Amended September 23, 2014 Palmer College of Chiropractic v. Davenport Civil Rights Commission and Aaron Cannon

IN THE SUPREME COURT OF IOWA
No. 12–0924
Filed June 27, 2014
Amended September 23, 2014
PALMER COLLEGE OF CHIROPRACTIC,
Appellee,
vs.
DAVENPORT CIVIL RIGHTS COMMISSION and AARON CANNON,
Appellants.
Appeal from the Iowa District Court for Scott County, Gary D.
McKenrick, Judge.
Chiropractic school sought judicial review of civil rights
commission’s determination school had discriminated on the basis of
disability. The district court reversed the decision of the civil rights
commission. REVERSED AND REMANDED WITH INSTRUCTIONS.
Judith J. Morrell, Davenport, for appellant Davenport Civil Rights
Commission.
Scott C. LaBarre and Susan Rockwood Kern of LaBarre Law
Offices, P.C., Denver, Colorado, and Alan O. Olson of Olson Law Office,
P.C., Des Moines, for appellant Aaron Cannon.
Robert D. Lambert of Stanley, Lande & Hunter, P.C., Davenport,
for appellee.
2
Mary Kay Klimesh and Karen L. Stephenson of Seyfarth Shaw LLP,
Chicago, Illinois, and Amanda G. Jansen of Ahlers & Cooney, P.C., Des
Moines, for amicus curiae National University of Health Sciences.
Debra L. Hulett and Katie L. Graham of Nyemaster Goode, P.C.,
Des Moines, for amicus curiae Logan College of Chiropractic.
Meghan Sidhu, Baltimore, Maryland, and Alan O. Olson of Olson
Law Office, Des Moines, for amicus curiae National Federation of the
Blind.
Thomas G. Abram of Vedder Price, P.C., Chicago, Illinois, and
Mark E. Weinhardt, William B. Ortman, and Danielle M. Shelton of
Weinhardt & Logan, P.C., Des Moines, for amicus curiae National Board
of Chiropractic Examiners.
3
HECHT, Justice.
A student requested a chiropractic school make accommodations
for his visual disability. When the school denied the requested
accommodations, the student filed a complaint with the civil rights
commission in the community where the school is located. The
commission found the school failed to comply with applicable federal and
state disability laws and granted the student relief. The school sought
judicial review, and the district court reversed the commission’s ruling.
Upon appellate review, we reverse the district court’s ruling and remand
to the district court for reinstatement of the commission’s final agency
action.
I. Background Facts and Proceedings.
Palmer College of Chiropractic (Palmer) is a chiropractic school
with campuses located in Iowa, Florida, and California. At its Davenport,
Iowa location, Palmer administers bachelor of science and doctor of
chiropractic programs. Aaron Cannon applied to Palmer’s bachelor of
science program at its Davenport, Iowa location, in the early spring of
2004.
Cannon had informed Palmer he was blind early in the application
process. Palmer directed him to its contact person for students with
disabilities, and Cannon met with the representative that spring. At that
meeting, Cannon explained he had sometimes taken examinations with
the assistance of a sighted reader in the past, he planned on completing
the graduate program’s undergraduate prerequisites and matriculating
in the graduate program in March 2005, and he was in the process of
registering and exploring additional accommodations for his blindness
with the Iowa Department for the Blind (IDOB). The Palmer
representative told Cannon she would discuss this information further
4
with key representatives of Palmer. She also revealed to Cannon,
however, that Palmer had in the summer of 2002 adopted certain
technical standards for admission to and graduation from its degree
programs.
The technical standards adopted for each of Palmer’s three
campuses across the country require that degree candidates have
“sufficient use of vision, hearing, and somatic sensation necessary to
perform chiropractic and general physical examination, including the
procedures of inspection, palpation, auscultations, and the review of
radiographs as taught in the curriculum.” Based on these standards,
the Palmer representative explained, Cannon would find it difficult, if not
impossible, to enter and complete Palmer’s graduate program.
Despite the caution Palmer’s representative expressed in the spring
2004 meeting, Cannon was admitted to Palmer’s undergraduate program
a few months later. He was also provisionally admitted to the graduate
program, contingent on his successful completion of the required
undergraduate coursework—without, apparently, any further inquiry as
to if or how Cannon might satisfy Palmer’s technical standards. Cannon
enrolled in July 2004 and began coursework in the undergraduate
program.
In August, shortly after enrolling, Cannon met again with Palmer’s
disability representative to discuss possible accommodations. The
Palmer representative indicated she would arrange a meeting with
Palmer’s Disability Steering Committee in the next two weeks to further
discuss possibilities. While waiting for that meeting to materialize,
Cannon sent the Palmer representative an email detailing his skills and
capabilities for dealing with certain visual challenges. He noted in the
email his familiarity with various adaptive technologies, including
5
technologies for note taking and producing tactile versions of images and
diagrams, and his history of success in previous classes having
significant visual components. Two trimesters later, Cannon had
successfully completed the graduate program’s required undergraduate
coursework, achieving a cumulative grade point average of 3.44 on a 4.0-
point scale. 1
As he neared completion of the undergraduate coursework, a
meeting with Palmer’s Disability Steering Committee was finally arranged
in February 2005. Cannon reiterated his interest in preparing for and
enrolling in the graduate program at the meeting. The steering
committee again expressed doubt Cannon would be able to complete the
program because Palmer’s technical standards required sufficient use of
vision. Cannon suggested several possible accommodations for the
visual components of the curriculum, including a sighted reader and
modifications of certain practical examinations, while acknowledging he
could not yet anticipate each challenge that might present itself in the
graduate program. The steering committee suggested these could not
constitute acceptable accommodations for certain diagnostic portions of
the curriculum and explained Cannon would therefore reach a “stoppage
point,” after which he would no longer be able to meet Palmer’s
requirements for advancement in the program. That point, the steering
committee advised, would occur at the beginning of the fifth semester—
the point at which students were slated to begin radiology and other
diagnostic coursework. Cannon proposed that a sighted assistant might
1The record reveals Cannon’s grade point average may have been negatively
affected by the fact he missed his anatomy final in the winter of 2005 to be with his
wife, who gave birth on the same day.
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communicate to him the pertinent visual information in these courses
enabling him to analyze it and to learn to make diagnoses accordingly.
The steering committee expressed doubt as to the feasibility of
Cannon’s proposed accommodation, suggesting it would place too much
responsibility on the assistant. The committee thus repeated its position
that the beginning of the fifth semester would constitute the stoppage
point, but Cannon proposed they cross that bridge later after further
investigation. Given the committee’s apparent reliance on the recently
adopted technical standards in concluding Cannon’s proposed
accommodations were unacceptable, Cannon asked about the purpose of
the standards and whether they might be modifiable. The committee
explained modification would compromise Palmer’s compliance with
standards promulgated by the Council on Chiropractic Education (CCE),
the national accreditation body. The CCE standards, the committee
explained, were “not negotiable.”
Cannon was undeterred and enrolled in the graduate program,
apparently without objection from Palmer, a few days later. Cannon
believed with further investigation, he and Palmer could find an
accommodation that would allow him to continue in the program and
eventually graduate. Two weeks after his meeting with the steering
committee, Cannon sent a letter to Palmer’s president, expressing his
frustration with the trajectory the meeting had taken. In the letter,
Cannon noted he was aware of numerous blind individuals who had
become successful chiropractors in the past, including at least two who
had graduated from Palmer. In addition, Cannon explained IDOB had at
its disposal “a wealth of information about strategies and techniques” for
coping with some of the challenges Palmer foresaw and suggested Palmer
7
should consult with IDOB before rejecting out of hand his requests and
suggestions for accommodation.
Palmer responded to Cannon’s letter a month and a half later in
mid-April. Palmer explained its adoption of technical standards was
consistent with the purposes of the Americans with Disabilities Act (ADA)
of 1990 and the earlier-existing Section 504 of the Rehabilitation Act
(Rehabilitation Act). Those laws proscribed discrimination on the basis
of disability, Palmer explained, but they did not require an institution to
provide accommodations or curricular modifications if they would
fundamentally alter the institution’s educational program. The
curricular modifications Palmer had granted to blind students in the
past, Palmer explained, would not satisfy its current technical standards,
and thus any similar modification now would constitute a fundamental
alteration of its new program as defined by the technical standards.
Nevertheless, Palmer explained, it would contact IDOB to inquire about
other possible accommodations.
A month later, two Palmer representatives met with a
representative from IDOB. Notes from the meeting indicate “no new
information” was presented—Palmer explained its technical standards
were necessary for accreditation and the accommodations proposed by
Cannon would not satisfy these standards. The IDOB representative
pointed out a blind individual had recently graduated from medical
school in Wisconsin and the school had maintained its accreditation, but
the Palmer representatives declined to explore further the investigation
and accommodations the school had made. Instead, they stressed the
importance of their own technical standards and their concern about the
time, effort, and money Cannon had already expended and would
continue to expend despite their indications he would be unable to
8
complete the program. Although the IDOB representative noted the
meeting “concluded with no real progress made,” the Palmer
representatives stated they remained open to further guidance from the
IDOB.
Cannon received a meeting report, summarizing the Palmer–IDOB
conversation, from the IDOB representative shortly thereafter.
Frustrated, and without any indication Palmer intended further
investigation, Cannon filed a notice of withdrawal from the graduate
program a few weeks later in early June 2005, before completing final
coursework for his first trimester in the program. His grade report for
the incomplete trimester indicated two grades of “C,” five grades of “No
Credit,” and withdrawal from one class. Cannon later testified that prior
to withdrawal, he had been confident he would receive strong grades for
the term given his prior record at Palmer, but because he had withdrawn
before final examinations and therefore missed and received no credit for
them, he was left with the weak record on the report. 2
Cannon filed a complaint with the Davenport Civil Rights
Commission (commission) in July, contending Palmer had discriminated
against him on the basis of his disability in violation of the Davenport
Civil Rights Ordinance (DCRO), the Iowa Civil Rights Act (ICRA), and
federal antidiscrimination laws. After reviewing the facts and applicable
laws, the commission found probable cause existed to demonstrate
discrimination, and the matter came before the commission for public
hearing in February 2010. The two-day hearing featured testimony and
exhibits from Cannon, Cannon’s wife, three Palmer faculty members and
2The record reveals Cannon’s withdrawal near the end of the trimester came too
late for Cannon to receive grades of “Incomplete.” He nevertheless chose to withdraw
and miss his final examinations, which resulted in the grades of “C” and “No Credit.”
9
officials, and a blind graduate of Palmer who now works as a
chiropractor.
A few months after the hearing, the commission hearing officer
issued a proposed order, finding Cannon had proved by a preponderance
Palmer had discriminated on the basis of his blindness and granting
proposed relief of damages equal to Cannon’s previous cost of
attendance, emotional distress damages, and attorney fees and costs.
Cannon submitted exceptions to the proposed order, requesting
readmission with reasonable accommodation and an order enjoining
Palmer’s strict application of its technical standards to blind individuals.
Palmer submitted its own exceptions, requesting that the commission
reject the proposed order in its entirety, dismiss the complaint, and
assess costs to Cannon.
The parties addressed their exceptions at oral argument before the
commission in August. After deliberations at its next two closed
sessions, the commission issued a final order adopting the hearing
officer’s proposed conclusion that Cannon had proven disability
discrimination by a preponderance of the evidence. The commission
supplemented its final order with the injunctive readmission and
accommodation Cannon had requested.
In support of its order, the commission set forth extensive findings
of fact and conclusions of law. More specifically, the commission found
Cannon was a person with a disability and “an otherwise qualified”
student under the relevant federal, state, and municipal code provisions;
he had requested specific accommodations for his blindness from Palmer
on multiple occasions; and Palmer had denied these requests and failed
to engage in the interactive investigative process required by federal and
state disability law. Further, the commission found, Cannon’s requested
10
accommodations would not fundamentally alter Palmer’s curriculum,
because Palmer had previously graduated blind students from its Iowa
campus, Palmer’s California campus already waived certain vision-
specific competencies in its technical standards based on California
antidiscrimination law, Palmer had presented no evidence its
accreditation had been compromised by accommodations similar to those
Cannon had requested or by the California competency waivers, and
Palmer had presented no evidence state licensing boards would exclude
blind individuals from practice. Based on these factual findings, the
commission concluded Cannon was otherwise qualified to participate in
Palmer’s graduate program and was denied participation in the program
on the basis of his disability. The commission therefore concluded
Palmer’s strict application of its technical standards to Cannon violated
the DCRO, ICRA, and the ADA.
Palmer sought judicial review of the final order. The district court,
explaining it was reviewing the commission’s legal conclusions for errors
of law and the commission’s factual findings for substantial evidence,
reversed the commission’s order. Without explicitly suggesting the
commission’s factual findings were unsupported by substantial evidence,
the district court determined the commission had failed, as a matter of
law, to give appropriate deference to Palmer’s identification of its
curricular requirements, and therefore concluded substantial evidence
supported Palmer’s claims that Cannon’s suggested accommodation was
unreasonable and would constitute a fundamental alteration of the
Palmer curriculum.
Cannon appealed the district court decision and we retained the
appeal.
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II. Scope and Standards of Review.
Our general assembly has directed that final decisions of
municipal civil rights commissions shall be reviewable to the same extent
as final decisions of the Iowa Civil Rights Commission (ICRC). See Iowa
Code § 216.19 (2013). We review decisions of the ICRC according to the
standards delineated in Iowa’s Administrative Procedure Act, set forth in
chapter 17A of the Iowa Code. Id. § 216.17; see Botsko v. Davenport Civil
Rights Comm’n, 774 N.W.2d 841, 844 (Iowa 2009). We are therefore
bound by the commission’s findings of fact if supported by substantial
evidence. Botsko, 774 N.W.2d at 844; see also Iowa Code § 17A.19(10)(f).
We will not, however, give deference to the commission’s interpretation of
provisions of law not vested in its discretion and will review those
interpretations for legal errors. See Rent-A-Ctr., Inc. v. Iowa Civil Rights
Comm’n, 843 N.W.2d 727, 730 (Iowa 2014); Botsko, 774 N.W.2d at 844;
see also Iowa Code § 17A.19(10)(c). We apply the standards of chapter
17A on appeal to determine if our conclusions are the same as the
district court’s conclusions. See Sunrise Ret. Cmty. v. Iowa Dep’t of
Human Servs., 833 N.W.2d 216, 219 (Iowa 2013).
III. Discussion.
Section 216.9 of ICRA provides, in general terms, that “[i]t is an
unfair or discriminatory practice for any educational institution to
discriminate on the basis of . . . disability in any program or activity.”
Iowa Code § 216.9. The DCRO sets forth the same general language in
extending its own protections against disability discrimination, to
“provide for the execution within the city of the policies embodied in the
Iowa Civil Rights Act of 1965 and” related federal civil rights laws. See
Davenport, Iowa, Mun. Code § 2.58.010(B) (2013); id. § 2.58.125(A).
Federal law extends its own disability discrimination protections in both
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the ADA and Section 504 of the Rehabilitation Act. See Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101–12213 (2006);
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794.
We have often explained we will look to the ADA and cases
interpreting its language, as well as cases interpreting the Rehabilitation
Act, for guidance as we analyze disability discrimination claims brought
under ICRA. See, e.g., Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d
324, 329 (Iowa 1998). We have also explained we may look to the
regulations underlying the federal acts in our analysis. Id. While these
authorities are often persuasive, we note we are also guided by the
breadth of the protections very clearly set forth in both ICRA and the
DCRO. See Iowa Code § 216.18(1) (“This chapter shall be construed
broadly to effectuate its purposes.”); Davenport, Iowa, Mun. Code
§ 2.58.020 (“This chapter shall be construed broadly to effectuate its
purpose.”).
While ICRA and the DCRO set forth their protections in general
terms, without language of limitation, the Rehabilitation Act and the ADA
contain additional content in their statutory provisions. The ADA,
applicable to all academic institutions receiving federal funding, provides
that “no qualified individual with a disability shall, by reason of such
disability . . . be denied the benefits of the . . . programs . . . of a public
entity, or be subjected to discrimination by any such entity.” 42 U.S.C.
§ 12132. The Rehabilitation Act sets forth a similar standard, providing
“[n]o otherwise qualified individual with a disability . . . shall, solely by
reason of her or his disability . . . be denied the benefits of . . . any
program or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794. Both the ADA and the Rehabilitation Act specifically prohibit
discrimination against those with disabilities based not just on
13
“affirmative animus,” but also any discrimination based on
thoughtlessness, apathy, or stereotype. 3 See, e.g., Alexander v. Choate,
469 U.S. 287, 295–97, 105 S. Ct. 712, 717–18, 83 L. Ed. 2d 661, 668–69
(1985).
In the context of higher education, Rehabilitation Act regulations
explain a qualified individual is one “who meets the academic and
technical standards requisite to admission or participation in the
recipient’s education program or activity.” 34 C.F.R. § 104.3(l)(3) (2013).
Educational institutions are required, however, to provide “such
modifications . . . as are necessary” to aid individuals in meeting these
academic and technical standards, to ensure requirements do not
discriminate on the basis of disability. Id. § 104.44(a). The ADA
incorporates a closely related accommodation requirement in defining a
“qualified individual with a disability” as one “who, with or without
reasonable modifications to rules, policies, or practices . . . or the
provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs
or activities provided.” 42 U.S.C. § 12131(2). Various courts have
explained the ADA’s “reasonable modification” requirement and the
Rehabilitation Act’s accommodation requirement impose coextensive
3The ADA goes further, defining discrimination in the context of public
accommodation to include: (1) any use of criteria that unnecessarily “screen out” or
“tend to screen out” individuals with disabilities; (2) failure to make nonfundamental,
reasonable modifications of “policies, practices or procedures” when modification is
necessary to accommodate those with disabilities; and (3) failure to take necessary
steps “to ensure that no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals.” 42 U.S.C.
§ 12182(b)(2)(A) (defining “discrimination” under the ADA); see also 34 C.F.R.
§§ 104.43–.44 (2013) (implementing Section 504 of the Rehabilitation Act); 28 C.F.R. §
36.103 (explaining the ADA “shall not be construed to apply a lesser standard than the
standard to be applied” under Section 504).
14
obligations, and the terms and standards may often be used
interchangeably. See, e.g., Wong v. Regents of Univ. of Cal., 192 F.3d
807, 816 n.26 (9th Cir. 1999).
Evaluating these statutory and regulatory standards in cases
involving claims of disability discrimination in higher education, courts
have required a claimant establish the following elements: (1) the
claimant is a person with a disability under the relevant statute or
statutes; (2) the claimant is qualified to participate in the program or, in
other words, can meet the essential eligibility requirements of the
program with or without reasonable accommodation; and (3) the
claimant was denied the benefits of the program because of his or her
disability. 4 See, e.g., id. at 816; Ohio Civil Rights Comm’n v. Case W.
Reserve Univ., 666 N.E.2d 1376, 1383 (Ohio 1996). We have previously
adopted a substantially similar framework for analysis in the context of
employment discrimination claims brought under ICRA and its federal
analogues. See, e.g., Boelman v. Manson State Bank, 522 N.W.2d 73, 79
(Iowa 1994) (requiring discharge based on disability in place of denial of
benefits based on disability). The parties have not suggested we apply a
different framework for purposes of analyzing education discrimination
claims brought under ICRA and the DCRO, and thus we apply our
familiar disability discrimination framework to each of the claims at
issue here. Further, because the parties do not dispute that Cannon is a
person with a disability under each of the relevant statutes and do not
seriously dispute that he was denied the benefits of the program because
4In analyzing claims brought under the ADA and Rehabilitation Act, courts have
added a fourth element: evidence the institution receives federal financial assistance or
is a public entity. See, e.g., Wong, 192 F.3d at 816. The parties concede here Palmer
receives federal financial assistance for purposes of Cannon’s federal claims and the
federal assistance requirement is inapplicable to Cannon’s state and municipal claims.
15
of his disability, we consider here only the question of whether Cannon
was qualified to participate in the Palmer program with reasonable
accommodation. 5
1. The meaning of “Qualified with Reasonable Accommodation.” As
noted, the relevant federal acts and regulations define qualified
individuals as those individuals who, with reasonable accommodation or
“modification,” can meet the “essential eligibility requirements” 6 of the
institution. 42 U.S.C. § 12131(2). 7 In interpreting the meaning of
reasonable accommodation, the United States Supreme Court has noted
regulations implementing the Rehabilitation Act provide reasonable
“[m]odifications may include changes in the length of time permitted for
the completion of degree requirements, substitution of specific courses
required for the completion of degree requirements, and adaptation of the
5Palmer notes other courts have sometimes expressed the “was denied the
benefits of the program” element of the analysis as a requirement that a claimant has
been “dismissed” from the program. See, e.g., Wong, 192 F.3d at 816. Because Cannon
withdrew from the graduate program on his own, Palmer suggests he may not have met
a “dismissal” requirement. We note, however, the relevant statutes here require only
that a claimant be “denied the benefits” of the program for purposes of making out a
claim. 42 U.S.C. § 12132; 29 U.S.C. § 794; Iowa Code § 216.9(1)(a); Davenport, Iowa,
Mun. Code § 2.58.125(A)(1). Palmer concedes Cannon would have been denied the
benefits of the program by the fifth trimester, if not earlier, based on his blindness, and
thus we need not address the element further here.
6As noted, relevant Rehabilitation Act regulations set forth slightly different
language in explaining a qualified individual may be required to “meet[] the academic
and technical standards requisite to admission or participation in the recipient’s
education program or activity.” 45 C.F.R. § 84.3(l)(3).
7We note the Rehabilitation Act adds the term “otherwise” in prohibiting
discrimination against an “otherwise qualified individual with a disability.” 29 U.S.C.
§ 794(a). Numerous courts have explained despite this slight difference in terminology,
the analyses of claims under both laws proceeds in much the same way. See, e.g.,
Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 150 n.7 (2d Cir.
1999) (noting this linguistic difference between ADA and Rehabilitation Act); Nelson v.
Miller, 170 F.3d 641, 649 (6th Cir. 1999) (noting analyses under the two provisions do
not differ significantly). See generally Zukle v. Regents of Univ. of Cal., 166 F.3d 1041,
1045 n.11 (1999) (collecting cases pointing out relationship between the ADA and
Rehabilitation Act).
16
manner in which specific courses are conducted.” See Se. Cmty. Coll. v.
Davis, 442 U.S. 397, 408 n.9, 99 S. Ct. 2361, 2368 n.9, 60 L. Ed. 2d
980, 990 n.9 (1979) (quoting 45 C.F.R. § 84.44); see also 29 C.F.R.
§ 1630.2(o)(2) (providing, in employment discrimination context,
“[r]easonable accommodation may include but is not limited to: . . .
acquisition or modifications of equipment or devices; appropriate
adjustment or modifications of examinations, training materials or
policies; the provision of qualified readers or interpreters; and other
similar accommodations for individuals with disabilities” (emphasis
omitted)).
Further, the Supreme Court has noted, reasonable modifications
in the form of “[a]uxiliary aids may include taped texts, interpreters or
other effective methods . . ., readers in libraries for students with visual
impairments, classroom equipment adapted for use by students with
manual impairments, and other similar services and actions.” Davis,
442 U.S. at 408 n.9, 99 S. Ct. at 2368 n.9, 60 L. Ed. 2d at 990 n.9
(quoting 45 C.F.R. § 84.44); Nelson v. Thornburgh, 567 F. Supp. 369, 380
(E.D. Pa. 1983) (“[T]he provision of readers is an express HHS example of
reasonable accommodation.” (Internal quotation marks and brackets
omitted.)). Reasonable modification need not include, however, “ ‘devices
or services of a personal nature.’ ” 8 Davis, 442 U.S. at 408 n.9, 99 S. Ct.
8Palmer suggests this “personal nature” principle might apply to Cannon given
his status as the only student at Palmer currently requesting accommodation. We find
the suggestion unpersuasive—we cannot conclude the implementing regulation in
question simply absolves institutions of their obligation of accommodation in cases
where requests are made by individuals, as opposed to groups of students. Instead, we
believe the regulation indicates the “personal nature” principle is directed to services
and devices dedicated exclusively to individuals—services that cannot, by their nature,
typically also be used as accommodation by other individuals. See 34 C.F.R.
§ 104.44(d)(2). Palmer has not suggested Cannon’s requests fit that latter description.
17
at 2368 n.9, 60 L. Ed. 2d at 990 n.9 (quoting 45 C.F.R. § 84.44). In
addition, an accommodation may not be reasonable, the Supreme Court
has explained, if it imposes “undue financial [or] administrative burdens”
on the institution, or if it requires “a fundamental alteration in the
nature of [the] program” offered. Id. at 410–12, 99 S. Ct. at 2369–70, 60
L. Ed. 2d at 990–92. Because the parties have not raised below or on
appeal an issue of undue burden with respect to possible
accommodations, and because Cannon’s requests fit plausibly within the
range of accommodations recognized as reasonable by courts and the
ADA’s implementing regulation, we consider here only the issue of
whether accommodation would constitute a fundamental alteration of
Palmer’s program.
2. The general contours of the fundamental alteration analysis. In
Davis, the Supreme Court encountered a case of a student with
substantial hearing loss who sought nursing training at Southeastern
Community College, in pursuit of her eventual goal of state nursing
certification in North Carolina. Id. at 400, 99 S. Ct. at 2364, 60
L. Ed. 2d at 985–86. Upon learning of the student’s hearing loss in the
application process, Southeastern consulted its entire nursing faculty,
an outside audiologist, and the director of the North Carolina nursing
board, as part of its process of determining whether the student could be
admitted to the Southeastern program and whether the student could
later safely participate in Southeastern’s clinical training program. Id. at
401–02, 99 S. Ct. at 2364–65, 60 L. Ed. 2d at 985–86. Based largely on
the views of the nursing board director that the student had “hearing
limitations which could interfere with her safely caring for patients,” and
limitations that could make it “impossible for [the student] to participate
safely in the normal clinical training program,” Southeastern denied the
18
student admission. Id. at 401–02, 99 S. Ct. at 2365, 60 L. Ed. 2d at
985–86.
Relying on those conclusions, the Supreme Court explained
“Southeastern, with prudence, could [therefore] allow [the student] to
take only academic classes.” Id. at 409–10, 99 S. Ct. at 2369, 60
L. Ed. 2d at 990. Whatever benefits the student might have received
from an academic course of study, the Court explained, “she would not
receive even a rough equivalent of the training a nursing program
normally gives.” Id. at 410, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990. That
kind of modification, the Court concluded, would constitute a
“fundamental alteration” of Southeastern’s nursing program far greater
than the reasonable “modification” required by federal laws and
regulations. Id.
In reaching its conclusion on the fundamental alteration question
thirty-five years ago, however, the Supreme Court explained the line
between reasonable accommodation and fundamental alteration would
not always be so neatly drawn in the future. Id. at 412, 99 S. Ct. at
2370, 60 L. Ed. 2d at 992. “It is possible to envision situations,” the
Court observed, “where an insistence on continuing past requirements
and practices” may deprive “genuinely qualified” persons of opportunities
for participation in educational programs. Id. Technological advances,
the Court explained, should be expected to enhance and appropriately
adapt opportunities for individuals with disabilities without undue
burden, and refusals to modify programs accordingly may then
constitute discrimination under the relevant laws. Id. at 412–13, 99
S. Ct. at 2370, 60 L. Ed. 2d at 992. Identification of instances where
refusal to accommodate constitutes discrimination, the Court
emphasized, would therefore remain an important and ongoing
19
responsibility of those tasked with implementation and application of our
disability discrimination laws. Id.
Courts later applying the teachings of Davis have explained it
“struck a balance” between the statutory rights ensuring those with
disabilities “meaningful access” to the benefits offered by educational
institutions, and “the legitimate interests” of those institutions “in
preserving the integrity of their programs.” Alexander, 469 U.S. at 300,
105 S. Ct. at 720, 83 L. Ed. 2d at 671; Case W. Reserve Univ., 666
N.E.2d at 1384 (quoting Alexander). To strike that balance
appropriately, the Supreme Court has observed, courts and educational
institutions alike must take great care not to define the benefit or
program “in a way that effectively denies otherwise qualified . . .
individuals [with disabilities] the meaningful access to which they are
entitled.” Alexander, 469 U.S. at 301, 105 S. Ct. at 720, 83 L. Ed. 2d at
672.
Recognizing this fine line, lower courts have elucidated two
principles in the fundamental alteration analysis that guide us in our
inquiry here. First, courts have recognized that in considering the
interests of educational institutions in the integrity of their programs,
some deference to the institution’s professional or academic judgment
may often be appropriate. See, e.g., Wong, 192 F.3d at 817; Wynne v.
Tufts Univ. Sch. of Med., 932 F.2d 19, 25 (1st Cir. 1991). Second,
however, whether and the extent to which that deference is appropriate
depends heavily on the institution’s satisfaction of several obligations.
See Wong, 192 F.3d at 817–18; Wynne, 932 F.2d at 25–26. The
institution, for example, has a “real obligation” to seek out “suitable
means of reasonably accommodating” individuals with disabilities and to
submit “a factual record indicating” it “conscientiously carried out this
20
statutory obligation.” Wynne, 932 F.2d at 25–26; see also Wong, 192
F.3d at 818 (“Subsumed within this standard is the institution’s duty to
make itself aware of the nature of the student’s disability [and] to explore
alternatives for accommodating the student[.]”). That obligation requires
an individualized and extensive inquiry—an institution must “carefully
consider[] each disabled student’s particular limitations and analyz[e]
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.” Wong, 192 F.3d at 826; see Mark H. v.
Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010) (“ ‘[M]ere speculation
that a suggested accommodation is not feasible falls short of the
reasonable accommodation requirement; [the Rehabilitation Act] create[s]
a duty to gather sufficient information from the disabled individual and
qualified experts as needed to determine what accommodations are
necessary.’ ” (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1136
(9th Cir. 2001))); Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir.
1988) (“[T]he determination of whether physical qualifications are
essential functions of a job requires the [fact finder] to engage in a highly
fact-specific inquiry. Such a determination should be based upon more
than statements in a job description and should reflect the actual
functioning and circumstances of the particular enterprise involved.”
(Citation omitted.)); see also Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S.
273, 287, 107 S. Ct. 1123, 1130–31, 94 L. Ed. 2d 307, 320 (“[T]he [fact
finder] 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, or unfounded fear . . . .”).
21
Furthermore, institutions cannot merely look to “accepted
academic norms,” in exploring reasonable accommodations—because
reasonable alternatives may often “involve new approaches or devices
quite beyond ‘accepted academic norms.’ ” Wynne, 932 F.2d at 26
(quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct.
507, 513, 88 L. Ed. 2d 523, 532 (1985)); cf. Strathie v. Dep’t of Transp.,
716 F.2d 227, 231 (3d Cir. 1983) (rejecting “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” (footnote omitted)); Pushkin v. Regents of
Univ. of Colo., 658 F.2d 1372, 1383 (10th Cir. 1981) (“[The Rehabilitation
Act] provides that a recipient of federal financial assistance may not
discriminate on the basis of handicap, regardless of whether there is a
rational basis for so discriminating. The inquiry has to be on whether
the University has, in fact, discriminated on the basis of handicap. The
mere fact that the University acted in a rational manner is no defense to
an act of discrimination.”).
We require institutions to fulfill these obligations, courts have
explained, because “courts still hold the final responsibility for enforcing
the [disability discrimination laws] . . . [and w]e must ensure that
educational institutions are not ‘disguis[ing] truly discriminatory
requirements’ as academic decisions.” Wong, 192 F.3d at 817 (quoting
Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999)).
Only if we determine an institution has satisfied its obligation of detailed,
individualized inquiry is it appropriate to defer to the institution’s
judgment regarding the integrity of its program. See Zukle, 166 F.3d at
1048; see also Wong, 192 F.3d at 817–18; Pandazides v. Va. Bd. of Educ.,
22
946 F.2d 345, 349 (4th Cir. 1991) (“Accordingly, defendants cannot
merely mechanically invoke any set of requirements and pronounce the
handicapped applicant or prospective employee not otherwise qualified.
The district court must look behind the qualifications. To do otherwise
reduces the term ‘otherwise qualified’ and any arbitrary set of
requirements to a tautology.”).
3. The appropriate level of deference here. On appeal, Palmer
contends the commission erred, as a matter of law, in failing to grant
appropriate deference to Palmer’s position regarding Cannon’s ability to
complete the graduate program without fundamental alteration, and
relies on two distinct grounds.
First, Palmer relies on an earlier Iowa higher education case where
we explained we “ ‘may not override’ ” an institution’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.’ ” See North
v. State, 400 N.W.2d 566, 571 (Iowa 1987) (quoting Ewing, 474 U.S. at
225, 106 S. Ct. at 513, 88 L. Ed. 2d at 532). In North, however, we were
not faced with claims of disability discrimination under the ADA or
ICRA—instead, we considered breach of contract, tortious interference,
and substantive due process and § 1983 civil rights claims. See id. at
568–71. We imported that principle of academic deference from a
Supreme Court case that had also considered a due process claim, where
the Court had no occasion to consider the level of deference to be
accorded in discrimination cases and had taken pains to note it was not
considering claims beyond those before it. See Ewing, 474 U.S. at 225,
106 S. Ct. at 513, 88 L. Ed. 2d at 532 (“It is important to remember that
this is not a case in which the procedures used by the University were
23
unfair in any respect; quite the contrary is true. Nor can the Regents be
accused of concealing nonacademic or constitutionally impermissible
reasons for expelling Ewing[.]”); North, 400 N.W.2d at 571 (quoting
Ewing). Given that context, we are unpersuaded by Palmer’s reliance on
North because, as numerous courts have explained, the application of
deference based on “accepted academic norms” is inadequate in the
disability discrimination context—courts must go significantly further in
their inquiries to ensure inappropriate generalizations do not deny
individuals meaningful access to the benefits provided by educational
institutions. Wynne, 932 F.2d at 26 (“[Ewing] was a context where no
federal statutory obligation impinged on the academic administrators;
their freedom to make genuine academic decisions was untrammeled.”);
Strathie, 716 F.2d at 231; Pushkin, 658 F.2d at 1383; see also
Guckenberger v. Boston Univ., 8 F. Supp. 2d 82, 89 (D. Mass. 1998)
(noting “a court should not determine that an academic decision is a
‘substantial departure from accepted academic norms’ simply by
conducting a head-count of other universities”); Laura F. Rothstein,
Health Care Professionals with Mental and Physical Impairments:
Developments in Disability Discrimination Law, 41 St. Louis U. L.J. 973,
995 (1997) [hereinafter Rothstein] (observing New Jersey federal court
“recognized the importance of individualized determinations” in holding
state medical boards’ use of physical and mental health inquiries “as a
screening device” “were likely in violation of Title II of the ADA” and
observing “these judges were affirming the principle that discrimination
on the basis of disability cannot be justified by generalizations about
such disabilities”).
Perhaps just as importantly for purposes of our analysis here, the
Supreme Court in Ewing explained it was granting deference there only
24
after noting “the faculty’s decision was made conscientiously and with
careful deliberation, based on an evaluation of the entirety of Ewing’s
academic career.” Ewing, 474 U.S. at 225, 106 S. Ct. at 513, 88
L. Ed. 2d at 532. To the extent the Ewing deference analysis may inform
our analysis in the context of disability discrimination, then, we note the
Ewing court’s emphasis on the extensive individualized investigation
suggests, much like courts actually considering disability discrimination
claims have, application of any deference may only be appropriate after
an institution has established it has fulfilled its obligations of
conscientious inquiry. Id.; see also Edward N. Stoner II & J. Michael
Showalter, Judicial Deference to Educational Judgment: Justice
O’Connor’s Opinion in Grutter Reapplies Longstanding Principles, As
Shown by Rulings Involving College Students in the Eighteen Months
Before Grutter, 30 J.C. & U.L. 583, 611 (2004) (noting one principle
“underlying judicial deference in ADA cases involving students is that
persons trained to have educational judgment are not necessarily experts
in disability accommodations”).
Palmer’s second ground for its contention the commission erred in
failing to extend appropriate deference—namely, that Palmer fulfilled its
obligation of extensive individualized inquiry before denying Cannon the
opportunity to participate in its program—is no more persuasive. Palmer
advances a two-pronged exposition of its investigation with respect to
Cannon. First, Palmer recounts the numerous discussions its faculty
had in developing the technical standards it seeks to apply here, points
to the evidence it presented below supporting its initial creation and
adoption of the standards, and notes the “standards are based upon
[Palmer’s] teaching experiences with disabled students including those
visually impaired.” Second, Palmer explains the “technical standards are
25
applied on a case-by-case basis depending upon whether or not the
disabled individual meets those standards.” Based on this exposition, we
cannot conclude the commission’s findings regarding Palmer’s approach
were unsupported by substantial evidence or that the commission erred
in determining Palmer failed to advance evidence of an inquiry
resembling anything like the fact-specific, individualized inquiry required
by the caselaw.
On the first point, Palmer appears to concede it seeks to invoke its
standards in Cannon’s case as an “essential requirement” based on no
investigation at all of Cannon’s condition or ability to perform with a
reader or the various technologies he noted he had or could have at his
disposal. Instead, Palmer would invoke the standards based on its
experiences with past individuals with disabilities. That strict,
generalized invocation of Palmer’s technical standard falls far short, we
think, of the conscientious, interactive, student-specific inquiry required
by the caselaw. See, e.g., Wong, 192 F.3d at 819 (“Dean Lewis failed to
discuss Wong’s proposal with any of the professionals who had worked
with Wong to pinpoint his disability and help him develop skills to cope
with it.”); Laura Rothstein, Disability Law and Higher Education: A Road
Map for Where We’ve Been and Where We May Be Heading, 63 Md. L.
Rev. 122, 142 (2004) (“In determining that it would not be a substantial
alteration to accommodate Casey Martin by allowing the use of a golf cart
in professional golf tournament play, the [Supreme Court] emphasized
the importance of an individualized assessment. The Court noted that
for Martin the use of a cart was not a fundamental alteration because the
essential aspect of fatigue was still present for him. The Court added
that other requests for golf carts would have to be individually assessed
to ensure that others would not be unfairly advantaged.”); see also
26
D’Amico v. N.Y. State Bd. of Law Exam’rs, 813 F. Supp. 217, 223
(W.D.N.Y. 1993) (“The Board’s opinion as to what is ‘reasonable’ for a
particular applicant can be given very little weight when the Board has
no knowledge of the disability or disease, no expertise in its treatment,
and no ability to make determinations about the physical capabilities of
one afflicted with the disability or disease.”).
Palmer fares no better on the second point—it invokes the phrase
“case-by-case basis,” but then concedes it applies its technical standards
depending solely on whether the individual meets the standards. See
Case W. Reserve Univ., 666 N.E.2d at 1391 (Resnick, J., dissenting)
(“[B]lanket requirements are not ipso facto bona fide. CWRU cannot
exclude all blind medical school applicants without first investigating
and considering reasonable accommodations . . . any more than it can
exclude an individual applicant without conducting such an
investigation.”); Rothstein, 41 St. Louis U. L.J. at 994 (“One theme that is
consistent in virtually all disability discrimination decisions, even those
involving academic institutions or health care professions, is that an
assessment about whether a particular individual is otherwise qualified
should be made on an individualized basis. Courts have usually been
wary of generalized determinations that a particular condition renders all
persons with that impairment unqualified to carry out a particular job.”).
If there is an inquiry hidden in that apparent tautology as to how or
whether the standards might be modified in any individual case, or more
importantly, an indication as to the way the inquiry was made for
Cannon, we cannot discern it. Palmer’s generalized application did little
to satisfy its obligation of individualized investigation here. 9 See, e.g.,
9We think it important to emphasize here Palmer’s apparent concession that
provision of Cannon’s requested accommodations would not fundamentally alter its
27
Wynne, 932 F.2d at 26 (explaining institution must seek means of
reasonably accommodating individual and “[i]f the institution submits
undisputed facts demonstrating that the relevant officials within the
institution considered alternative means . . . the court could rule as a
matter of law that the institution had met its duty”); see also Pandazides,
946 F.2d at 349 (“The district court must look behind the qualifications.
To do otherwise reduces the term ‘otherwise qualified’ and any arbitrary
set of requirements to a tautology.”); Bentivegna v. U.S. Dep’t of Labor,
694 F.2d 619, 621 (9th Cir. 1982) (“[Davis] cannot mean [an institution]
can discriminate by establishing restrictive ‘program requirements’ where
it could not so discriminate in making individual employment
decisions.”).
Turning to the commission’s analysis of the deference question, we
note the commission set forth extensive factual findings bolstering its
conclusion Palmer failed to satisfy its investigative obligation. More
specifically, the commission offered substantial evidence in support of
the following findings: Palmer engaged in minimal interaction with
Cannon; Palmer failed to investigate, with or without Cannon, how he
might actually use a reader given a specific task; Palmer failed to
___________________
curriculum until the fifth trimester may constitute probative evidence of the
reasonableness of duties to both provide and specifically investigate these
accommodations in the preceding trimesters. See, e.g., Lane v. Pena, 867 F. Supp.
1050, 1070 (D.D.C. 1994) (“Moreover, the Defendants admit that such requirements, if
any, do not even apply to students such as Lane who have not yet reached their third
year. Consequently, the Defendants cannot simply point to that statute and definitively
conclude that maintaining eligibility for such a commission is an essential requirement
to remaining at the USMMA and that, therefore, their actions were consistent with
Section 504.”), vacated in part on other grounds, 518 U.S. 187, 116 S. Ct. 2092, 135
L. Ed. 2d 486 (1996); Alicia Ouellette, Patients to Peers: Barriers and Opportunities for
Doctors with Disabilities, 13 Nev. L.J. 645, 666 (2013) (“The available evidence indicates
that medical schools graduate more medical students with sensory and motor
disabilities than they admit, suggesting that they make accommodations for students
who develop specific disabilities after they have started their course of study.”).
28
investigate with the requisite depth how other former blind students had
performed specific tasks in the past; Palmer failed to investigate reports
of successful blind students at other schools and successful blind
chiropractic practitioners; Palmer failed to investigate reports of
technologies used successfully elsewhere in school and professional
settings; and Palmer failed to engage individuals with experience
teaching Cannon or other blind individuals, among other failures. Given
those findings, and given the principle from the relevant caselaw that an
institution’s academic judgments are owed minimal, if any, deference in
the absence of a showing the institution has fulfilled its investigative
obligations, we cannot conclude the commission has erroneously
interpreted the applicable law on deference here. See Iowa Code
§ 17A.19(10)(c); Wong, 192 F.3d at 818 (“We do not defer to the academic
institution’s decision in the present case because the record that the
University presented falls short of [the requirement of in-depth,
individual analysis].”).
4. The commission’s fundamental alteration analysis: specific
fundamental alteration principles and their application here. Because
Palmer has failed to establish it met the legal prerequisites for deference
to its determination accommodation would constitute fundamental
alteration here, we turn to the commission’s analysis of the fundamental
alteration inquiry. Cf. Wong, 192 F.3d at 819–20 (noting, in different
appellate posture, court would “not defer to the institution’s decision”—
instead, it would “examine the rejection of Wong’s request for an eight-
week reading period de novo”).
At the outset, we note numerous courts have explained
determinations of reasonable accommodation and fundamental alteration
within the meaning of the ADA generally require flexible, fact-specific
29
inquiries and are typically resolved as questions of fact. See, e.g.,
Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir. 1998)
(“The reasonableness of a requested accommodation is a question of
fact.”); Long v. Howard Univ., 439 F. Supp. 2d 68, 80 (D.D.C. 2006)
(“Based on the evidence proffered by the parties thus far, whether the
modifications would in fact constitute a fundamental alteration is a
question requiring jury resolution.”); see also Staron v. McDonald’s Corp.,
51 F.3d 353, 356 (2d Cir. 1995) (“Although neither the ADA nor the
courts have defined the precise contours of the test for reasonableness, it
is clear that the determination of whether a particular modification is
‘reasonable’ involves a fact-specific, case-by-case inquiry that considers
among other factors, the effectiveness of the modification in light of the
nature of the disability in question and the cost to the organization that
would implement it.”); Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th
Cir. 1996) (“[W]e have held that the determination of what constitutes
reasonable modification is highly fact-specific, requiring case-by-case
inquiry.”); Zimple v. Hancock Fabrics, Inc., 2013 WL 4069553, *3 (N.D.
Iowa Aug. 12, 2013) (denying summary judgment on fundamental
alteration question and noting “there are many questions of fact in the
record on just what th[e] essential functions [of the job] were”); Powers v.
MJB Acquisition Corp., 993 F. Supp. 861, 868 (D. Wyo. 1998) (“[C]ourts
that have considered the issue in any depth have generally followed . . . a
fact-specific, case-by-case inquiry. . . . Regardless of how the standard is
phrased, one thing is clear: in most circumstances, the determination of
what constitutes a reasonable modification or accommodation is a fact-
intensive question ill-suited for resolution at the summary judgment
stage.” (quoting Staron, 51 F.3d at 356)); Boelman, 522 N.W.2d at 80
(explaining fact finder must answer question of whether claimant “could
30
perform the essential functions of the job” and, if not, whether any
reasonable accommodation would enable performance); cf. Kerri Lynn
Stone, The Politics of Deference and Inclusion: Toward a Uniform
Framework for the Analysis of “Fundamental Alteration” Under the ADA,
58 Hastings L.J. 1241, 1270 (2007) (“Although the ultimate question [of
fundamental alteration] is quite fact-driven and circumstance-specific,
courts have no guidelines as to the scope of the considerations they
ought to look at regarding the facts and the law surrounding this most
philosophical question . . . .”). But see Sande L. Buhai, Practice Makes
Perfect: Reasonable Accommodation of Law Students with Disabilities in
Clinical Placements, 36 San Diego L. Rev. 137, 146 (1999) (“In
determining whether a function is essential, courts must address each
case individually. Whether the plaintiff can perform the essential job
functions with reasonable accommodations is a mixed question of law
and fact, which involves primarily a factual inquiry.”).
Before examining the commission’s findings regarding fundamental
alteration, however, we think it prudent to note several principles courts
and commentators have developed to aid the fact finder in determining
whether an accommodation is reasonable or might constitute a
fundamental alteration in a given case. See Easley by Easley v. Snider,
36 F.3d 297, 302 (3d Cir. 1994) (noting courts “cannot rely” on
institution’s characterization of its program, because the institution “may
attempt to define the benefit in a way that ‘effectively denies otherwise
handicapped individuals the meaningful access to which they are
entitled’ ” (quoting Alexander, 469 U.S. at 301, 105 S. Ct. at 720, 83 L.
Ed. 2d at 672)). Courts considering education discrimination claims
have often looked to fundamental alteration considerations from the
employment context for guidance. See, e.g., Wong, 192 F.3d at 820–21.
31
Implementing regulations for the ADA’s employment provision suggest
courts consider several factors in determining whether particular duties
constitute fundamental or essential functions of the job. See 29 C.F.R.
§ 1630.2(n)(3); see also Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787
(8th Cir. 1998). Those factors include, among others: job descriptions
prepared for advertising or used when interviewing applicants for the job;
the amount of time spent on the job performing the function in question;
consequences of not requiring the person to perform the function; the
work experience of persons who have held the job; and/or the current
work experience of persons in similar jobs. 29 C.F.R. § 1630.2(n); see
also Rothstein, 41 St. Louis U. L.J. at 976–77 (“The function may be
essential because that function is the purpose of the position, because
there are a limited number of employees among whom the function can
be distributed, or because the function is highly specialized and the
individual was hired specifically because of his or her expertise in that
specialty.”).
Applying these “essential functions” principles from employment
cases, numerous courts in the education context have found the fact that
institutions have previously granted accommodations the same as or
similar to the accommodation at issue persuasive evidence the
accommodation is reasonable and does not fundamentally alter the
institution’s curriculum. See, e.g., Wong, 192 F.3d at 820 (“The fact that
the school previously made the exact modification . . . that Wong
requested . . . is certainly persuasive evidence from which a [fact finder]
could conclude that the accommodation was reasonable.”); Zukle, 166
F.3d at 1048–49 (considering student’s request for eight weeks off
between medical school rotations and noting institution’s previous
decisions to grant requests for decelerated schedule were probative of
32
reasonableness); Matthews v. NCAA, 179 F. Supp. 2d 1209, 1226–27
(E.D. Wash. 2001) (“Most notably, the NCAA already has granted Plaintiff
two waivers, including one waiver of [its rule requiring student-athletes
to earn seventy-five percent of their annual credit hours during the
regular academic year]. The Court finds it difficult, particularly in light
of the individualized inquiry required by [PGA Tour, Inc. v.] Martin, [532
U.S. 661, 121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001),] to see how granting
a third waiver to Plaintiff would fundamentally alter the NCAA’s purpose,
when the first two waivers did not.”); see also Forbes v. St. Thomas Univ.,
Inc., 768 F. Supp. 2d 1222, 1234 (S.D. Fla. 2010) (explaining school
could not invoke “across-the-board” GPA requirement as basis for
dismissal and noting court could not “ignore the fact that [school dean]
did provide accommodations, and with them Forbes earned a
[satisfactory GPA].”). In so doing, these courts have applied the general
principle from the ADA caselaw that an institution will bear a
“particularly heavy” burden in establishing an accommodation is
unreasonable where other institutions have provided accommodation for
the same deficit without significant issue. Am. Council of the Blind v.
Paulson, 525 F.3d 1256, 1272 (D.C. Cir. 2008) (“[B]ecause other currency
systems accommodate the needs of the visually impaired, the [Secretary
of the Treasury’s] burden in demonstrating that implementing an
accommodation would be unduly burdensome is particularly heavy.”);
see also Tamara v. El Camino Hosp., 964 F. Supp. 2d 1077, 1084–85
(N.D. Cal. 2013) (“Tamara has provided the service animal policies for a
number of stand-alone psychiatric hospitals and individual wards within
general hospitals, whose policies allow for the admittance of service dogs.
. . . In light of the broad allowance for service animals, El Camino has
not met its burden to show that the presence of service dogs within the
33
psychiatric ward is likely to fundamentally alter the nature of the facility
nor has it sufficiently established that it conducted an intensive fact-
based inquiry.” (Citations omitted.)).
Similarly, courts have considered the current and past job
experiences of those with the same disability in considering whether
modification might fundamentally alter a professional curriculum. See,
e.g., Lane v. Pena, 867 F. Supp. 1050, 1070 (D.D.C. 1994) (“[G]iven that
many people with diabetes have obtained merchant marine licenses, and
at least 50 people with diabetes mellitus are currently operating under a
merchant marine license at sea, the Court finds that the rigid naval
reserve requirements are not ‘essential’ to at least one purpose of the
program, namely, training officers for the merchant marine.”), vacated in
part on other grounds, 518 U.S. 187, 116 S. Ct. 2092, 135 L. Ed. 2d 486(1996). Courts have also looked to an individual’s past academic success
and considered whether later professional licensure actually requires
performance of the institution’s proposed function. Shaywitz v. Am. Bd.
of Psychiatry & Neurology, 675 F. Supp. 2d 376, 390–91 (S.D.N.Y. 2009)
(“Given Shaywitz’s alleged competence and success as a medical student,
resident, and fellow, and that the Board has largely eliminated its Part II
Oral Exam, the Court finds it plausible that certifying Shaywitz without
his having to pass the live-patient portion of the Part II Oral Exam, based
on the facts as alleged at the pleading stage, would not ‘fundamentally
alter the nature of’ the Board-certification process.” (Internal citations
omitted.)).
With those propositions in mind, we turn to the commission’s
findings with respect to fundamental alteration. We note we are
concerned on appeal with two principles regarding the commission’s
findings. First, in reviewing the commission’s factual findings we must
34
determine merely whether the evidence “supports the findings actually
made” by the commission and need not concern ourselves with whether
the evidence might also support a different finding. See Meyer v. IBP,
Inc., 710 N.W.2d 213, 218 (Iowa 2006). Second, in reviewing the
commission’s application of the law to the facts, we may look to other
grounds of error, such as erroneous interpretation of law, irrational
reasoning, or failure to consider relevant facts, in determining whether
the commission has abused its discretion in its application. Id. at 218–
19.
As noted above, the commission made several noteworthy findings
in support of its determination Cannon’s proposed accommodation was
reasonable. First, the commission found the record revealed no evidence
state licensing boards required sight, or interpretation of radiographic
images in precisely the manner required by Palmer, for purposes of
licensure. Second, Palmer presented no evidence the course
modifications and waivers it grants at its California campus have
jeopardized its accreditation with national accrediting bodies. Third, at
least two blind students had graduated previously from Palmer’s
Davenport campus and are currently licensed and practicing
successfully.
Palmer asserts, however, that it cannot accommodate Cannon, and
the commission’s decision must therefore be reversed as a matter of law,
because all chiropractic students must be able to see radiographic
images. We find this contention unpersuasive. Palmer itself concedes at
least twenty percent of current chiropractic practitioners practice without
“the ability to take plain film radiographs in their office[],” and concedes
the size of the fraction is currently on the rise. These concessions are at
odds with the contention radiographic image interpretation—regardless
35
whether in the narrow sense Palmer has defined it or even the more
general sense of having the equipment available—must constitute an
“essential” component of the education or practice of chiropractic.
Furthermore, as Palmer has noted, frequent consultation between
chiropractors and radiology specialists is “oftentimes” “part of the clinical
practice [of chiropractic].”
We also find it instructive that numerous medical schools,
ostensibly recognizing these realities, have admitted blind students and
made accommodation in recent years. See, e.g., Sarah M. Eickmeyer et
al., North American Medical Schools’ Experience with and Approaches to
the Needs of Students with Physical and Sensory Disabilities, 87 Acad.
Med. 567, 569–70 (2012) (finding at least sixty partially- or totally-blind
students matriculated at U.S. medical schools between 2001 and 2010
and noting schools have provided accommodations ranging from “[an]
assistant for observation” to “[an] assistant for physical exam[ination]”).
The accommodations made by these schools, coupled with Palmer’s own
previous accommodations, weigh particularly heavily against Palmer’s
fundamental alteration defense. See Am. Council of the Blind, 525 F.3d
at 1272; Tamara, 964 F. Supp. 2d at 1084–85. Recent proposed
rulemaking by the Department of Justice bolsters this position, as it
seeks “to ensure that medical diagnostic equipment, including
examination tables, examination chairs, . . . and other imaging
equipment used by health care providers for diagnostic purposes are
accessible to and usable by individuals with disabilities.” Medical
Diagnostic Equipment Accessibility Standards, 77 Fed. Reg. 6916, 6916
(proposed Feb. 9, 2012) (to be codified at 36 C.F.R. pt. 1195); see also
Alicia Ouellette, Patients to Peers: Barriers and Opportunities for Doctors
36
with Disabilities, 13 Nev. L.J. 645, 661 (2013) (“Congress also included
incentives in the Affordable Care Act for accessibility.”).
We conclude substantial evidence supports each of the
commission’s findings. 10 Furthermore, given the widespread recognition
that the fundamental alteration inquiry is fact-intensive and typically to
be resolved as a question of fact, given the recognition in the caselaw
that each of the factors considered by the commission may constitute
persuasive evidence on the issue of reasonable accommodation, and
given the high burden courts have imposed where the same institution or
other institutions have made reasonable accommodation for the same
deficit, we cannot conclude the commission has erroneously interpreted
or irrationally applied the applicable law in concluding Palmer failed to
10Despite Palmer’s representations to the contrary, the medical literature also
provides substantial support for the proposition that accommodation of individuals with
sensory and physical deficits need not fundamentally alter the provision of medical
education. See, e.g., Sarah M. Eickmeyer et al., North American Medical Schools’
Experience with and Approaches to the Needs of Students with Physical and Sensory
Disabilities, 87 Acad. Med. 567, 568–70 (2012) (emphasizing the substantial number of
blind students accommodated at medical schools in recent years and explaining
“[m]any have questioned the emphasis placed on specific physical and sensory
capabilities in defining the technical skills required by medical schools”); Michael J.
Reichgott, The Disabled Student as Undifferentiated Graduate: A Medical School
Challenge, 279 JAMA 79, 79 (1998) (“In this era of technologic diagnostics and
professional assistants, the ‘essential functions’ of medical education might be restated
as acquiring fundamental knowledge; developing communication skills; interpreting
data; integrating knowledge to establish clinical judgment; and developing appropriate
professional attitudes and behaviors.”); see also Joel A. DeLisa & Peter Thomas,
Physicians with Disabilities and the Physician Workforce: A Need to Reassess Our
Policies, 84 Am. J. Physical Med. & Rehabilitation 5, 6 (2005) (“Healthcare professionals
adequately trained for the future will need to know what informational resources to use;
how to gather necessary data; how to integrate complex information, make diagnoses,
and develop treatment plans; and how to effectively use changing technological
resources, work with teams, and communicate with diverse populations. These skills
are largely cognitive and not physical, raising questions about the adequacy of the
current approach to medical training.”); cf. Demetrius Moutsiakis & Thomas Polisoto,
Reassessing Physical Disability Among Graduating US Medical Students, 89 Am. J.
Physical Med. & Rehabilitation 923, 926–27 (2010) (noting trend of steadily declining
medical school graduation rates over the last four decades for individuals with physical
and sensory disabilities and recommending schools “remove the requirement of the
undifferentiated graduate to allow [individuals] with, for example, blindness to train in
other capacities such as preventive medicine and public health”).
37
establish provision of Cannon’s requested accommodations would
constitute fundamental alteration of its curriculum on these facts. See
Iowa Code § 17A.19(10)(c), (f), (i), (j), (l).
IV. Conclusion.
We conclude substantial evidence supports the commission’s
factual findings and the commission has not erred in interpreting the
relevant laws or applying them to the facts at issue here. We therefore
reverse the decision of the district court and remand the case to the
district court with instructions to affirm the commission’s order.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All justices concur except Waterman and Mansfield, JJ., who
dissent.
38
#12–0924, Palmer Coll. v. Davenport CRC
WATERMAN, Justice (dissenting).
I respectfully dissent. The majority elevates political correctness
over common sense. Obscured in its lengthy decision is the fact our
court and the Davenport Civil Rights Commission are requiring Palmer
College of Chiropractic to permit a student, blind since birth, to interpret
X-rays based on what an untrained reader tells him the X-ray films
depict and treat patients through vigorous spinal adjustments relying on
that interpretation. Aaron Cannon failed to prove such an
accommodation is reasonable. As the district court recognized, “vision is
indispensable for several critical functions that chiropractic students and
professionals must perform, such as reviewing X-rays, analyzing
radiographs, and assessing physical symptoms.” I defer to no one in my
admiration for Cannon and his blind attorney and the challenges they
both have overcome, but there is a point at which an accommodation
ceases to be reasonable, and it has been met here.
What is next? Are we going to require the Federal Aviation
Administration to hire blind air traffic controllers, relying on assistants to
tell them what is appearing on the screen? The principle is the same
here. A misinterpreted X-ray could lead to improper treatment and
lifelong paralysis. X-ray interpretation requires training and skilled
judgment to reach correct conclusions based on shades and shadows of
complex bony structures. That is why many physicians with twenty–
twenty vision choose to outsource interpretation of X-rays to radiologists.
It is ludicrous to override Palmer’s academic decision and require it to
permit a blind person to interpret X-rays for patient treatment based on
what someone else claims he or she is seeing.
39
The majority’s intrusion into academic judgment on professional
healthcare standards is unprecedented. No other court in the country
has forced an academic institution to allow a blind student to interpret
X-rays relying on an untrained sighted assistant. The majority fails to
confront the well-reasoned decision of the Ohio Supreme Court applying
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701–797b, to
uphold a medical school’s decision to deny admission to a blind student
who, like Cannon, requested a personal assistant to read X-rays and
help with clinical examinations. Ohio Civil Rights Comm’n v. Case W.
Reserve Univ., 666 N.E.2d 1376, 1383, 1386 (Ohio 1996). The district
court correctly followed Case Western in concluding such an
accommodation was unreasonable and would fundamentally alter
Palmer’s program. I would affirm. Our court and the local commission
comprised of laypersons have no business second-guessing the
professional academic judgment of our nation’s leading college of
chiropractic. Palmer has reasonably concluded that its graduates
personally must be able to see and interpret X-rays. A student who has
never seen a spine cannot reliably interpret spinal X-rays based on what
someone else tells him the films show.
I would follow the Ohio Supreme Court’s reasoning in Case
Western, the facts of which are strikingly similar to this case. A blind
student, Cheryl Fischer, applied to medical school at Case Western
Reserve University. Id. at 1379. To evaluate applicants, Case Western
applied technical standards promulgated by the Association of American
Medical Colleges (AAMC), which required that candidates must be able to
“observe a patient accurately at a distance and close at hand.” Id. at
1379–80. The AAMC technical standards explained, “The use of a
trained intermediary means that a candidate’s judgment must be
40
mediated by someone else’s power of selection and observation.” Id. at
1380. Case Western “concluded that a blind student would be unable to
complete the requirements of the medical school program.” Id. An
associate professor of surgery at Case Western emphasized that “Fischer
would be unable to exercise independent judgment when reading an
X-ray, unable to start an I.V., and unable to effectively participate in the
surgery clerkship.” Id. (noting further that Fischer would be unable to
“identify tissue and organ structures through a microscope” or “observe
how such structures are affected by disease”). “In the[] medical
educators’ opinions, the use of an intermediary would interfere with the
student’s exercise of independent judgment—a crucial part of developing
diagnostic skills.” Id. at 1387.
The Ohio Supreme Court deferred to Case Western’s academic
judgment, as we should defer to Palmer’s. The Ohio Supreme Court
emphasized that an educational institution is in the best position to
determine whether a student will be able to successfully complete the
program:
[Case Western]’s decision not to modify its program by
waiving course requirements or permitting intermediaries to
read X-rays or perform physical examinations is an academic
decision. Courts are particularly ill-equipped to evaluate
academic requirements of educational institutions. As a
result, considerable judicial deference must be paid to
academic decisions made by the institution itself unless it is
shown that the standards serve no purpose other than to
deny an education to the handicapped.
Id. at 1386 (citations omitted). Deferring to the AAMC technical
standards and the medical educators’ opinions, the court acknowledged
that waiving the requirement to read an X-ray—or using an intermediary
to perform that function—would fundamentally alter the nature of Case
Western’s program. Id. at 1387; see also Cunningham v. Univ. of N.M. Bd.
41
of Regents, 531 F. App’x 909, 919–20 (10th Cir. 2013) (affirming
dismissal of vision-related disability claims by medical student, noting
“[t]o the extent [the plaintiff] avers UNM should have changed its
program requirements, such an accommodation would not be
reasonable”). The Case Western court further recognized that providing a
blind student additional supervision and waiving courses for the student
is not required under the United States Supreme Court’s decision in
Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S. Ct.
2361, 2369, 60 L. Ed. 2d 980, 990 (1979), when such accommodations
would not change the fact that the student will be unable to satisfy the
degree requirements. Case W. Reserve Univ., 666 N.E.2d at 1386–87.
Our case is also analogous to Davis. In Davis, the United States
Supreme Court upheld a nursing college’s decision to deny admission to
an applicant with a hearing disability, holding the law “does not
encompass the kind of curricular changes that would be necessary to
accommodate [the applicant] in the nursing program.” Davis, 442 U.S.
at 409, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990. Similarly to the nursing
applicant, Cannon “would not receive even a rough equivalent of the
training” Palmer normally gives. Id. at 410, 99 S. Ct. at 2369, 60
L. Ed. 2d at 990. “Such a fundamental alteration in the nature of a
program is far more than the ‘modification’ the regulation requires.” Id.
Like the proposed accommodations for the deaf applicant in Davis, it
appears unlikely “Cannon could benefit from any affirmative action that
the regulation reasonably could be interpreted as requiring.” Id. at 409,
99 S. Ct. at 2368, 60 L. Ed. 2d at 990. Therefore, Palmer, “with
prudence,” could not allow Cannon to graduate from the program. Id. at
409, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990.
42
As the majority notes, many practicing chiropractors lack X-ray
equipment and rely on other professional radiologists or chiropractors to
interpret their patients’ X-rays. Cannon, however, is not asking for a
waiver to allow him to rely on the interpretation of a qualified expert.
Rather, his requested accommodation is to interpret X-rays himself,
based on what an untrained sighted assistant tells him. In any event,
the law does not obligate Palmer to waive program requirements. The
plaintiff in Case Western argued the school should waive certain medical-
school skill requirements because she planned to pursue a practice in
psychiatry, in which those skills were unnecessary. 666 N.E.2d at 1386.
The Ohio Supreme Court rejected this argument, stating:
The goal of medical schools is not to produce
specialized degrees but rather general degrees in medicine
which signify that the holder is a physician prepared for
further training in any area of medicine. As such, graduates
must have the knowledge and skills to function in a broad
variety of clinical situations and to render a wide spectrum
of patient care. All students, regardless of whether they
intend to practice in psychiatry or radiology, are required to
complete a variety of course requirements, including
rotations in pediatrics, gynecology, and surgery.
Id. at 1387. In the same way, it is Palmer’s prerogative to decide the
skills necessary to graduate with a chiropractic degree. A student’s
choice to focus his or her practice on certain skills to the exclusion of
others does not exempt that student from successfully completing degree
requirements.
The majority recognizes that it is appropriate to give deference to
an institution’s professional or academic judgment, yet refuses to defer to
Palmer because the commission concluded Palmer did not seek out
“suitable means of reasonably accommodating” individuals with
disabilities. I disagree that Palmer’s investigation fell short. Palmer met
with Cannon multiple times, met Iowa Department of the Blind
43
representatives, and expressed a willingness to continue the dialogue.
Nothing in the record supports a conclusion that further investigation by
Palmer would have found a way for Cannon to personally see and
interpret X-rays. Technological advancements may one day allow blind
individuals to interpret X-rays. No such “app” exists today. Cannon
simply has not satisfied his burden to prove a reasonable
accommodation is possible regarding X-ray interpretation. See Boelman
v. Manson State Bank, 522 N.W.2d 73, 80 (Iowa 1994) (“[T]he plaintiff
must produce enough evidence to make a facial showing that reasonable
accommodation is possible.”). The majority would require Palmer to
jump through additional hoops to establish what the record already
makes clear—Cannon cannot satisfy the chiropractic program
requirement that students master X-ray interpretation.
We should defer to Palmer’s conclusion that accommodating
Cannon would fundamentally alter its chiropractic program. In North v.
State, we recognized “ ‘[c]onsiderations of profound importance counsel
restrained judicial review of the substance of academic decisions.’ ” 400
N.W.2d 566, 571 (Iowa 1987) (quoting Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 225, 106 S. Ct. 507, 513, 88 L. Ed. 2d 523, 532 (1985)).
Though North did not involve a claim under the ADA, the principle of
deference expressed in that opinion is a truism with broad application.
When presented with ADA claims, courts “have overwhelmingly extended
some level of deference to schools’ professional judgments regarding
students’ qualifications when addressing disability discrimination
claims.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 463
(4th Cir. 2012) (collecting cases and noting, “[b]ecause we are . . . at a
comparative disadvantage in determining whether Halpern is qualified to
continue in the Doctor of Medicine program and whether his proposed
44
accommodations would effect substantial modifications to the Medical
School’s program, we accord great respect to Wake Forest’s professional
judgments on these issues”). I would follow the United States Supreme
Court’s guidance: “When judges are asked to review the substance of a
genuinely academic decision . . . they should show great respect for the
faculty’s professional judgment.” Ewing, 474 U.S. at 225, 106 S. Ct. at
513, 88 L. Ed. 2d at 532.
The majority relies on Wong v. Regents of University of California,
192 F.3d 807 (9th Cir. 1999), and Wynne v. Tufts University School of
Medicine (Wynne I), 932 F.2d 19 (1st Cir. 1991), but the standards
elucidated in those cases favor Palmer. The Court of Appeals for the
Ninth Circuit recognized in Wong that:
Faculty members and administrators of a professional
school are unquestionably in the best position to set
standards for the institution and to establish curricular
requirements that fulfill the school’s purpose of training
students for the work that lies ahead of them.
192 F.3d at 825–26. The court noted deference to an academic
institution is inappropriate only if the institution has not “carefully
consider[ed] each disabled student’s particular limitations and analyz[ed]
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.” Id. at 826. The court declined to defer to
the University of California’s decision to dismiss a student because “the
record contain[ed] facts from which a reasonable jury could conclude
that the school made th[at] decision[] for arbitrary reasons unrelated to
its academic standards.” Id. In contrast, the record shows Palmer
carefully considered whether it could accommodate Cannon’s disability
with a sighted assistant to look at X-rays. Palmer ultimately and
45
reasonably concluded it could not. No reasonable fact finder could
conclude Palmer’s decision was unrelated to academic standards.
In Wynne I, the Court of Appeals for the First Circuit set forth the
appropriate analysis “to assess whether an academic institution
adequately has explored the availability of reasonable accommodations
for a handicapped individual.” 932 F.2d at 26.
If the institution submits 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 lowering academic standards or requiring substantial
program alteration, the court could rule as a matter of law
that the institution had met its duty of seeking reasonable
accommodation.
Id. (noting “[i]n most cases, we believe that, as in the qualified immunity
context, the issue of whether the facts alleged by a university support its
claim that it has met its duty of reasonable accommodation will be a
‘purely legal one’ ” (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9,
105 S. Ct. 2806, 2816 n.9, 86 L. Ed. 2d 411, 426 n.9 (1985))). The
student in Wynne I asked Tufts University School of Medicine to
accommodate his disability by using a different testing method than
multiple choice to evaluate his progress. Id. at 22. The court concluded
the evidence was insufficient to grant summary judgment in favor of
Tufts because the record did not demonstrate the school considered
possible alternatives or discussed the unique qualities of multiple choice
examinations. Id. at 28. The court therefore remanded the case for
further fact-finding. Id.
Following remand, Tufts provided additional evidence explaining
why “ ‘the multiple choice format provides the fairest way to test the
students’ mastery of the subject matter of biochemistry.’ ” Wynne v.
46
Tufts Univ. Sch. of Med. (Wynne II), 976 F.2d 791, 794 (1st Cir. 1992).
With the additional evidence, the district court concluded Tufts met the
standard elucidated in Wynne I and entered summary judgment in favor
of Tufts. Wynne II, 976 F.2d at 793. The student again appealed to the
First Circuit. See id. The Wynne II court acknowledged that “Tufts’
explanations, though plausible, are not necessarily ironclad.” Id. at 795.
But, the court emphasized “the point is not whether a medical school is
‘right’ or ‘wrong’ in making program-related decisions.” Id. Rather, “[t]he
point is that Tufts, after undertaking a diligent assessment of the
available options,” decided “no further accommodation could be made
without imposing an undue (and injurious) hardship on the academic
program.” Id. The First Circuit therefore affirmed summary judgment
for Tufts, stating “the undisputed facts contained in the expanded
record, when considered in the deferential light that academic
decisionmaking deserves, meet the required standard.” Id. at 796
(emphasis added) (citation omitted). Likewise, Palmer has provided
compelling explanations why accommodating Cannon’s disability with a
sighted assistant to look at X-rays for him would fundamentally alter the
chiropractic program. We owe deference to Palmer’s explanations.
In order to accommodate Cannon, Palmer would have had to lower
its academic standards—something the law does not require. See Wong,
192 F.3d at 826 (noting an institution is responsible for “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” (emphasis added)); Wynne II, 976 F.2d at
795 (deferring to Tufts’ conclusion that accommodating the student
“would require substantial program alterations, result in lowering
47
academic standards, and devalue Tufts’ end product—highly trained
physicians carrying the prized credential of a Tufts degree”). As a
professor explained, the Palmer radiology curriculum has three primary
goals: to teach students to (1) produce diagnostic-quality X-rays, (2)
interpret and glean clinical information off of X-ray film, and (3) apply the
information in a clinical sense for case management. The district court
summarized how Cannon’s proposed accommodation—a sighted
assistant to describe X-rays to him—would work: “Cannon asks a series
of questions to the assistant, gradually posing those questions more and
more specifically as needed in order to obtain the information necessary
for him to visualize the displayed image or text.” A professor explained
why this accommodation would compromise Palmer’s academic
requirements:
I haven’t been able to determine how a sighted assistant
could give information to the blind student that would not
compromise [the student’s] independent judgment of those
films. [For the student to ask] the question, is the film too
dark or is the film too light, immediately [the reader’s]
answer to that is a judgment and it compromises the
student’s ability to independently make that judgment
themselves.
....
And so if a student is told . . . the film is too dark,
somebody has already made the judgment for them . . . . If
they are told the patient is not aligned or they ask the
question is the patient aligned and the answer is no, then
that, once again, leverages their independent judgment as to
whether or not the film needs to be repeated and/or what
needs to be done to make the film better.
Essentially, a sighted assistant would have to interpret the X-rays and
then relay that interpretation to Cannon; Cannon would not be
interpreting the X-rays himself. In light of these realities, Palmer
determined that Cannon would be unable to attain the goals of the
48
radiology curriculum. Palmer has demonstrated that a sighted assistant
is not a reasonable accommodation.
It is not as if Palmer adopted the technical standards lightly or did
not consider Cannon’s arguments for why he should be admitted.
Palmer has carefully considered the skills necessary to become a
chiropractor and determined that the ability to read X-rays is integral.
As one Palmer professor explained, the technical standards Palmer
adopted are “clearly based from an educational perspective on
individuals that we have interacted with in the curriculum and what has
worked and what has not worked.” Palmer adopted its technical
standards in order to comply with the Council on Chiropractic
Education’s national accreditation standards, further supporting the
school’s conclusion that vision is necessary to earn a chiropractic degree.
See Case W. Reserve Univ., 666 N.E.2d at 1379–80, 1385–86 (deferring to
Case Western’s application of technical standards promulgated by the
AAMC). As noted, Palmer met with Cannon multiple times, met with
Iowa Department of the Blind representatives, and expressed a
willingness to continue the dialogue. Cf. Wong, 192 F.3d at 819, 821
(reversing summary judgment in favor of university when “Dean Lewis
failed to discuss Wong’s proposal with any of the professionals who had
worked with Wong to pinpoint his disability and help him develop skills
to cope with it.”). Yet, Palmer remained convinced that the program
modifications necessary to accommodate Cannon would fundamentally
alter its program.
I do not find it legally significant that Palmer modifies its course
requirements and grants certain waivers for blind students enrolled at its
California campus. California law mandates these accommodations by
statute. See Cal. Bus. & Prof. Code § 1000–8 (West, Westlaw through ch.
49
25 of 2014 Reg. Sess., Res. ch. 1 of 2013–2014 Ex. Sess., and all
propositions on the 6/3/2014 ballot) (stating “[n]o blind person shall be”
denied (1) admission to a chiropractic school, (2) the right to take a
chiropractic exam, (3) a chiropractic diploma, (4) admission into an
examination for a state chiropractic license, or (5) a chiropractic license
“on the ground that he is blind”). That California statute does not apply
extraterritorially in Iowa. Unlike California, the Iowa legislature has not
enacted a statute requiring Palmer to waive requirements for blind
persons. Simply because another state imposes such accommodations
on an institution does not mean that those accommodations are not
fundamental alterations of Palmer’s Iowa academic program. Palmer has
provided ample evidence supporting why Cannon’s proposed
accommodation would fundamentally alter its program, and our inquiry
should end there.
Nor am I convinced otherwise by the fact that blind individuals
have previously graduated from Palmer. These individuals attended
Palmer many years ago. See Case W. Reserve Univ., 666 N.E.2d at 1385
(discounting testimony of blind doctor who graduated from Case Western
because the doctor “attended [the university] twenty years ago, under
entirely different circumstances than proposed today”). The academic
standards of the profession have changed since those individuals
graduated, and uniform technical standards have been adopted. Under
the majority’s analysis, a school could never strengthen its program
requirements for legitimate reasons if the result excludes a disabled
person.
The commission erred, as a matter of law, by failing to defer to
Palmer’s decision that Cannon could not satisfy its academic standards.
See Wynne I, 932 F.2d at 26 (explaining institution must seek means of
50
reasonably accommodating individual and “[i]f the institution submits
undisputed facts demonstrating that the relevant officials within the
institution considered alternative means . . . the court could rule as a
matter of law that the institution had met its duty”). Palmer fulfilled its
obligation of inquiry before denying Cannon’s requested accommodation
of a sighted assistant to read X-rays. Palmer has reasonably concluded
that the ability to personally see and interpret X-rays is essential in order
to successfully diagnose and treat patients, without relying on the
observations of an untrained sighted assistant. Considering the safety of
future patients, there is nothing unreasonable about this requirement.
The majority has not “struck a balance” between the statutory rights
ensuring those with disabilities “meaningful access” to the benefits
offered by educational institutions and “the legitimate interests” of those
institutions in preserving the integrity of their programs. See Alexander
v. Choate, 469 U.S. 287, 300–01, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661,
671–72 (1985). Rather, the majority and the commission have run
roughshod over Palmer’s legitimate interests and the integrity of Palmer’s
chiropractic program. Accordingly, I respectfully dissent.
Mansfield, J., joins this dissent.