Wynne v. Tufts University School of Medicine

• Citation: 932 F.2d 19
• Decision Date: 06 December 1990
• Docket Number: No. 89-1670,89-1670
• Parties: , 67 Ed. Law Rep. 497 Steven WYNNE, Plaintiff, Appellant, v. TUFTS UNIVERSITY SCHOOL OF MEDICINE, Defendant, Appellee. . Reheard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 19

932 F.2d 19

59 USLW 2644, 67 Ed. Law Rep. 497

Steven WYNNE, Plaintiff, Appellant, v. TUFTS UNIVERSITY SCHOOL OF MEDICINE, Defendant, Appellee.

No. 89-1670.

United States Court of Appeals First Circuit.

Reheard Dec. 6, 1990.

Decided April 17, 1991.

Robert Leroux Hernandez, Malden, Mass., for plaintiff, appellant.

Alan D. Rose with whom James B. Conroy, David A. Bunis, and Nutter, McClennen & Fish, Boston, Mass., were on brief, for defendant, appellee.

Jeffrey Swope, Jeffrey F. Jones, Margaret Wood Hassan, Zick Rubin, and Palmer & Dodge, Boston, Mass., on brief, for Babson College, Boston University, College of the Holy Cross, Johns Hopkins University, Massachusetts Institute of Technology, and the Ass'n of American Medical Colleges, amici curiae.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, TORRUELLA, SELYA and CYR, Circuit Judges.

COFFIN, Senior Circuit Judge.

This appeal addresses the obligation of an academic institution, a university medical school, when it seeks to demonstrate as a matter of law that there is no reasonable means available to accommodate a handicapped person within the meaning of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 ("the Act").

Appellant Steven Wynne was dismissed from Tufts University School of Medicine after failing numerous courses during successive attempts to complete the first-year program. Wynne, who suffers from a learning disability subsequently diagnosed as dyslexia, claims that the University unlawfully discriminated against him because of his handicap, in violation of the Act, when it refused to modify its testing methods to accommodate his difficulties. He also asserted a state civil rights claim.

The district court granted summary judgment for the University on both claims. It held, with reference to the federal claim, that Wynne was not an "otherwise qualified" handicapped person within the protection of the Act, because he was not able to meet the school's requirements. With reference to the Massachusetts civil rights claim, it held that there was no showing that Wynne had been "threatened, coerced or intimidated," as required by Mass.Gen. Laws Ann. ch. 12, Secs. 11H, 11I.

A panel of this court reversed, concluding that Tufts, on the record thus far made, had failed to show as a matter of law that it had no obligation under the Act to accommodate Wynne's handicap by altering its testing methods. It also held that as to one requirement imposed on Wynne, that of auditing courses he previously had passed, there remained a factual dispute sufficient to bar summary judgment on the civil rights claim. Subsequently, Tufts' petition for rehearing en banc was granted, supplemental memoranda filed, and oral argument held.

We shall first set forth the relevant facts, then a framing of the issue, followed by a legal analysis of the requirements of the Rehabilitation Act as they interact in a university context with the dictates of professional academic judgment. We then, finally, shall assess the adequacy of the evidence offered by Tufts to support summary judgment. We discuss separately the disposition of Wynne's claim under the Massachusetts Civil Rights Act.

I. The Facts

Appellant Wynne, although possessing lower MCAT (Medical College Aptitude Test) scores and undergraduate grades than most Tufts students, was admitted under the school's affirmative action program for minority applicants in 1983. In December of that year he became aware of his difficulty in dealing with written multiple choice examinations; the following spring he had conversations with school officials about his difficulty. At the end of his first year he had failed eight of fifteen courses. Although the school's guidelines provide for dismissal after five course failures, and the Student Evaluations and Promotions Committee and the Student Appeals Committee had both voted to dismiss Wynne, the dean decided to permit him to repeat the first-year program.

During the summer between his first and second years, Wynne underwent a neuropsychological evaluation at the request of the medical school, which arranged and paid for the test. The psychologist began by noting that Wynne had described having difficulties with multiple choice examination questions and experiencing more success on practicum, laboratory, or applied sections of his courses. She summarized his neuropsychological profile as follows:

[E]valuation reveals average general cognitive abilities with marked variability among individual skills. Significant strengths were noted in conceptual thinking and reasoning abilities. In contrast, Mr. Wynne encountered serious difficulties processing discrete units of information in a variety of domains, both verbal and non-verbal. Formal language testing revealed insecurities in linguistic processing including inefficient retrieval and retention of information. This type of neuropsychological profile has been identified in the learning disabled population. ¹

The difficulties identified by the psychologist impaired Wynne's ability to answer multiple-choice questions, even though he did manage to pass several such examinations. A reading specialist who worked with him after he was dismissed from medical school observed that he had difficulty interpreting "Type K" multiple-choice questions because of their structure, which often includes passive constructions and double and triple negatives.

Wynne began his second exposure to the first-year program with the assistance of counselling, tutors, note-takers, and taped lectures, the nature, quantity, and regularity of which are presently subjects of considerable dispute. In addition to retaking the seven courses he had failed, Wynne also was required to attend classes and take exams in three courses he had passed with low-pass scores. At the end of the year he passed all but two courses, Pharmacology and Biochemistry. The Student Evaluations and Promotions Committee permitted him to take make-up exams in these two courses. He subsequently passed Pharmacology but failed Biochemistry for the third time. The two committees, Student Evaluations and Student Appeals, recommended dismissal and the dean agreed. Wynne was dismissed from the medical school in September 1985.

In 1986 Wynne filed a complaint with the United States Department of Education Office for Civil Rights alleging discrimination. On January 12, 1987 that office issued its report, finding no discrimination. A year later Wynne filed suit, alleging that Tufts' treatment of him constituted discrimination on the basis of his handicap. Although the record contains references to various supposed faults in Tufts' response to his disability, ² Wynne's brief on appeal ties his claim of discrimination solely to the school's failure to offer an alternative to written multiple choice examinations. We therefore treat the appeal as limited to this issue.

II. Framing the Issue

The district court initially denied Tufts' motion for summary judgment because "questions of fact remain regarding both the reasonableness of the accommodations made by the defendant and the extent to which defendant adhered to the program it did devise for plaintiff." Tufts moved for reconsideration, arguing that "[i]f the only remaining questions of fact concern the reasonableness of Tufts' accommodations and the extent to which Tufts adhered to those accommodations, then Tufts is entitled to judgment as a matter of law. If Mr. Wynne is not an 'otherwise qualified handicapped individual,' then it is immaterial for Rule 56 purposes whether Tufts made reasonable accommodations or adhered to them."

Wynne opposed reconsideration, arguing that "he would be able to satisfy defendant's reasonable academic requirements but for its refusal to accommodate him in the means of testing." The district court subsequently allowed the motion for reconsideration and also the motion for summary judgment, saying:

The record is undisputed that plaintiff failed eight of fifteen courses during his first year; he again failed two of the eight when he repeated the first year and one, biochemistry, a third time. "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406 [99 S.Ct. 2361, 2367, 60 L.Ed.2d 980] (1979). Since plaintiff clearly has not been able to meet the academic requirements of defendant school, he cannot be deemed to be "otherwise qualified." Accordingly, a cause of action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1987), does not lie.

The narrow issue before us is the propriety, on this record, of the grant of summary judgment to defendant on the ground that plaintiff was not an "otherwise qualified" handicapped person within the meaning of the Act and the relevant caselaw. Our task is therefore to determine, viewing the evidence in the light most favorable to Wynne, whether he has at least managed to create a genuine and material factual issue regarding his qualifications to pursue a Tufts medical education. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir.1990).

Before we proceed farther, we pause to underscore the technical procedural issue posed by the posture of this appeal. We do so because of the expansive claims made by the parties and amici on behalf of the rights of handicapped persons under the Act on the one hand and on behalf of academic freedom on the other. At this stage we venture no opinion, directly or indirectly, concerning the merits of appellant's claims or appellee's defenses.

III. The Rehabilitation Act and Caselaw: Institutional Obligations

Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with handicaps in...