Some cases are excellent for providing a roadmap on what to do, other cases are good for getting new lessons so that you can take preventive steps to not run down that path. The particular case here is one of the latter. In Peters v. University of Cincinnati College of Medicine, 2012 WL 3878601 (S.D. Ohio September 6, 2012), the University of Cincinnati College of Medicine dismissed the plaintiff from its program. Id. at *1. The plaintiff was a graduate of Middlebury College, from which she graduated after six years with a dual degree in biology and psychology. Id. While she did not get into medical school right away, she was able to do so after completing a graduate program in molecular, cellular and developmental biology. Id. On entering medical school, the plaintiff struggled immediately and she sought help from an individual tutor, youth tutoring services, and also sought help from a cognitive psychologist. Id. Even so, she did not pass three of the six courses in the first quarter and was placed on academic probation with a referral to the Senior Associate Dean of Student Affairs and Admissions for academic counseling. Id. She was then referred to an individual that was not a psychiatrist but nonetheless decided that the plaintiff was clinically depressed, a victim of battered woman syndrome, and had kind of retarded speech. Id. That individual encouraged the plaintiff to seek help from the University psychiatrist and from the Assistant Dean for Academic Support, which recommendations she followed. Id. She was then given medicine for the depression, which helped with some of the depressive symptoms but did not affect her academic abilities. Id. Nevertheless, she did manage to complete the first year after taking a summer course. Id. During the second year, she continued to seek help but was recommended for dismissal because she did not meet the academic requirements of the second year. Id. It was suspected that the plaintiff had a nonverbal learning disability and ADD but treatment for the ADD was not recommended because it was determined that it was more important to control her depression first. Id. Accordingly, the appeals board did not vote to dismiss the plaintiff because they recognized that she had only begun treatment for seasonal affective disorder and that ADD and a nonverbal learning disability were both treatable conditions. Id. The Dean agreed with the appeals board and the plaintiff was able to reenroll as a second-year student with certain conditions. Id. The plaintiff managed to pass each of her second-year courses but continued with her academic struggles into the third year. Id. She was very successful in some portions of her studies, but scored poorly on her exams and began to believe that depression was not the obstacle to her academic success. Id.

After returning from a leave of absence, the plaintiff was informed that she would have to take a radiology exam and a remedial surgery exam. Id. Fortunately, for the plaintiff, the psychiatrist that had been treating her retired and a new psychiatrist immediately suspected that she had a learning disorder. Id. at *2. She was then referred to another person, a psychologist at the University, who performed a series of assessments and determined that plaintiff suffered from ADD. Id. He also believed that the ADD had gone undiagnosed for so long because plaintiff’s depression overshadowed it. Id. He was of the opinion that the depression and anxiety that she had were actually secondary effects of the ADD. Id. His conclusion was that the plaintiff’s ADD had significantly limited her ability to function successfully in medical school but with appropriate treatment she should be able to improve satisfactorily. Id. He gave the plaintiff medication for ADD and recommended that she be given additional time for her exams. Id. Despite that recommendation, the medical school required the plaintiff to take her pediatric exam before the end of 2008 shortly before beginning her medication regimen. Id. Not surprisingly, she failed that exam, albeit by only two points, and was recommended for dismissal as a result. While her appeal was pending regarding the dismissal, she took four more exams, each of which she passed. Id. The person who had prescribed the ADD medication attributed her success to her medication regimen, which had stabilized by the time she sat for the other four exams. Id. At her appeal, she presented evidence that when she took the first exam her medication regimen had not been stabilized, and then asked that she be given a chance to retake the exam now that her medication regimen was stabilized. Id. The Doctor who prescribed the ADD medication testified during the appeal process about the ADD diagnosis and the likelihood of plaintiff succeeding in school when properly treated and urged the medical school to rethink the issue in light of how the plaintiff was initially wrongfully categorized. Id. Nevertheless, the appeals board denied her appeal having decided that plaintiff’s history of depression and her ups and downs and her cycling would prevent her from sticking to a regimen that would allow her to be a good physician. Id. The Dean, who had unfettered discretion to adopt or reject the appeal court decision, affirmed the decision because the plaintiff suffered from a pattern of academic and psychiatric difficulties. Id. Plaintiff was terminated from the defendant’s program and filed suit alleging violation of title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Id.

In denying the defendant’s motion for summary judgment, Judge Spiegel of the southern district of Ohio reasoned as follows. First, he simply did not buy that the plaintiff was not a person with a disability. The University of Cincinnati College of Medicine had argued that the plaintiff was not a person with a disability because she had achieved great academic success and therefore, was not significantly restricted in her ability to learn as compared to the average person in the general population. Id. at *5. The court, after noting how the ADAAA had changed the game with respect to figuring out whether a person has a disability, said that it had no trouble finding that the plaintiff was disabled under both the ADA and the Rehabilitation Act. In particular, the court noted that the plaintiff produced evidence showing that ADD affects the learning processes in very significant ways when compared to how other people learn, retain new information, and organize their thoughts. See id. at *6. The court noted that the fact that she graduated from an excellent liberal arts school with a dual degree and was able to succeed in part medical school did not change the court decision, as all that showed was that she was able to achieve some measure of success despite her disability and did not speak to her learning ability as compared to the average person. Id. The court went even further by saying that defendant’s argument flies in the face of congress’ directives and the relevant implementing regulations and that it simply could not endorse defendant’s rationale.

Second, there were problems with the Dean’s decision to uphold the decision of the appeals board. Those problems included: Repeatedly allowing students to continue in the program despite academic challenges that had led to recommendations of dismissal but not doing so in this particular case. Id. at *7; deciding to dismiss her from the program but not taking into account whether granting her request for an accommodation would alter let alone fundamentally alter the program or its standards; Id. not considering the plaintiff’s medical records, the report of the plaintiff’s treating doctor and associated materials, or even plaintiff’s own explanatory letter of appeal; Id. at *8. not speaking prior to his decision to the plaintiff, to the plaintiff’s treating doctor, to the Senior Associate Dean of Student Affairs and Admissions, or to the Assistant Dean for academic support, both of whom had worked extensively with the plaintiff; Id. and not being aware or being able to recall that the plaintiff had been diagnosed with ADD at the time he denied her request for an accommodation. Id.. Accordingly, when the court addressed the issue of whether it was a reasonable request to retake the pediatric exam, it is not surprising in light of these facts, that the court said that a jury could find the request to retake of the exam was a reasonable request to accommodate her ADD. Id.

Finally, the court said that dismissing the plaintiff because the appeals board and the Dean believed she would not make a good physician was sufficient to get the plaintiff pass a motion for summary judgment with respect to her claim that she was mistakenly perceived as having a compilation of psychiatric problems or to having incapacitating depression. Id. at *9.

Lessons learned: There are several lessons to be learned from this case. First, focus on the program of study and not on the profession that the student is going into. Second, have an internal grievance procedure. Make sure that procedure is staffed by appropriate objective people and that all relevant evidence is heard throughout that process. Third, be careful about ignoring request for accommodations that come through appropriate channels from disability services or other personnel with respect to a particular student. With respect to that process, make sure it is interactive and that any accommodations resulting from that interactive process are enforced throughout the school system. Fourth, if a student needs help, work to get that student help with qualified personnel and monitor accordingly. Fifth, if an agreement cannot be reached through the interactive process and accommodations are denied, make sure those accommodations that are denied would fundamentally alter the nature of the program or the activity. Finally, make sure that any dismissal from the program can be backed up with a showing that the individual student cannot meet the essential eligibility requirements of the program with or without reasonable accommodations.

4 Responses to Lessons learned

Pursuant to Tennessee v. Lane case US Congress has abrogated a “state’s immunity” and a civil rights litigant can sue a state, its subdivisions, and its state’s educational institutions. Good luck in making a justice worker’s balance.

This is true. However, cases are all over the place with respect to whether States waive their sovereign immunity when it comes to places of education. I have seen cases go both ways.

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