The Catholic University of America

Selected Recent Case Law Under the ADA:

NB: There are also cases on the ADA employee page that may be relevant to student issues. See

California Department of Fair Employment and Housing v. LSAC, No. c-12-1830 (4-22-13) Order Granting Motion, ND Calif. ) Suit against Law School Admissions Council may proceed without filing a motion for class certification under Federal Rule of Civil Procedure 23 (Rule 23). DFEH brought this action against LSAC on behalf of seventeen named individuals and all disabled individuals in California who requested a reasonable accommodation for the LSAT. DFEH claims that LSAC failed to provide disability-related accommodations to test takers and, therefore, denied them “full and equal access to the LSAT” in violation of state and federal laws.Also in dispute was flagging of test scores of those who take the LSAC.

Singh v. George Washington University School of Medicine, Case No. 09-7032, Court of Appeals, D.C. Circuit, Decided Dec. 9, 2011.

In this decision in a long running case, the court upheld the lower court finding that Singh had failed to meet her burden of demonstrating her impairment caused her limitiation on learning. For a summary of the court's ruling see the Inside Higher Ed article titled *How to Define Disability* posted on Dec. 12, 2011.

Jenkins v. National Board of Medical Examiners, (6th Cir. Feb. 11, 2009)

The plaintiff in this case was a third year medical student seeking additional time on the US Medical Licensing Exam as an accommodation for a reading disorder. The National Board of Medical Examiners had denied his request, even though the plaintiff had received extra time on the ACT and MCAT exams. The plaintiff sued for injunctive relief and lost at the District Court level.

In reliance upon Toyota Motor, the district court found Jenkins did not qualify as disabled. The Court of Appeals held the ADA amendments apply to this case as it was pending on appeal when the amendments became effective. The 6th Circuit remanded the case back to the district court to determine if slow and labored reading is a substantial limitation under the newly amended law.

Singh v. George Washington University School of Medicine, Case No. 09-7032, United States Court of Appeals for the DC Circuit, Appeal from the U.S. District Court for DC.
Brief Amici Curiae, filed by American Council on Education, Association of American Medical Colleges, Graduate Mgt. Admission Council, American University, The Catholic University of America, Howard University, and University of the District of Columbia. The issue in this case is whether an appellant's learning impairment substantially limited her ability to learn; and more specifically, whether in such a case, academic achievement precluded a disability finding. This brief argues that the appropriate comparator for a finding of substantially limited is the average person in the general population, not other classmates in medical school. The brief also addresses some of the limitations of testing as it relates to learning disabilities.

Enyart v. National Conference of Bar Examiners, No. 10-15286 &16392, (9th Cir. Court of Appeals, January 4, 2011)

Enyart is a legally blind law school graduate who wished to sit for the MPRE and the Multistate Bar Exam (MBE)using a computer equipped with JAWS and ZoomText. The State Bar of California wished to provide the accommodations, but the National Conference of Bar Examiners (NCBE) refused to make the MPRE and MBE available in electronic format. After repeated attempts to obtain the requested accommodations, Enyart sued the NCBE, ACT (the testing company used by NCBE), and  the State Bar of California, alleging violations of the ADA and the Uhruh Act (California's civil right's law). The plaintiff moved for a preliminary injunction, which was granted by the court, allowing her to take the exams using the assistive software. NCBE appealed, but the 9th Circuit affirmed the lower court holding, finding no abuse of discretion.

Plaintiff and her physician had presented evidence that the alternative accommodations offered by NCBE did not permit her to fully access the test material, and that some of them resulted in serious physical discomfort.

In reviewing the facts of the case, the court looked at 42 USC § 12189, part of Title III of the ADA, and also at 28 CFR § 36.309. The regulation states in part as follows: 

Any private entity offering an examination covered by this section must assure that . . . [t]he examination is selected and administered so as to best ensure that, when the examination is administered to an individual with a disability that impairs sensory, manual, or speaking skills, the examination results accurately reflect the individual’s aptitude or achievement level or whatever other factor the examination purports to
measure, rather than reflecting the individual’s impaired sensory, manual, or speaking skills . . . [.]

The court made the following statements of note in issuing the ruling in the case:

Applying 28 C.F.R. § 36.309’s “best ensure” standard, we conclude that the district court did not abuse its discretion by holding that Enyart demonstrated a likelihood of success on the merits. The district court found that the accommodations offered by NCBE did not make the MBE and MPRE accessible to Enyart. This finding is supported by evidence that Enyart would suffer eye fatigue, disorientation, and nausea if she used a CCTV, so CCTV does not best ensure that the exams are accessible to her; that auditory input alone is insufficient to allow Enyart to effectively comprehend and retain the language used on the exam; and that, according to Enyart’s ophthalmologist, the combination of ZoomText and JAWS is the only way she can fully comprehend the material she reads.****

NCBE also argues that because it offered to provide auxiliary aids expressly identified in the ADA, the regulations, a DOJ settlement agreement, and a Resolution of the National Federation for the Blind, courts should not require it do more.We do not find this argument persuasive. The issue in this
case is not what might or might not accommodate other people with vision impairments, but what is necessary to make the MPRE and MBE accessible to Enyart given her specific impairment and the specific nature of these exams. As NCBE concedes, the lists of auxiliary aids contained at
42 U.S.C. § 12103 and at 28 C.F.R. § 36.309 are not exhaustive.****

As we have tried to make clear already, accommodations that make an exam accessible to
many blind people may not make the exam accessible to Enyart, and our analysis depends on the individual circumstances of each case, requiring a “fact-specific, individualized analysis of the disabled individual’s circumstances.” Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999).


 Steere v. George Washington University School of Medicine, Case No. 03-1900, 2006 WL 1897223, Decided July 12, 2006 Appeal Dismissed by Steere v. George Washington University School of Medicine and Health Sciences, 2007 WL 3230173 (D.C.Cir. Oct 23, 2007)

In this decision, the U.S. District Court for the District of Columbia found that a medical student failed to show he was disabled, as required by the ADA. Stressed in this decision, and in the companion decision in Singh below is that a mere diagnosis is not enough to establish a disability. Rather, the plaintiff must show the extent of the limitation in the terms of their own experience. Late in the game, as he was about to be dismissed for poor academic performance, the plaintiff came up with a diagnosis of ADHD and a math learning disorder. While the school had allowed plaintiff to retake a number of courses, the Dean of the Medical School failed to consider the plaintiff's new evidence of a disability before dismissing him from the Medical School. The lower court had held against the university, but the District Court issued judgement for the university.

In dismissing plaintiff's claim that he qualifed as disabled under the law, the court found as follows:

Although this Court accepts that ADHD could certainly affect plaintiff's ability to complete time-pressured multiple choice exams, it does not find that such a diagnosis is consistent with his success on various other academic tasks--undoubtedly some of them requiring concentration--on which he has repeatedly excelled. In any event, it is not consistent with a determination that any impairment substantially affects a major life activity. To the contrary, plaintiff appears quite able to succeed in the major life activity of learning, including test-taking in general.

Similarly, this Court is unconvinced that plaintiff's relatively recent academic difficulty is more likely than not due to ADHD. In his testimony, plaintiff seized upon his claimed learning disorder to explain why he was unable to convey on tests the material he knew that he had learned (see, e.g., Trial Tr. 12/7/05 at 22-24, 36-37, 40, 159), but this Court finds, first, that such a discrepancy is not necessarily so unusual in competitive educational environments that it requires some external explanation; and second, that it could be explained by many other factors. Test anxiety, personal struggles, lack of attention to detail, poor studying habits, lack of motivation, poor health, insufficient time devoted to studying --any or all of these factors might explain plaintiff's poor performance at GW and in the physical therapy program. That his poor performance has been a relatively recent phenomenon further supports the conclusion that the cause is due to temporary circumstances rather than a lifelong disability that has impaired, and continues to impair, his ability to perform in academic environments. Indeed, plaintiff's recent struggles are uncharacteristic in light of his academic record, and may simply reflect his inability to successfully adjust to new, more competitive tests. It is possible, even likely, that plaintiff either did not encounter such difficulties in prior, less competitive academic environments, or simply that, in the past, he was better able to compensate for them.

On the burden that the student would have to meet in proving disability, the court continued with this language:

While the preponderance standard does not require plaintiff to rule out every other possible explanation, he must demonstrate that his explanation is more likely than not true. Since this Court finds, however, that many other explanations remain plausible, this Court is not persuaded that plaintiff suffers from a disability as defined by the ADA that has substantially limited his academic performance. The report and testimony of Dr. Kaplan, on which plaintiff heavily relies, is insufficient to convince the Court for two reasons. First, this Court does not find Dr. Kaplan's testimony and report to be sufficient, in light of the relatively sparse corroborating evidence, to establish plaintiff's claim that he suffers from ADHD. Dr. Kaplan appeared to this Court as generally competent, but she failed to demonstrate that she based her diagnosis of plaintiff on valid and reliable sources....Additionally, it is not clear that Dr. Kaplan sufficiently ruled out the effect that plaintiff's other conditions might have had on the test results.

Although the court held for GW, a note of caution about the decision making process was issued to the school:

As a final note, the Court would like to caution defendant that, as an educational institution, it is obligated to provide reasonable accommodations to students who demonstrate that they are entitled to them under the ADA. Defendant's practice of dismissing a student after receiving documentation of the student's disability -- and without even considering whether the disability exists -- is imprudent given the possibility that the student actually does suffer from a disability under the ADA. If the request for reasonable accommodations is received prior to the official dismissal, as it was in this case, defendant must consider it before issuing its final decision whether to dismiss the student. This is necessary not only so that defendant can avoid being held liable in a lawsuit where a plaintiff prevails, but also because defendant ought to be concerned about whether students truly have learning disabilities. A well-regarded institution of higher learning, such as George Washington University, should be committed to the success of all its students, and surely that entails a sincere evaluation of their abilities and needs before issuing a decision to dismiss them.


Singh v. George Washington University School of Medicine (No. 06-7133) (U.S.C.A. DC) Decided Dec. 4, 2007)

The court revisited four interlocutory rulings rendered at the summary judgment phase, that were objected to by GW, as follows: (1) that the district court chose the wrong comparison group by which to measure Singh's "substantial limitation"; (2) that the court misidentified the relevant "major life activity"; (3) that Singh's request to GW for reasonable modifications under Title III was untimely; and (4) that Singh is not "otherwise qualified" to attend GW, even with reasonable modifications to the University's program.

The court resolved issues (1) and (2) in favor of GW, and issues (3) and (4) in favor of Singh.

On substantial limitation, the court found the relevant comparison group is the average person in the general population, not someone's peer group, in this case medical students. In so holding, the court referred to EEOC guidance on substantially limited at 29 CFR 1630.2 (an average person in the general population) and DOJ guidance at 28 CFR Part 36, app. B (can be performed in comparison to most people). The court, without deciding what respect these regulations were due, also noted that all sister circuits addressing the issue had adopted the average person standard.

Major Life Activity: The court found test taking is not a major life activity, although did note it would be relevant in terms of determining the extent to which she is substantially impaired in the major life activity of learning.

Timeliness: GW had an obligation to consider Singh's claim for the need for accommodation even though it came late in the day (after she was dismissed).

Otherwise qualified: The court did not address the substantive legal argument here, but ruled against GW on a procedural point, thus leaving the issue for further factfinding at the trial level.

Singh v. George Washington University School of Medicine, 439 F.Supp.2d 8, 33 NDLR P 13 (D.D.C. Jul 12, 2006) (NO. CIV.A. 03-1681)
This case also involved a failing medical student who was allowed a chance to retake a number of courses at GW. When her academic progress failed to meet standards, she was called before the Medical Student Evaluation Committee (MSEC). This committee can recommend dismissal. At this point plaintiff sought testing to see if she might have a learning impairment. A report by a psychologist stating that she had a reading disorder and a mild processing speed disorder were sent to the Dean in February of 2003. While the Dean read the report, it did not alter his decision to dismiss the plaintiff. She brought suit. At the lower court level, the court held her request for accommodations was timely, and that the second chance doctrine did not defeat her claims. The District Court held that her problems were not a disability under the ADA.

The findings of fact included notes that the plaintiff had learned to read at age three, and had become a highly ranked competitive chess player at a young age. She graduated from high school at age 16. Throughout her struggles in med school, she received advice and consultation from numerous sources at GW on how to improve her performance, but failed to follow up on this advice.

In reviewing the nature and severity of plaintiff's disability, the District Court found that based upon the evidence presented at trial, she did not have a disability under the law. The court stated:

Based on the evidence presented at trial, this Court does not find that plaintiff has a disability as defined by the ADA and case law. This conclusion is compelled by the academic success she has enjoyed throughout her life, including her strength from a very young age in areas that require reading and comprehension under time pressure, such as reading and general coursework. Had she the disability that she claims to have, her achievement should have been more consistently impaired. Plaintiff was a student in competitive educational environments -- she took a competitive courseload of college preparatory courses at a top high school, and an even more competitive courseload of pre-medical classes at a top undergraduate institution -- and performed extremely well in almost every subject. While this Court accepts that a reading disability could affect plaintiff's ability to complete time-pressured multiple choice exams, it does not find that her enormous success in other reading and comprehending tasks -- undoubtedly some of them timed -- is consistent with a reading disorder which primarily manifests itself in limiting her reading speed. In any event, it is not consistent with a determination that the impairment substantially affects a major life activity. To the contrary, plaintiff appears quite able to succeed in the major life activity of learning, including test-taking in general.

The court also found the testimony of the plaintiff's expert to be not convincing, and preferred the testimony of the defendant's expert witness. Once again, the court cautioned GW against dismissing a student after being given documentation of a disability (see Steere above).

Bartlett v. Board of Bar Examiners, (2001 WL 930792 S.D.N.Y., 2001) On Aug. 15, 2001 Judge Sonia Sotomayor of the Southern District of New York ruled that Marilyn Bartlett was entitled to reasonable accommodations in taking the New York State Bar Exam, and that her dyslexia is such that it substantially limits her in the major life activity of reading when compared to most people, qualifying her as a person with a disability under the ADA. In the alternative, the Court found that Bartlett is substantially limited in the major life activity of working because she has shown that her reading impairment is a substantial factor in her failing the bar examination. In addressing the case on remand, the Court considered the issue of corrective devices and mitigating measures. See Sutton v. United Air Lines, 527 U.S. 471 (1999) and a companion case, Albertsons, Inc. v. Hallie Kirkingburg, 119 S. Ct. 2162 (1999) both summarized below.

After these two decisions, courts determining whether the limitations an individual with an impairment actually faces are in fact substantially limiting, must consider any effects of mitigating measures (or corrective devices), both positive and negative, when reaching a determination. A question left open post- Sutton, was what mitigating measures must actually be considered. Judge Sotomayor followed the lead of a number of lower courts in ruling that only those measures that affect the plaintiff's actual ability to read should be considered. For example, the fact that plaintiff uses an index card to follow the text was considered, but the fact that she participated in study groups as a way of accessing the class material was not considered. The Court held that Ms. Bartlett was entitled to double the normally allotted time on the bar exam, spread over four days, the use of a computer, permission to circle multiple choice answers in the examination booklet, and large print on both the New York State and Multistate Bar Examinations. For prior history of this case, see below.

PGA Tour, Inc.v Martin, 121 S. Ct. 1879 (2001). On May 29, 2001, in the case of the U.S. Supreme Court strongly chastised the PGA Tour for failing to consider golfer Casey Martin's request to use a golf cart while playing in a professional tournament. In addition to being an excellent golfer, Martin qualifies as an individual with a disability under the Americans with Disabilities Act. He has Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart. Walking causes him pain, fatigue, anxiety, and creates a risk of hemorrhage, blood clots and fracturing of his tibia.

As a player on the Stanford University golf team, Martin was granted a waiver of the NCAA and Pacific 10 Conference rule that players walk and carry their own clubs. In contrast, the PGA Tour Inc. refused to grant Martin's request to waive the walking rule for the PGA tournament.

In a 7-2 decision, authored by Justice John Paul Stevens, the Court upheld the decision by the Federal Appeals Court in San Francisco that allowing Martin to use a golf cart was a reasonable modification and would not fundamentally alter the game of golf. The PGA had argued that walking is a substantive rule of the competition that serves the purpose of injecting fatigue into the competition. The Court rejected this argument, noting that the walking Martin would need to undertake to actually make his shots, in combination with his disability, combined to create at least as much fatigue as that endured by the other competitors.

The Court also held that PGA's golf tours and qualifying rounds clearly fall within the definition of "any place of public accommodation" under Title III of the ADA.

In closing, the Court stressed the law requires consideration of each individual's situation:

"But surely, in a case of this kind, Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose, as well as the letter, of the rule before determining that no accommodation would be tolerable."

Bartlett v. New York State Board of Law Examiners, 2000 U.S. App. LEXIS 22212 (2nd Cir. Aug. 30, 2000).

Following its decisions in Sutton v. United Air Lines, 527 U.S. 471 (1999) (see below), and a companion case, Albertsons, Inc. v. Hallie Kirkingburg, 119 S. Ct. 2162 (1999) (see below), the Supreme Court vacated and remanded the decision in Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998), 119 S. Ct. 2388 (1999). Bartlett had applied for but was denied accommodations in taking the New York State Bar Exam. The issue in the Bartlett case involved learning disabilities, and whether extra time in taking the New York State Bar Exam was an appropriate accommodation. In its 1998 decision, the Court of Appeals for the Second Circuit held that a person's ability to self-accommodate does not foreclose a finding of disability. In addition, the Court of Appeals held that the major life activity affected by her disability was reading and learning, as opposed to working, which had been the basis for the District Court's holding that an accommodation was necessary.

On remand, following the Supreme Court's decisions in Sutton and Albertsons, the Court of Appeals for the Second Circuit revisited the issue of whether Bartlett, who is dyslexic, is disabled under the Rehabilitation Act or the ADA. On August 30, 2000, the Court of Appeals held that, despite Bartlett's self-accommodations, she may be disabled under the law if her impairment substantially limits her with respect to the major life activity of reading. As phrased by the Court of Appeals, the following questions must be addressed by the District Court: 1) "whether Bartlett is substantially limited in the major life activity of reading by her slow reading speed, or by any other 'conditions, manner or duration' that limits her reading 'in comparison to most people'"; and, if necessary, 2) "whether [Bartlett] has shown that it is her impairment, rather than factors such as her education, experience or innate ability, that 'substantially limits' her ability to work." Bartlett, 2000 U.S. App. LEXIS 22212, *__. On the second question, the Court of Appeals distinguished the Bartlett case from Sutton, noting that "the number of lawyers practicing law, relative to the number of people holding a law degree, is surely larger in proportion to the number of global airline pilots relative to the number of people who hold a license to fly," concluding that "if an impairment bars a person with a law degree from practicing law, then that impairment is a disability under the ADA." Bartlett, 2000 U.S. App. LEXIS 22212, *__.

Gonzales v. National Board of Medical Examiners, No. 99-72190, 2000 Fed. App. 0277P, 2000 WL 1179798 (6th Cir. Aug. 22, 2000).

Plaintiff Gonzales, a student at the University of Michigan Medical School, challenged the National Board of Medical Examiners' (NBME) denial of a request for extra time on the "Step 1 Examination," administered by the NBME and a prerequisite to proceeding with the third year of medical school. Plaintiff had received accommodations as an undergraduate at the University of California, Davis, and at the University of Michigan Medical School, for a learning disability. The NBME expert found that plaintiff did not have a learning disability in reading, and that the data in the area of written language was insufficient to diagnose a written language disorder. The District Court found that plaintiff was not disabled under the ADA, as his performance in both reading and writing fell within the average to superior range when compared to most people. The District Court also opined that the plaintiff does not have a disability in the major life activity of working. The Court of Appeals for the Sixth Circuit pointed to the fact that plaintiff had taken the MCAT without accommodations and had been accepted to the University of Michigan Medical School. The Court of Appeals found that plaintiff was not substantially limited in a major life activity as compared to the average person within the population. One Judge filed a dissent, stating that the fact that plaintiff had adopted successful strategies to work around a reading impairment should not be used to deny plaintiff a needed accommodation. Given the Supreme Court's ruling in Sutton v. United Air Lines, 527 U.S. 471 (1999) (see below), other circuit courts of appeal will no doubt be addressing the impact of the ruling in Sutton on learning disabilities and self-accommodation for those disabilities.

McGuinness v. Regents of the University of New Mexico, 183 F.3d 1172 (10th Cir), cert. denied, 120 S. Ct. 332 (1999). See also 170 F.3d 974 (10th Cir. 1998) for text of lower court opinion. This case stands for the principle that anxiety, triggered by math and chemistry exams, is not a disability under the ADA. The medical student plaintiff in this lawsuit did not receive high enough grades in his first year of medical school, and refused the option of repeating that year. The court found that requiring the University of New Mexico to advance McGuinness to the next level of the medical school program would represent a substantial, rather than a reasonable accommodation. The case was decided before Sutton v. United Airlines (see below), but anticipated that holding by noting that a student who can mitigate anxiety by a different study regime does not have a disability. The court also noted that the plaintiff failed to demonstrate that his anxiety impeded his performance in a variety of disciplines.

Wong v. Regents of University of California 379 F.3d 1097; 2004 U.S. App. LEXIS 17189

In the 2004 litigation (see below for facts of case) the 9th Circuit considered, post Toyota Motor Manufacturing, Kentucky Inc. v. Williams, the third prong of whether a given condition constitutes a disability. This prong asks whether the impairment substantially limits a major life activity. The district court concluded that Wong had not offered sufficient evidence on this issue, and affirmed the district court's grant of summary judgment for the university, stating as follows:

As noted at the outset of this opinion, we are pointed to that conclusion by the Supreme Court's unanimous decision in Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184, 151 L. Ed. 2d 615, 122 S. Ct. 681 (2002). The Court stated that to "qualify as disabled, a claimant must . . . show that the limitation on the major life activity is 'substantial.' " Id. at 195 (brackets omitted). It observed that the word " 'substantially' in the phrase 'substantially limits' suggests 'considerable' or 'to a large degree.' . . . The word 'substantial' thus clearly precludes impairments that interfere in only a minor way . . . from qualifying as disabilities." Id. at 197. Similarly, it held that the word " 'major' in the phrase 'major life activities' means important . . . . 'Major life activities' thus refers to those activities that are of central importance to daily life." Id. And, it emphasized that "these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled." Id. (Emphasis added.)>>>>>

The question for us, therefore, is whether Wong presented sufficient evidence to demonstrate that he was substantially limited in the specified major life activities for purposes of daily living, or as compared to what is important in the daily life of most people. He did not carry that burden.

Regarding the activity of learning, Wong's claim to be "disabled" is fatally contradicted by his ability to achieve academic success, without special accommodations. Most notably, Wong completed the first two years of the medical school program, the academic courses, on a normal schedule, with a grade point average slightly above a "B," and he passed the required national board examination at that point, both with-out the benefit of any special accommodations. That is not to say that a successful student by definition cannot qualify as "disabled" under the Acts. A blind student is properly considered to be disabled, because of the limitation on the major life activity of seeing, even if she graduates at the top of her class. Nor do we say that a successful student cannot prove "disability" based on a learning impairment. A learning-impaired student may properly be considered to be disabled if he could not have achieved success without special accommodations. But a student cannot successfully claim to be disabled based on being substantially limited in his ability to "learn" if he has not, in fact, been substantially limited, as that term is used in the Acts.

The relevant question for determining whether Wong is "disabled" under the Acts is not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It is whether his impairment substantially limits his ability to learn as a whole, for purposes of daily living, as compared to most people. The level of academic success Wong has achieved without special accommodation precludes the possibility that he could establish that he is disabled under the Acts based on a learning impairment. Wong is not less able to "learn" than most people. His record proves the contrary. n6

Wong v. Regents of University of California, No. 98-15757, 1999 U.S. App. LEXIS 22353 (9th Cir. Sept. 16, 1999). Andrew Wong was a medical student at UC-Davis. After being dismissed for failing to meet the academic requirements, Wong brought suit under Title II of the ADA and Section 504 of the Rehabilitation Act. The United States District Court granted summary judgment in favor of the university and Wong appealed. The United States Court of Appeals for the Ninth Circuit considered the issues of whether the requested accommodation was reasonable and whether, with accommodations, Wong was qualified to continue his studies. On September 16, 1999, the Court of Appeals ruled that the university was not entitled to summary judgment and remanded the case back to the District Court for further proceedings.

After experiencing some trouble with his medical clerkships, Wong was diagnosed with a learning disability. The disability was two-fold: one dealing with receptive language, and the other dealing with expressive language. Wong could not listen to parts of the speaker's communication that occurred while he was processing the previous message, and he could not find the words needed to express thoughts quickly. Having to deal with new or "not-quite-mastered" information exacerbated the problem. Wong was referred to a psychologist and School of Medicine faculty member who recommended extra time to complete the clerkship years, as well as extra time to read before his next two clerkships. She also suggested that Wong be assigned a student learning disability advisor. The advisor was never appointed, but Wong was granted eight weeks of additional reading time prior to retaking his medicine clerkship, and eight weeks of extra reading time for his surgery clerkship. He did well in both clerkships.

When Wong requested extra reading time for his pediatrics clerkship, the request was denied by the Dean, with the Registrar being the party to communicate the denial. Wong received a failing grade in the pediatrics clerkship. Evaluators noted he had trouble synthesizing information. He was dismissed from the school, and there was a factual question as to whether or not the Dean allowed Wong to tell the Promotions Board about the refused accommodation.

In reversing the grant of summary judgment for the university, the court said that it would defer to the institution's academic decisions only after it was determined that the school had fulfilled its obligation to make itself aware of the nature of the student's disability; explored alternatives for accommodating the student; and exercised professional judgment in deciding whether the modifications under consideration would give the student the opportunity to complete the program without fundamentally or substantially modifying the school's standards. In this case, the Dean failed to heed the suggestions of one of its own faculty members consulted about accommodations, did not allow the repeat of an accommodation which was clearly helpful to the student, and did not appoint a student learning disability advisor. The court suggested that the Dean's actions amounted to a "conspicuous failure to carry out the obligation to 'conscientiously' explore possible accommodations." Wong, 1999 U.S. App. LEXIS 22353, *__. In addition, the committee responsible for the dismissal was probably prevented from hearing relevant evidence as to the existence of a disability.

The court noted that an institution's past decision to make a concession to a disabled individual does not obligate it to continue to grant that accommodation in the future, nor does it make that accommodation reasonable as a matter of law. However, if an accommodation was granted and worked well, it is persuasive evidence from which a jury could find that the accommodation was reasonable. Wong, in this case, presented evidence that, when granted the decelerated schedule, his performance drastically improved, and he further presented evidence that the university failed to fully consider the effect of this modification on its program and his abilities. The court noted that a jury could easily conclude that the extra time to read and absorb new technical information would allow Wong to perform satisfactorily on his clerkships, and ease his anxiety about the new information, thus making him more comfortable in the clinical setting.

In summary, the court had this to say about academic deference to an institution on the matter of reasonable accommodation:

The deference to which academic institutions are entitled when it comes to the ADA is a double-edged sword. It allows them a significant amount of leeway in making decisions about their curricular requirements and their ability to structure their programs to accommodate disabled students. On the other hand, it places on an institution the weighty responsibility of carefully considering each disabled student's particular limitations and analyzing whether and how it might accommodate that student in a way that would allow the student to complete the school's program without lowering academic standards or otherwise unduly burdening the institution. [Wong, 1999 U.S. App. LEXIS 22353, *__.]

Supreme Court Invalidates EEOC Guidance on Disability

NB: Sutton was explicity rejected by the ADA Amendments Act of 2008

On June 22, 1999, in the case of Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that two severely myopic women, whose vision was fully correctable, were not considered disabled for purposes of coverage under the Americans with Disabilities Act. The two women had sued United Airlines for failing to hire them as they did not meet the minimum requirement of uncorrected visual acuity of 20/100 or better. The plaintiffs claimed discrimination under the Americans with Disabilities Act on the theory that the Airlines "regarded" them as having a disability. The Supreme Court rejected this argument and held that the women in question did not meet the definition of "disabled" under the law. The Court also rejected the argument that the Airline in question had regarded the applicants as having a disability.

The decision is an important one. The EEOC had issued an "Interpretive Guidance" which stated that "the determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." The Department of Justice had issued substantially similar guidance. The Court clearly rejected this approach and, in a 7-2 decision, stated no agency had been given the authority to interpret the term "disability." Under the Court's reading of the law, whether an individual is disabled should be made with reference to measures that mitigate the impairment. The Court's key holding is as follows: "Looking at the Act as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures -- both positive and negative -- must be taken into account when judging whether that person is 'substantially limited' in a major life activity and thus 'disabled' under the Act." Sutton, 119 S. Ct. at ___.

Under the Court's approach, a diabetic whose illness does not impair his or her daily activities would not be considered disabled. Conversely, the negative side effects of mitigating measures for an illness could result in a finding of "disability" if an impairment of major life activities results from taking the medicine, and not from the illness itself.

The Court passed on ruling on the question of whether or not working is considered a major life activity.

In a companion case, Albertsons, Inc. v. Hallie Kirkingburg, 527 U.S. 555 (1999), the Court held that the Sutton decision extends to mitigating measures undertaken, whether consciously or not, with the body's own systems. In other words, a person who has compensated for their disability may not be "disabled" under the law.

For a NACUA outline entitled Evolving Issues in Accommodating Students with Disabilities prepared for the June 2000 NACUA conference by Thornton Wilson and Lee Chamberlain, see


updated 12-12-11 by mlo to add Singh