDSS notifying them of a new policy regarding their eligibility for accommodations. Students were told that their medical documentation had to have been completed within the preceding three years by a licensed psychologist or a physician "of reputable practice," and that they had until January 8, 1996 to submit test results that satisfied this new criteria if they were to remain eligible for accommodations. BU extended the deadline for submission of new documentation to August 31, 1996 in a letter dated December 22, 1995; however, other aspects of the university's new policy went into effect during the 1995 — 1996 school year, including its revised evaluation procedure.

Under the new evaluation scheme, a request for accommodation that has been submitted by a student with a learning disability is subjected to several tiers of review. A student is required, first, to submit to LDSS a recent physician's or psychologist's report. LDSS reviews the documentation, makes a recommendation regarding the student's request, and forwards the application to the president's office. BU's president, currently Jon Westling, then reviews the application de novo. When this reevaluation is complete, the president's office notifies LDSS of the chief administrator's decision, and LDSS notifies the student of the university's position regarding accommodations for the student's disability. There is no avenue of appeal for students whose applications for accommodation have been denied by the president.⁶ Most significantly, under the new policy, a student with a learning disability will not be accommodated with a course substitution of any kind under any circumstances.

President Westling, who has no expertise in learning disabilities or accommodations, is the final arbiter of student requests under the new policy. He personally denied twenty-six out of twenty-seven student requests for accommodation under the university's new evaluation procedure during the 1995 — 1996 school year. Several students were denied access to the same accommodations that they had been receiving from the university prior to the implementation of the new policy.

Moreover, in two speeches, delivered in Australia and before the Heritage Foundation in Washington, D.C., President Westling referred to students with learning disabilities as "a plague," and an indication of "a silent genetic catastrophe," and he has made similar statements in letters to the New York Times, the Boston Globe, campus newspapers, and students' parents. Other administrators at BU, including Westling's assistant, Craig Klafter, have also made derogatory comments, such as referring to students with learning disabilities as "draft dodgers."

Students with learning disabilities at BU subjectively perceive the university to be a hostile educational environment for the learning-disabled. Plaintiffs claim they have suffered a loss of educational and professional opportunity, and their physical, mental, and emotional well-being has been irreparably harmed.

III. MOTION TO DISMISS

A. Dismissal of Claims

"Like a battlefield surgeon sorting the hopeful from the hopeless, a motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law." Iacampo v. Hasbro Inc., 929 F.Supp. 562, 567 (D.R.I.1996). The standard for dismissal of claims under Federal Rule of Civil Procedure 12(b)(6) is clear: a complaint should not be dismissed for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)); accord Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir.1996). Although the court must take the factual averments of the complaint as true and draw all reasonable inferences in favor of the plaintiff, see Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992), it is not required to "accept every allegation made by the complainant[] no matter how conclusory or generalized." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992). "`[E]mpirically unverifiable' conclusions, not `logically compelled, or at least supported, by the stated facts,' deserve no deference." Id. (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989)).

1. Hostile Learning Environment (Count IV)

Plaintiffs contend that ...