PALMER COLLEGE OF CHIROPRACTIC, Appellee, vs. DAVENPORT CIVIL RIGHTS COMMISSION and AARON CANNON, Appellants.
No. 12–0924
IN THE SUPREME COURT OF IOWA
June 27, 2014
Amended September 23, 2014
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.
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.
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
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
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
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
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
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
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
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.
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
III. Discussion.
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
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.”
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.”
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
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.
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
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
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
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
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.,
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
Perhaps just as importantly for purposes of our analysis here, the Supreme Court in Ewing explained it was granting deference there only
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
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
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.,
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
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
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.
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
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
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
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
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
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.
Palmer Coll. v. Davenport CRC
#12–0924
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.
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
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. of Regents,
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.
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
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
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
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. 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
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
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
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
Mansfield, J., joins this dissent.