In re Testing Accommodations of Lafleur

• Decision Date: 20 September 2006
• Docket Number: No. 23701.,23701.
• Parties: In re REASONABLE TESTING ACCOMMODATIONS OF Terry Lee LAFLEUR.
• Court: South Dakota Supreme Court

722 N.W.2d 559

2006 SD 86

In re REASONABLE TESTING ACCOMMODATIONS OF Terry Lee LAFLEUR.

No. 23701.

Supreme Court of South Dakota.

Argued April 25, 2006.

Decided September 20, 2006.

Dominic M. Smith, South Dakota Advocacy Services, Sioux Falls, South Dakota, Attorney for applicant and appellant.

James D. Leach, Board of Bar Examiners Rapid City, South Dakota and Lawrence E. Long, Attorney General, Robert Mayer, Deputy Attorney General, Pierre, South Dakota, Attorneys for Board of Bar Examiners and appellee.

ZINTER, Justice.

[¶ 1.] Terry Lee LaFleur failed to pass the South Dakota bar examination on three occasions. On his last attempt, he failed even though the South Dakota Board of Bar Examiners granted his request for accommodations under the Americans with Disabilities Act (ADA). Those accommodations included time and one half to take the exam and a private, distraction free room. Prior to a fourth attempt, LaFleur requested double time and other accommodations, but the Board only granted the accommodations provided on the third attempt. LaFleur appeals. We affirm.

Facts and Procedural History

[¶ 2.] LaFleur attended Thomas M. Cooley School of Law. The school is located in Lansing, Michigan and is accredited by the American Bar Association. While in law school, LaFleur experienced difficulties maintaining acceptable grades and was placed on academic probation. He underwent psychological testing by Dr. Robert J. Fabiano. Dr. Fabiano diagnosed Attention Deficit Hyperactivity Disorder (ADHD) (Inattentive Type) and Major Depressive Disorder (Single Episode, Mild). Thereafter, LaFleur received special accommodations in law school, including additional time to take examinations and the use of a private testing room. With these accommodations, LaFleur met the requirements for graduation.

[¶ 3.] After graduation, LaFleur applied to take the July 2002 South Dakota bar examination. In his application, LaFleur requested accommodations for his ADHD. He requested time and a half, use of a private and distraction free room, rest periods, and a tape recorder. The Board Secretary denied LaFleur's request. LaFleur failed that exam.

[¶ 4.] LaFleur next applied for the February 2003 examination. This time, LaFleur did not request any accommodations. He again failed.

[¶ 5.] A week later, LaFleur applied for the July 2003 examination. On this third application, LaFleur requested accommodations of time and a half, use of a private and distraction free room, rest periods, and a tape recorder. The Board Secretary again denied this request. LaFleur, however, appealed that decision to the full Board, and an administrative hearing was scheduled. The day before the hearing, the Board granted LaFleur's requested accommodations. Although the Board granted LaFleur's requested accommodations, he withdrew from the July 2003 examination.

[¶ 6.] LaFleur then applied for the February 2004 examination and requested the same accommodations, including time and a half. He took the February 2004 examination with his requested accommodations but failed by four points.

[¶ 7.] LaFleur subsequently petitioned this Court for permission to take the exam for a fourth time.¹ After we granted his petition, LaFleur again requested accommodations. The Board Secretary asked LaFleur to update his medical records supporting his request. LaFleur complied and sought an updated psychological evaluation at the University of South Dakota Counseling Center. Mr. Michael Fendt, a university doctoral student and licensed psychologist in Minnesota, performed the evaluation under the authority and supervision of Dr. Matt Stricherz, Ph.D., a licensed psychologist. The evaluation indicated that LaFleur had a reading disorder and Attention Deficit Disorder (ADD) (Combined Type).

[¶ 8.] Based on the updated psychological evaluation, LaFleur applied for the July 2005 examination and requested new accommodations. This time he requested: double time on all subtests; testing over a four day period rather than two days; testing to be conducted in the mornings into the early afternoon; a private, distraction free room; use of colored pens and a ruler; and use of scratch paper.² In support of this request, LaFleur submitted a form documenting his disability. LaFleur's submission indicated that he had "difficulty following written and oral directions, disorganization, inattention, distractibility, and hyperfocusing adversely impact[ing] verbal processing under time tested conditions." LaFleur also submitted Mr. Fendt's psychological evaluation report, which indicated that LaFleur had "difficulty sustaining attention in academic tasks, conversations with people, and problems staying focused at work." The report further indicated that LaFleur had "difficulties following through on instructions at home, work, and at school, and failing to complete his responsibilities in these environments" and that LaFleur "would easily be distracted by external and internal stimuli, and ... [had] great difficulty organizing tasks."

[¶ 9.] Although the Board Secretary denied LaFleur's new requests for accommodations, including double time, she granted time and a half and a private room. LaFleur again requested an administrative hearing before the Board. Following the hearing, the Board issued findings of fact and conclusions of law only allowing the previously provided accommodations. LaFleur appeals arguing that the Board violated the ADA in failing to provide his requested accommodations.

Standard of Review

[¶ 10.] "[U]nder SDCL 16-16-16, this Court is the final arbiter of the decisions of the Board of Bar Examiners, and as such, we can accept or reject the Board's conclusion." Application of Widdison, 539 N.W.2d 671, 675 (S.D.1995) (citing Application of Shemonsky, 379 N.W.2d 316, 318 (S.D.1985)). We generally apply the "de novo standard of review to both questions of law and fact in all bar admission cases." Id. (rejecting admission to State Bar for failure to demonstrate good moral behavior). See also In re Ogilvie, 2005 SD 65, 698 N.W.2d 78 (lacking the required good moral character); In re Yanni, 2005 SD 59, 697 N.W.2d 394 (reversing Board's refusal to admit applicant without examination). However, this case does not involve these types of questions relating to an applicant's eligibility for admission to the Bar. This case involves more academic and technical questions regarding testing matters for an examination that the Board administers. In analogous cases where "the accommodation involves similar academic decisions, `courts [have] show[n] great respect for the [academic officials'] professional judgment.'" See Mershon v. St. Louis Univ., 442 F.3d 1069, 1078 (8thCir.2006) (quoting Amir v. St. Louis Univ., 184 F.3d 1017, 1028 (8thCir.1999) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523, 532 (1985))). We agree that in such matters, we should give "due weight" to the Board's administrative decisions and will not substitute our own notion of exam policy. See Gill v. Columbia 93 School Dist., 217 F.3d 1027, 1037 (8thCir.2000) (citing Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690, 712 (1982)).

Decision

[¶ 11.] The ADA is a federal civil rights act that is "designed to provide comprehensive protection for disabled individuals against discrimination based on their disabilities." Theriault v. Flynn, 162 F.3d 46, 47-48 (1stCir.1998). This comprehensive act is designed "to eliminate disability discrimination on three fronts: employment (Title I, 42 USC §§ 12111-12117); public services offered by public agencies (Title II, 42 USC §§ 12131-12165); and public services and accommodations offered by private entities (Title III, 42 USC 12161-12189)." Martin v. Taft, 222 F.Supp.2d 940, 966 (S.D.Ohio 2002). LaFleur alleges a violation under Title II, which provides in part:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such agency.

42 USC § 12132. "The protection afforded [under Title II of] the ADA is characterized as a guarantee of `meaningful access' to government benefits and programs, which broadly means that public entities must take reasonable steps to ensure that individuals with disabilities can take advantage of such public undertakings." Theriault, 162 F.3d at 48 (citations omitted).

[¶ 12.] LaFleur contends that the Board violated Title II by failing to approve his requested accommodations and, in particular, his request for double time to take the exam. In order to prevail on this claim, LaFleur "must show (1) that [he] is disabled, (2) that [his] requests for accommodations [were] reasonable, and (3) that those requests have been denied." D'Amico v. New York State Bd. of Law Exam'rs, 813 F.Supp. 217, 221 (W.D.N.Y. 1993). See also Cox v. Alabama State Bar, 330 F.Supp.2d 1265, 1267 (M.D.Ala. 2004). In the analogous Title III setting, the Eighth Circuit further explained that under the reasonable accommodation requirement: a plaintiff must show "that the defendant failed to make reasonable modifications that would accommodate the plaintiff's disability without fundamentally altering the nature of the public accommodation." Amir, 184 F.3d at 1027 (emphasis added) (citations omitted). The Board has conceded that it is a public entity, that LaFleur is disabled, and that his requested accommodations were denied. Therefore, the question is whether LaFleur proved that the Board failed to make reasonable accommodations that would accommodate his disability.

[¶ 13.] LaFleur first claims that in light of Mr. Fendt's evaluation, LaFleur's requested accommodations were reasonable, and therefore, the Board was required to implement those accommodations unless the Board proved that the accommodations would...