LEARNING DISABILITIES AND THE LAW: Toward Reason and Accommodation
[To the N. Neal Pike Institute on Law and Disability, Boston University Center, November 18, 1995. Robert LeRoux Hernandez]
I am very pleased to be here to address you on the subject of learning disabilities in law. I have been provided with a list of questions which I shall try to address during the course of this presentation, but I would like to concentrate on one fundamental proposition today: That the force of technology is transforming this issue so rapidly that learning disability law is now at the cutting edge of the legal profession.
I know that sounds rather dramatic, but I hope that by the time I conclude, you will agree that the facts are there.
Please suspend your disbelief momentarily and imagine the following: The world in which intelligence is perceived not as the ability to score points on a standardized test but rather on the capacity of virtually everyone to acquire knowledge and wisdom through the capacity to reason. Imagine reasoning as not just a linear thought process, but rather a capacity to acquire truth through circumspection, that is by encircling a problem rather than piercing it. Imagine a world where the ability to read, while still a wonderful and rich capacity, is not the determinate of one's ability to undertake complicated thinking and to engage in professional career such as law, medicine or accounting. Imagine the computer not just as a machine sitting on a desk to process words, but as an adjunct to the brain, permitting the user to compound his or her mental capacities.
Imagine being on-line with instant access to the world wide seamless web. Imagine what a level playing field it would be for persons with learning disabilities if their personal computers were programmed to compensate whatever was necessary for those disabilities.
I suggest that world is not far away, and in many ways the greatest obstacles to access to an equal education are the schools themselves. And, although the law is perhaps the most conservative of disciplines, the least prepared to forego traditional ways of thinking and the most insistent upon the rules and ways of doing things of the past, it is and will be dragged into the brave new cyberworld, perhaps kicking and screaming, but into it nevertheless.
The foundation has already been laid, indeed the seeds of tomorrow's legal system have already been planted in the fertile ground of anti-discrimination laws.
Let me back-up for a moment, and explain to you that I do not perceive the law to be a static set of rules which must be applied to particular situations, but rather a system which interacts with, is modified by, and transforms itself as a result of a particular circumstances to which it is applied. Because Congress and the States have called upon it to deal with the issue of discrimination against the handicapped, to force equal access to all programs for people with disabilities of all kinds, it has been forced to come to grips with what is a disability in the context of learning. What kind of invisible disabilities interfere with peoples capacity to demonstrate competence in fields such as law and medicine. Clearly because those disciplines have erected bars or means of screening out potential members on the basis of criteria that have been rendered obsolete by the technology of the modern world. Turning for a moment to that obsolescence, it exists on three levels: First, in the practice of these disciplines; second, in the means of testing competence for admission to these disciplines; and third, in the means of preparing people for admission into these disciplines. Let me give you examples of each of these.
The traditional image of a lawyer is a man poring over arcane text weaving sophisticated legal argument for a brief on a point of law. Or he may be preparing a complicated generation- skipping trust to facilitate the transfer of assets. Or he may be reviewing a contract to insure that its terms are enforceable and do not harm to his client, or he may be standing in front of a jury persuading it to that his client has been outrageously injured by the negligence of the adversary.
There was a time when an attorney might have to do any or all of these things, but this time is past. Specialization permits attorneys to concentrate in areas in which they are comfortable and strong. Most of today's attorneys never see a courtroom, and some who do never engage in legal research. And each of the foregoing scenarios is greatly affected by the technology available to facilitate the specific task. For example, today's lawyer can use computerized data bases to unravel legal issues and develop effective written argument. She is as likely as not to have boilerplated alternative trust provisions in a computer, tailored to particular needs of a client. She similarly will have identified critical portions of contracts, either of them integrated into a single document, or for purposes of revealing them for a client. And as for effective oral advocacy, she is likely to have studied the masters on video or CD-Rom.
Because it is a different world out there, and because of the different skills useful to effective lawyering are so numerous and varied, it is difficult to understand why admission to the bar remains so closely tied to standardized test which measure certain forms of legal reasoning, but clearly not all. Legal problem solving is not the dependent on filling in little boxes, but rather on being able to draw on a wealth of resources which are growing by leaps and bounds everyday and which require different sorts of skills to use them effectively. And as for legal instruction, one need not abandon the socratic method interactively to develop the skills and knowledge necessary to be an effective lawyer. Innovations in computer-based education can be a boon for the acquisition of the skills and knowledge by those who are learning disabled. Technology provides the means to teach the learning disabled and to give them equal access to the profession.
Furthermore, the law requires law schools to accommodate the learning disabled that is to provide reasonable means for them to succeed in law school. I will explain in detail what that means in a moment, but let me begin by discussing with you from where that law derives.
Approximately 3 million Americans have one or more physical or mental disabilities; they are often isolated and segregated both in and out of school. Approximately 1.3 million out of 12 million postsecondary students are handicapped. Vogel, Extrinsic and Intrinsic Factors in Graduation and Academic Failure among LD College Students, 40 Annals Dyslex. 119, 120 (1990), citing U.S. Dept. of Education (1987). Thirty-six per cent of all handicapped postsecondary school students (or approximately 468,000), in the 1988- 89 school year reported being handicapped also reported having a learning disability. Accommodating Learning Disabled Students, 32 B.C.L. Rev. at 1051; citing Clark, National Assessment of Handicapped Student Survey Programs in Postsecondary Education: Survey of Programs, 4 (1990); c.f. Vogel, 40 Annals Dyslex. at 120.
Learning disabilities are often misunderstood and are sometimes not detected at all. Even when specialists detect these disabilities, learning disabled students have been labeled as uneducable or underachievers. Only recently have specialists begun to understand learning disabilities and recognized them as true handicaps. Accomodating Learning Disabled Students, 2 32 B.C.L.Rev. at 1082 (footnotes omitted).
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In a Buffalo Law Review article, The Judge Who Could Not Tell His Right from His Left and Other Tales of Learning Disabilities, 37 Buffalo L. Rev. 739 (1989), Judge Jeffrey Gallet describes his struggle with learning disability, including academic failures. Not aware that he suffered dyslexia until he was thirty-four years old, Judge Gallet states he "assumed that I just wasn't too bright. If I worked a little harder than everyone else, I would be able to keep up. If I did a little more. If I got up at five in the morning, no one would know I wasn't too smart." Id. at 743. He struggled through school and has since gone on to author five books, forty articles and over thirty published opinions. He has taught at four major universities, including Columbia, and has even taught legal writing to judges.
Judge Gallet notes: "I'm learning disabled, and I'm always going to be learning disabled. There is no wonder drug; there is no operation. I won't outgrow it; it won't get better. It's a neurological disorder, a minor brain damage. It is a mental misfiring. When information comes in through my eyes or ears it doesn't always get to my brain and back to my hand or mouth exactly the way it's supposed to." Id. at 742.
Had Judge Gallet's grades been the only measure of his ability to undertake legal reasoning, he surely would not have become a lawyer, judge or author.
As a consequence, in all aspects of education, the learning disabled have routinely been dismissed as failures. This is particularly so when educators rely on standardized testing. The use of traditional exam formats, such as multiple-choice, often merely serve to reflect a learning disabled's deficiencies. Experts in the field of handicapped students have found that although learning disabled students have the capability to learn their deficiencies in processing information cause them to learn differently. Further, experts have noted that generally, a learning disabled student's processing abilities are deficient only in one or a small number of areas. Consequently, scholars in the area of learning disabilities have found that by allowing alternate test formats, learning disabled students were able to show their abilities rather than disabilities. Id. at 1057-1058 (1991)(footnotes omitted).
Although in theory "tests are supposed to measure one's abilities . . . in certain cases, test results may not even closely reflect such abilities. Unfortunately for many however, convenience and efficiency has significantly influenced how . . . faculty measure the abilities of . . . students." Rothstein, Section 504 of The Rehabilitation Act: Emerging Issues of Colleges and Universities, 13 J.Col. & Univ. L. No. 37, 229, 252-53 (1986).
There are two major federal statutes, the Americans and Disabilities Act and in Section 504 the Rehabilitation Act of 1973. In addition the Massachusetts Constitution (Article 114 of the Amendments) prohibits discrimination of otherwise qualified persons on the basis of handicap, which is enforceable under Ch. 93, s. 103 of the general laws. Before going into greater detail about how these laws are enforced, let me first generalize to say that together they stand for the proposition that no otherwise qualified individual will be denied participation in or the benefits of a program on the basis of handicap or disability. Although the Americans with Disabilities Act of 1990 uses the term disability rather than handicap, which was used in the Rehabilitation Act of 1973, for purposes of this discussion you should regard those terms as equivalent.
Congress first began seriously to address these problems in 1973 with passage of the Rehabilitation Act, including section 504. Modeling it after Title VI of the Civil Rights Act of 1964, "[C]ongress intended Section 504 to be a broad civil rights act aimed at providing equal opportunities for the handicapped." Notes, Accommodating Learning Disabled Students in Higher Education: Schools' Legal Obligations Under Section 504 of the Rehabilitation Act, 32 B.C.L. Rev. 1051, 1053-1054; S. Rep. no. 1297, 93rd Cong., 2d Sess. 120, reprinted in 1974 U.S. Code Cong. and Admin. News at 6390. See also Nathanson v. Medical College of Pennsylvania, 926 F.2d at 1368, 1385 (3rd Cir. 1991). Because, like other civil rights acts, the purpose of Section 504 is to "achieve equality in employment opportunities and remove barriers that have operated in the past to favor an identifiable group . . . practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze status quo of prior discriminatory . . . practices." See Griggs v. Duke Power Company, 401 U.S. 424, 429-434 (1971).
Congress followed up in 1990 with the Americans With Disabilities Act( the ADA). Significant in the Americans with Disabilities Act is the statement of purposes at the outset of the act. Therein, Congress finds that historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; discrimination against individuals with disabilities persist in such critical areas as education; individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminary effects of communication barriers, overprotective rules and policies, failure to make modification to existing practices, exclusionary qualifications standards and criteria, segregation and relegation to lesser services, programs, activities, benefits or other opportunities; census data, national polls and other states have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically and educationally. Congress further finds that individuals with disabilities are a discreet and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in and contribute to society. It sets the nations proper goals regarding individual with disabilities to assure equality of opportunity, full participation and economic self-sufficiency for such individuals and finds that the continuing existence of unfair and unnecessary discrimination and prejudice to deny people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous. How's that for punch?
The ADA defines simply to mean "with respect to an individual: A physical or mental impairment that substantially limits one or more of the major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment." This is identical to the definition used in Section 504 of the Rehabilitation Act of 1973, in defining handicap. Let me review the three categories of individuals who are deemed to be disabled or handicapped and emphasize that the same definition has been adopted by Massachusetts, which has in many respects provided a broader range of remedies than a federal statute through its equal right statute which I shall discuss again later. A person will be considered disabled or handicapped, and entitled to the benefits of the protection of these laws if a physical or mental impairment substantially limits one or more major life activities, that is to say that any ability such as that to read, to calculate, to hear or to perceive. The definition includes significantly anyone who has a history of such a condition, or is perceived to have such a condition, which suggests that even if a condition has subsided but a need to accommodate continues, accommodation is required.
Another concept is critical to understanding these set of laws and that is the concept of "otherwise qualified," this has been extremely confusing for everyone, since often the handicap or disabling condition itself affects the ability of the individual to prove that she or he is "qualified" to participate in the program or to receive the benefit. As I shall explain to you shortly, this has been a significant obstacle to obtaining rights under these programs, but the case of Wvnne v. Tufts Medical School which I argued before the First Circuit, may well be a landmark in resolving this issue to the benefit of learning disabled students.
The last concept that we need to come to terms with is the requirement of these statutes that the provider of the benefit or program must "reasonably accommodate," the otherwise qualified handicapped person. As a general rule, it means that the provider need not dramatically change the program or the benefit to tailor it to the needs of the individual who is handicapped or disabled. What is reasonable, just as any question of fact, may ultimately have to be decided by a trier affect. Plainly, however, this is a heated point of debate between disabled individuals and those who are required by the law to accommodate them, and I hope that my discussion of the Wynn case will shed further light on the subject.
Before we get to Wynn, however, let me give you a little bit more specific information about these various laws and the avenues of redress that they create.
The progenitor of all these laws is the Rehabilitation of Act of 1973, which in Section 504 requires that all recipients of federal funds accommodate otherwise qualified handicapped people. The key is that the covered entity be a recipient of federal funds. In may experience, no higher education facility has ever denied that it is a recipient of federal funds, so its fair to say that that law covers all law schools.
Although students may seek redress through the Department of Education's Office of Civil Rights under this law, the courts have interpreted a separate private right of action, so that one may go directly into federal court to enforce one's rights under the statute. Furthermore, to the extent that this may be deemed a rights churned by the statutes of the United States, it gives rise to a civil rights cause of action under 42 U.S.C. s. 1983 to the extent that the violation of the right may be deemed to be intentional by the individual who violates the right or reflecting a policy or custom of violating the right by the public entity. I know that those may be slightly complicated concepts, and I will be happy to elaborate later during the question, should anyone wish to pursue it.
The Americans with Disabilities Act does not in specific terms cover institutions of higher learning, but such institutions are covered under Title II of the ADA which specifies that no qualified individual with a disability may be discriminated against by a public entity in the event that we are dealing with a state school,
For enforcement of rights under the Americans with Disabilities Act, I call your attention to 42 U.S.C. s. 12188, which provides relief for any person either subject to discrimination or who has reasonable grounds for believing that he or she is about to be subjected to discrimination. It includes language that precludes the requirement that anyone engaged in a futile gesture when a person has actual notice that a personal organization does not intent to comply with provisions of the ADA. In other words, prohibited discrimination can be brought directly to court, and an individual may seek injunctive relief, which may "include require a provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods. . ." The Attorney General is charged with enforcement and pursuing litigation in any appropriate United States District Court, in addition to an individual effected by the discrimination.
The Massachusetts law, Ch. 93, s. 103 provides that any person within the Commonwealth, regardless of handicap shall, with reasonable accommodation have the same rights as other persons to the full and equal benefit of all law the rights secured under Article 114 of the Amendments of the Massachusetts Constitution. That constitutional amendment provide specifically that no otherwise qualified handicapped individual shall, solely by reason of the handicap, be excluded from the participation, in denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth. Thus, explicitly the Commonwealth prohibits discrimination in its program, including the denial of full participation in its programs to all institutions of higher learning. Under the statute, s. 103, any person who's rights have been violated may begin a civil action for injunctive or other appropriate equitable relief, including the award of compensatory exemplary damages. An action can be brought in a Superior Court, and the prevailing party is entitled to damages including the award of cost of litigation and reasonable attorney's fees. Thus, learning disabled students are afforded protection of both the federal courts and state courts, as well as the Office of Rights as I mentioned earlier.
Now let me speak for a few moments about what is necessary to prove your case. In doing this, I draw largely from the Wynn case that I mentioned earlier.
First, one must prove that one is handicapped or disabled within the meaning of the law. Don't forget that this can include a history of a history of a handicap, so that anyone who has been diagnosed at some point as being learning disabled, perceptually disabled, dyslexic, dyscalculic, or something from any mental impairment, can easily show that he or she is entitled to the protections of the law.
As a practical matter it would be a good idea to have documentation showing that the handicapped exist. Secondly, one must request accommodation. This is often the most difficult part of any case, because having a disability such as this is to put it bluntly embarrassing and humiliating. No one wants to go to an administration or to a faculty member and say I have a learning disability or I have dyscalcula or I have dyslexia. To do so, in and of itself, often is stigmatizing and makes one feel different. Many defendants have prevailed because they claim that they did know that the individual suffered the handicapping condition or the disability, so it is critical to document the request for accommodation, explaining in terms of the specific needs growing out of the disability. Without some documentation, these cases are very, very hard to bring.
Finally, I reach the most difficult hurdle, the twin barriers of "otherwise qualified" and "reasonableness." As I will explain momentarily, these two concepts have as a result of the Wynn case been inextricably linked and are in a way two sides of the same coin. Let me begin however with reasonableness. As I indicated earlier, only a juror or judge (if that is the fact finder) can tell you what is reasonable and what is not reasonable. Obviously something which is very costly will not be deemed to be reasonable. Furthermore, anything which is generally disrupted of the program will not be considered reasonable. Finally, and most difficult in a context of an institution of higher learning, the Wynn case stands for the proposition, among other things, that a school is not required to teach its basic educational philosophy or curriculum as a means of accommodating a handicapped or disabled student. So let's talk about Wynn.
Steven Wynne ("Wynne" or "petitioner"), thirty-one years old, holds a masters degree in biology but is handicapped with a significant and severe specific language/learning disability, commonly known as dyslexia. See Affidavit of Vincent Perlo, M.D. ("Perlo Affidavit"), reproduced in the Appendix, p. A. 127. As a result of his learning disability, petitioner has difficulty with passive constructions, difficulty with double and triple negatives, difficulty discriminating part/whole relationships, difficulty with connotative meaning of words and sequencing difficulty. See Plaintiff's Answers to Defendant's Interrogatory No. 1, reproduced in the Appendix hereto, p. A. 131. This impairs his ability to answer written multiple choice questions, but does not reflect that his intelligence is anything but normal. Perlo Affidavit, para. 6, p. A. 128. Indeed, when administered a non-verbal test of intelligence, his overall level fell at the 95th percentile, within the "intellectually superior" range. Report of Argie Tiliakos, Licensed Psychologist, reproduced herein in the Appendix, p. A. 164. Petitioner has the motivation and basic ability successfully to complete a medical education. Affidavit and Letter of Helaine M. Schupack, Reading Therapist, Language Disorders Unit of the Massachusetts General Hospital, reproduced herein in the Appendix, pp. A. 181-186.
Petitioner was unconditionally admitted to the Tufts Medical School in 1982. See Affidavit of Dean Henry Banks, M.D., Appendix, p. A. 188, para. 1; Affidavit of Steven Wynne, p. A. 194, para. 8; Plaintiff's Answer to Defendant's Interrogatory No. 3, p. A. 134. After failing eight courses in the 1983-84 academic year, he was permitted to repeat his first year. Banks Affidavit, paras. 5-6, pp. A. 189-90.
Petitioner was administered a neuropsychological evaluation in July, 1984 at the request of respondent. See Affidavit of Barbara Chase, M.D. ("Chase Affidavit"), p. A. 205. The evaluation by Celaine Rey-Casserly, Ph.D., revealed that petitioner had:
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.
Id., Exhibit "A," pp. A.219-20. Dr. Rey- Casserly noted that "Volume of material per subject, the number of subjects as well as the examination procedures [emphasis added] constitute multiple stresses on Mr. Wynne's ability to compensate." Id., pp. A. 220-21.
She recommended "[a]ssistance in developing strategies to handle complex written materials and to monitor details [which] may require an inordinate amount of intensive remedial work." Id., p. A. 221.
In August 1984, petitioner was informed that, as a condition for remaining at Tufts, he would have to repeat all of the courses he had previously passed and audit and take exams in all other courses in which he had received "low-pass" (which had not been required of at least one other student who had failed the first year). See Wynne Affidavit, para. 18, p. A. 199. These requirements meant that petitioner was in fact subject to the same pressures under which he had previously been unable to succeed; but petitioner followed each of respondent's directives, repeated all the courses, arranged to tape lectures and for a note taker, participated in tutoring and otherwise cooperated with the school's requirements. Id., paras. 13-16, pp. A. 197-98.
In complying with respondent's requirements, petitioner took advantage of every tutoring opportunity of which he was aware. Id., para. 14, p. A. 198. Such tutoring that was available, however, was not designed for persons with learning disabilities. Id., para. 13, A. 197. When petitioner sought to obtain tutoring from persons with knowledge of dyslexia, they lacked necessary knowledge in the subject matters of his classes. See Plaintiff's Answer to Defendant's Interrogatory No. 5, p. A. 145.
In spite of such obstacles, as a result of his concentrated efforts, petitioner succeeded in passing all courses except biochemistry. Wynne Affidavit, para. 21, p. A. 201; Banks Affidavit, para. 9, pp. A. 190-91. Although petitioner complained that his handicap made it extremely difficult to succeed with multiple choice (Type K) exams, respondent refused to accommodate him with an alternative, such as an oral examination. SeePlaintiff's Answer to Defendant's Interrogatory No. 4, p. A. 141, paras. 18-20; Answer to Interrogatory No. 5, p. A. 144.
Significantly, in comparison with his difficulties with multiple-choice examinations, Wynne received substantially higher scores in practicum, a time-measured examination which reflected not only his ability to learn complicated material, but also to understand, assemble and apply it under time constraints, conditions closer to the actual practice of medicine than multiple-choice examination. Wynne Affidavit, para. 23, p. A. 202. In each of his examinations at Tufts, Wynne did consistently and significantly better in the non-multiple-choice portions than in the multiple-choice portions to the 1 examinations. .mt3
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1 For example, during the 1983-84 academic year, he obtained a 40% correct on exclusively multiple-choice questions in three examinations in anatomy as compared to 78% correct on three corresponding practicum examinations. See Affidavit of Steven Wynne, p. A. 224, para. 4. In the 1984-85 academic year, he obtained a mean of about 58% correct on exclusively multiple-choice questions
On numerous occasions, Wynne brought his problem with written multiple-choice examinations to the attention of relevant decision makers. On October 28, 1983, he met with Dean Marilyn Griffin and told her about the problems he was having with multiple-choice examinations. She told him to tell his professor that he was "trying." Id., p. A. 234, para. 23. On March 15, 1984, Wynne again discussed his problems with multiple- choice (Type K) questions with Griffin, and was told, "Until the medical school has changed, that is the way you will be tested all the rest of your life . . . .lm4
________________ on three examinations and a mean of about 83% correct on three corresponding practicum examinations in anatomy. He ranked in the top 30% of the class in anatomy for that year. Id., pp. A. 224- 5, para. 5. In the 1983-84 physiology examinations, he obtained a mean of 53% correct on multiple-choice questions and the entire course at a mean of 82% correct on true/false and matching questions. Id., pp. A. 225-26, para. 7. Wynne passed with honors in histology.
It's time to stop fishing and cut bait." Id., pp. A. 234-35, paras. 24-25. On March 20, 1984, the Wynne discussed his problems with (Type K) multiple-choice questions with the undergraduate Dean, Dr. Lon Curtis. Id., p. A. 235, para. 27. On June 15, 1984, he met with Deans Chase and Griffin and again called their attention to the significantly higher scores he had obtained on practicum, short answer and essay than on multiple-choice (Type K) questions. He was told by Chase that "something we can look into." Id., p, A. 236, para. 28. There is no evidence that any steps were ever taken to address this problem.
On June 20, 1984, Wynne again brought his problems with multiple-choice (Type K) questions to the attention of the promotion committee. Id., pp. A. 236-37, para. 29. Wynne was then tested by neuropsychologist, Rey-Casserly. Although, based on the Rey-Casserly report, Dr. Bush once mentioned "special tests" as a potential remedial step for Wynne, pp. A. 239-40, para. 33, at no time was Wynne offered any alternative to the (Type K) multiple-choice tests in those cases in which they were administered to other students. Indeed, on August 30, 1984, Dean Griffin explicitly told Wynne that the promotional committee would not accept individualized oral examinations. Id., pp. A. 240-41, para. 36.
Although Wynne was offered various tutors of questionable qualification to prepare for the third biochemistry exam, pp. A. 242-43, para. 38-40, he was required to take the biochemistry exam which was in the usual multiple-choice format. When he again failed, Wynne asked his professor, Dr. Krinsky, about the possibility of an oral exam and was informed by Krinsky that he had no knowledge of Wynne's disabilities and had never been informed to teach Wynne or test him in any fashion differently from any other medical student. Id., pp. A. 243-44, para. 42. At the Student Appeals Committee on September 11, 1985 Wynne again raised the issue of his problems with multiple-choice (Type K) exam questions, and Dr. Feinblatt misinformed the committee that, in fact, the biochemistry exam had been an essay. Id., para. 43.
Relevant decisionmakers at Tufts repeatedly made statements indicating that either they did not believe that Wynne was truly learning disabled or indicating their perception that there was no place for learning disabled students at Tufts. For example, on August 6, 1984, Dr. Betsy Bush, who had been assigned as Wynne's advocate before the Promotions Committee, informed him that "Tufts is no place for a person with a learning disability," suggesting that Wynne "go be an airplane pilot." Id. p. A. 238, para. 32. She criticized Wynne's expectation of "special treatment." Id. On August 21, 1984, Dean Banks told Wynne that he did not believe that Wynne had a learning disability, commenting "I don't care what these tests say, I've worked with kids with learning disabilities before." Id., p. A. 240, para. 34.
On August 30, 1984, in response to his request for attention to his problem with multiple-choice examinations,
Dr. Dean Griffin told Wynne, "That's
the way it is . . . the school already threw you out. The faculty feels that they should be the ones to decide who they teach medicine to, not the Deans." Id., para. 36. At the Student Appeals Committee meeting on September 11, 1985, Dr. Salem expressed the opinion that Wynne was merely seeking "special treatment." Id., pp. A. 244-45, para. 43.
On September 24, 1985, petitioner was dismissed. He thereafter confirmed his dyslexia through testing at the Massachusetts General Hospital Language Disorder Unit and demonstrated that with proper tutoring and drilling he can improve his reading proficiency. See Report of Dr. Argie Tiliakos of the Massachusetts General Hospital Language Disorders Unit, p. A. 179-80; Perlo Affidavit, paras. 6-7, pp. A. 128-29; Affidavit of Helaine M. Schupack, p. A. 181.
According to the former Director of the Language Disorder Unit of the Massachusetts General Hospital, with proper work in remedial reading petitioner would probably succeed even with multiple choice (Type K) testing. See Perlo Affidavit, para. 8, p. A. 129. Mr. Wynne needs an individual tutor knowledgeable in medical terminology and subject matter who has received several hours of training relative to Mr. Wynne's specific needs. See Schupack Affidavit, para. 4, A. 181-2.
Petitioner brought an action in the Superior Court for the County of Suffolk, Massachusetts, seeking monetary damages and equitable relief from his dismissal from Tufts, claiming, inter alia, that Tufts has violated his rights under Section 504 in that he is otherwise qualified and is being denied a medical education solely because of a handicap which impairs his ability to take multiple choice (Type K) examinations. On May 11, 1988, the action was removed by respondent to the United States District Court for the District of Massachusetts, invoking its original jurisdiction under 28 U.S.C. ss. 1331 and 1441(6).
On or about September 23, 1988, Wynne noticed the depositions of certain of Tufts' relevant decisionmakers, including that of Dean Henry Banks, M.D., for October 24, 1988. On or about October 3, 1988, Tufts moved for a protective order staying discovery until the district court ruled on its motion for summary judgment, which order suspending discovery entered on October 19, 1988, before the scheduled deposition of Banks. See A. 124. Despite his requests therefor, petitioner has since been precluded from conducting any further discovery.
On or before October 14, 1988, Tufts moved for summary judgment, relying in part on the affidavit of Dean Henry Banks for the proposition that Tufts' use of the written Type-K multiple choice examination was a matter of substance designed to measure the ability to practice medicine. On March 21, 1989, Tufts's motion for summary judgment was denied because "questions of fact remain regarding both the reasonableness of the accommodations made by the respondent and the extent to which respondent adhered to the program it did devise for petitioner." See A. 123-24. Upon Tufts' motion, the court reconsidered and on May 17, 1989 entered summary judgment for Tufts. In its memorandum of decision, the district court found that "[s]ince plaintiff clearly has not been able to meet the academic requirements of Tufts school, he cannot be deemed to be 'otherwise qualified.'" See A. 122.
Wynne appealed under 29 U.S.C. s. 1291. On April 30, 1990, after a hearing before a three-judge panel, the United States Court of Appeals for the First Circuit reversed and remanded the summary judgment to the district court. See p. A. 77. Thereupon Tufts petitioned for rehearing en banc. The petition was granted on August 21, 1990, the panel's opinion was withdrawn and the judgment of the three-judge panel vacated. See p. A. 115.
Upon rehearing en banc, the Court of Appeals set aside summary judgment under section 504 and remanded for further proceedings on the issue of whether Tufts had reasonably accommodated Wynne. See pp. A. 25-67; Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1st Cir. 1991). The Court of Appeals opined that summary judgment would be possible only if Tufts submitted "a factual record indicating it conscientiously carried out [its] statutory obligations" and submitted "undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternatives would result either in lower academic standards or requiring substantial program alteration . . ." Id. at 25-26; p. A. 55.
Upon remand, Tufts submitted affidavits averring inter alia, that "there are very strict limits in [Tufts'] ability to alter [its] medical school program . . . to accommodate students with learning disabilities." Affidavit of B. David Stollar, M.D., p. A. 261, para. 16. It stated that the multiple choice exam is a fair and comprehensive way to make "subtle distinctions based on seemingly small but significant differences in written information." Id., p. A. 261. Although it did not further describe those limits, what alternatives had actually been considered for eliciting evidence of such ability from Wynne, or what alternatives might otherwise meet their specific goals for biochemistry exams--evidence of "the recognition of basic information in biochemistry" and "ability to reason through problems," id., para. 7--the district court again granted summary judgment, p. A. 116, and was upheld by the Court of Appeals.
Wynne had requested but was again precluded from conducting any discovery relating to Tufts' decisionmaking process, consideration of alternatives to written multiple-choice testing, or discriminatory attitudes toward him as a handicapped person.
The Court of Appeals, in upholding summary judgment, apparently gave no weight to petitioner's own direct evidence of efforts to be accommodated; to evidence that his requests for accommodation were ignored; to evidence that the decisionmakers did not take his handicap seriously or felt it should disqualify him from a medical education; to evidence that the Brown University Program in Medicine permits administra-
tion of oral examinations to dyslexic students upon request, see Affidavit of Stephen R. Smith, M.D., pp. A. 263-64; or to evidence that the National Board of Medical Examiners ("NBME") routinely accommodates dyslexic examinees by providing readers. See Affidavit of Ann M. Schultes, pp. A. 268-69.
Certiorari was denied by the Supreme Court, and Mr. Wynne has still never been permitted to complete his medical education. Nevertheless, his persistence in pursuing his rights led to what is without question the most comprehensive analysis of the application of anti-discrimination laws to persons with dyslexia and similar learning disabilities and has created a hole large enough for the disability rights movement to come driving through when the time comes.
Here is the language in the original Wynne decisison which foretells the future of the rights of persons with mental impairments:
The balance struck in Davis requires that an otherwise qualified handicapped
individual must be provided with meaningful access to the benefit that the
grantee offers. The benefit itself, of course, cannot be defined in a way that
effectively denies otherwise qualified handicapped individuals the meaningful
access to which they are entitled; to assure meaningful access, reasonable
accommodations in the grantee's program or benefit may have to be made.
Thus, in determining whether an individual meets the "otherwise qualified"
requirement of section 504, it is necessary to look at more than the
individual's ability to meet a program's present requirements. As the court in
Brennan v. Stewart recognized:
The question after Alexander is the rather mushy one of whether some "reasonable
accommodation" is available to satisfy the legitimate interests of both the
grantee and the handicapped person. And since it is part of the "otherwise
qualified" inquiry, our precedent requires that the "reasonable [**16]
accommodation" question be decided as an issue of fact . . . .
The District
Court will need to conduct an individualized inquiry and make appropriate
findings of fact. Such an inquiry is essential if @ 504 is to achieve its goal
of protecting handicapped individuals from deprivations based on prejudice,
stereotypes, [*25] or unfounded fear, while giving appropriate weight to
such legitimate concerns of grantees as avoiding exposing others to significant
health and safety risks.
[There is a] need to accord
some measure of judicial deference to program administrators, but there must not be "broad judicial deference resembling that associated with the 'rational basis'
test [which] would substantially undermine Congress' intent . . . that
stereotypes or generalizations not deny handicapped individuals equal access to
federally-funded programs." Id. (footnote omitted).
A handicapped individual who cannot meet all of a program's requirements is not
otherwise qualified if there is a factual basis in the record reasonably
demonstrating that accommodating that individual would require either a
modification of the essential nature of the program, or impose an undue burden
on the recipient of federal funds.
Id.
: "When judges [**20] are asked to review the substance of a
genuinely academic decision, . . . they should show great respect for the
faculty's professional judgment." "Plainly, [judges] may not override [the faculty's professional judgment] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Id.
In the context of an "otherwise qualified-reasonable accommodations" inquiry
under the Rehabilitation Act, the same principle of respect for academic
decisionmaking applies but with two qualifications. First, as we have noted,
there is a real obligation on the academic [**21] institution to seek
suitable means of reasonably accommodating a handicapped person and to [*26] submit a factual record indicating that it conscientiously carried out this
statutory obligation. Second, the Ewing formulation, hinging judicial override
on "a substantial departure from accepted academic norms," is not necessarily helpful test in assessing whether professional judgment has been exercised in exploring reasonable alternatives for accommodating a handicapped person. We say this because such alternatives may involve new approaches or devices quite beyond "accepted academic norms." As the Court acknowledged in Davis, "technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment."
<=33> 442 U.S. at 412. n4
So what does this all mean and why is it so important for the questions under discussion today? It means that the question of “otherwise qualified” and “reasonableness of accommodation” cannot finally be extricated. Whatever it means to be qualified to be a lawyer or doctor or accountant or professional of any sort will have to evolve as the technologies present themselves to permit more and more people to participate in the professions, to master the skills and knowledge necessary to be competent lawyers, doctors, and so on. Where “reasonableness” fell yesterday is different than where it falls today and even more different than where it will fall tomorrow. Furthermore, as technology affects the profession itself, the mix of skills and knowledge will evolve, so that that testing for what was necessary to be a good lawyer yesterday just may not have relevance to today’s world. Technology will change what it means to be a lawyer, and learning disabled persons may not be excluded if with technological impact on the profession itself they now have can contribute to the profession. Finally, and I believe most subtly and most significantly, as persons with so-called mental impairments are admitted into the law schools and into the professions they will have a dramatic impact on legal education and on the law itself. As they struggle to resolve their own educational needs, as they work around the invisible barriers to their demonstration of competency, as they work around mental obstacles and find the truth through non-traditional means, and as they develop new forms of communication which reflect these differences, they will change the law and they will change the way that society looks at such fundamental things as thinking, intelligence and difference.
The impact of the so-called “learning disabled,” the “mentally impaired” those with dylexia, dyscalcula and language based disorders of all kinds has yet to be fully felt, but the struggle to accommodate, to move to a philosophy of inclusion rather than exclusion will be well worth it for us as people. In that struggle lies the hope of discovering the true meanings of the words “freedom” and “equality.”