One of the blogs in my blog roll is Wait a Second, which discusses civil rights cases in the Second Circuit. Recently, Wait a Second blogged on this case, which as far as I can tell, appears to be unpublished. Wait a second did an excellent job of describing the facts of that case and offering its own analysis, but I wanted to add a few thoughts of my own. From reading the case, I am not sure I could do a better job of summarizing the facts, and so I am borrowing Wait a Second’s description of the facts with some notes of my own. As is typical with my blog entries, I have divided the blog entries into sections: facts (which because wait a second does such an excellent job describing the facts, much of that description-though not all-comes from the excellent description of same in that blog entry); court’s reasoning; and takeaways and thoughts. The reader is of course free to read any or all of the sections.
The medical school required students to pass certain tests, including the Step 1 examination, in order to proceed to the next academic level (this is standard for medical schools). You get three chances in one year to pass the Step 1 examination. Students are granted six weeks of dedicated time to study for the step one exam. After the plaintiff twice failed the test, he suffered increased symptoms of depression, which made it difficult to prepare for the test. As he was undergoing treatment, plaintiff requested an extended leave of absence, which would have put off his third testing attempt. The school granted plaintiff several extended leaves so he could complete his treatment. As the examination grew closer, while progressing in his recovery, plaintiff requested an additional brief recovery period that would further put off the examination in order for his medication regimen to have time to work. That request was denied, and plaintiff was dismissed from the program altogether. The lawsuit claims the school denied plaintiff a reasonable accommodation in denying him the additional leave time.
There are, to my mind, some other facts worthwhile noting as well. First, the plaintiff enrolled in the medical school in 2004. Second, step one of the test per school policy had to be completed by May 31 of 2007. Finally, the last adverse action occurred in 2008.
1. In the education context, both the ADA and the Rehabilitation Act require an educational institution to offer reasonable accommodation for a student’s known disability unless the accommodation would impose an undue hardship on the operation of its program.
Interesting turn of phrase. With respect to the ADA, “undue hardship,” is a title I term. With respect to title II and title III of the ADA, the term used is “undue burden.” Even so, for all practical purposes, the analysis is the same regardless of the phrasing used.
2. When the plaintiff requested an extended leave, he explained that his physician had counseled him that he would need at least 6 to 8 weeks before he could see some improvement from the medication. Therefore, since the plaintiff requested a leave some 5 to 7 weeks longer than necessary in order for the medication to become effective, the trier of fact could find that the additional time he sought was clearly to prepare for the retake of step one. Further, the response of the leave of absence committee was such that a reasonable jury could find that the leave he requested included additional time for preparing for the exam and that the leave of absence committee understood his request to include such.
3. Earlier periods of study, especially since he had failed the exam twice before, were not sufficient to prepare him for the later examination.
I might add that the medication regimen was only in place when the last request for an extension was made and not before.
4. The plaintiff offered evidence to establish that he was not treated in an evenhanded manner with respect to similarly situated students.
5. The plaintiff’s period of preparation time in late July 2007 did not expand the six weeks time frame per school policy pertaining to medical students who also had failed two prior attempts of the step one exam. Therefore, a reasonable juror could be inferred that the abbreviated time frame encompassed with the plaintiff’s leave would not have been effective.
6. Just how does the burden of proof work in reasonable accommodation cases in the educational context according to the Second Circuit?
A. The plaintiff bears the initial burden of both production and persuasion as to the existence of an accommodation that would allow the plaintiff to meet the essential requirements of the service, program, or activity involved.
B. Once that occurs, the burden of persuasion then shifts to the defendant to rebut the reasonableness of the proposed accommodation, which can be done by either showing: 1) that the requested accommodation imposes an undue hardship on the operation of the defendant’s service, program, or activity; or 2) that the requested accommodation requires a fundamental or substantial modification to the nature of its academic program or standards. In other words, since the plaintiff had established a prima facie case, it was the responsibility of the defendant to submit a factual record establishing that when they rejected the plaintiff’s scheduling modification reasonable accommodation request, they diligently assessed whether the alteration would allow the plaintiff the opportunity to continue in the medical program without imposing undue financial or administrative burdens on the school or requiring a fundamental alteration to the academic caliber of its offerings. Since the record contains no evidence indicating whether those considerations were evaluated when determining the reasonableness of the accommodation sought by the plaintiff, the Second Circuit Court of Appeals declined to give deference ordinarily accorded to the professional and academic judgments of educational institutions. To do otherwise would allow academic decisions to disguise truly discriminatory requirements.
Takeaways and Thoughts
1. The amendment to the ADA did not go into effect until January 2009. Further, the final regulations implementing Titles II and III of the ADA were not even published until the summer and fall of 2010 going into effect six months later after that. All of this has me curious as to why there is absolutely no discussion of pre-ADAAA analysis in this case. That is, under the law prior to the ADAAA, there would have been a lot of litigation over whether a person had a disability to begin with. In this particular situation, the plaintiff had “situational depression.” There is a big difference between situational depression, which is very very common and many people over the course of their lifetime suffer from it at least once, and chronic depression, which never goes away. Remember, under pre-ADAAA analysis, you would have to figure out whether a person had a physical or mental impairment that substantially limits a major life activity. That definition is the same now, but the interpretation prior to the ADAAA was very different. Situational depression is probably a mental impairment. However, per Toyota Motor, was this situational depression such that it severely restricted or prevented the plaintiff from performing a major life activity? Was that major life activity of central importance to most people’s daily lives? That the plaintiff had “situational depression,” also leads to the question of whether the disability was temporary as the term was understood prior to the ADAAA. I suppose we will never know the answer to these questions since it was apparently never raised. One can’t help but wonder if an opportunity was missed here, but we don’t know all the facts.
2. Interesting uses of the phrase “undue hardship,” and, “fundamental alteration.” It is easy to confuse undue hardship with undue burden since the terms essentially mean the same thing. Nevertheless, it is proper to use undue hardship with respect to title I matters and to use undue burden with respect to title II and title III matters. Also, from reading this decision, you can see how undue burden in the logistical sense is being used in the same sense as fundamental alteration (I have been arguing for years that it makes sense to adopt that approach, including even with respect to undue hardship under title I of the ADA).
3. This case may have useful application to a similar scenario. That is, what if a student fails a step of the examination because the testing entity does not comply with its obligations under the ADA to reasonably accommodate the tester where the tester has requested reasonable accommodations? A school may want to think twice about letting such a person go from that program where that student can demonstrate that reasonable accommodations were requested and it is quite possible that the denial was not in accordance with the testing entity’s ADA obligations. Of course, such an approach would mean the school would be in the position of second-guessing the testing entity. Preventing that problem could mean the school working with the student to make the best case for testing accommodations to the testing entity. Otherwise, the second-guessing situation would be a definite possibility that the school wants to prevent liability for wrongful dismissal from the program.
4. The Second Circuit’s position stating:
Since the record contains no evidence indicating whether those considerations were evaluated when determining the reasonableness of the accommodation sought by the plaintiff, the Second Circuit Court of Appeals declined to give deference ordinarily accorded to the professional and academic judgments of educational institutions. To do otherwise would allow academic decisions to disguise truly discriminatory requirements.
I find this position very significant because it communicates to schools that hiding behind academic decisions to justify discriminatory decisions or decisions not made after doing the proper ADA analysis, will not be supported by the courts. What this means, for example, is that a school should be hesitant about relying on facially discriminatory standards and saying that discrimination is countenanced by those standards because they have no choice. For example, many programs have technical standards they have to satisfy as part of their accreditation process. Those standards, if my experience is any indication, often screen out persons with disabilities. Enforcing technical standards to a particular individual without going through the ADA analysis may well be a scenario where the court will not give deference to that decision.
5. Burdens of proof can be extremely complicated. In my opinion, this decision offers an easy to understand approach to burdens of proof with respect to reasonable accommodation requests in the educational context.