Lead Opinion
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 pro
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 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 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.
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 re
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 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 ex
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 hаd 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 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.
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 antidis-crimination 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 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.
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 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 antidis-crimination 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.
II. Scope and Standards of Review.
Our general assembly has directed that final decisions of municipal civil rights commissions shall be renewable 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,
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 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.,
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 “affirmative animus,” but also any discrimination based on thoughtlessness, apathy, or stereotype.
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(0(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 obligations, and the terms and standards may often be used interchangeably. See, e.g., Wong v. Regents of Univ. of Cal.,
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.
Further, the Supreme Court has noted, reasonable modifications in the form of “[auxiliary 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,
2. The general сontours of the fundar mental 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,
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,
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,
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,
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,
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,
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 ‘disguisfing] truly discriminatory requirements’ as academic decisions.” Wong,
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,
Perhaps just as importantly for purposes of our analysis here, the Supreme Court in Ewing explained it was granting deference there only after noting “the faculty’s decision was made conscientiously and with careful deliberation, based on аn evaluation of the entirety of Ewing’s academic career.” Ewing,
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.
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 case-law. See, e.g., Wong,
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.”); Roth-stein,
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 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,
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 inquiries and are typically resolved as questions of fact. See, e.g., Haschmann v. Time Warner Entm’t Co.,
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,
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,
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,
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 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.,
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
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 radio-graphic image interpretation — regardless 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 аnd 2010 and noting schools have provided accommodations ranging from “[an] assistant for observation” to “[an] assistant for physical examination]”). 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,
We conclude substantial evidence supports each of the commission’s findings.
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.
Notes
. The 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.
. The 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.”
. The 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
. In 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,
. Palmer 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,
. As 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(f)(3).
. We 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 Hempstеad,
.Palmer 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
. We think it important to emphasize here Palmer’s apparent concession that provision of Cannon’s requested accommodations would not fundamentally alter its 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,
. Despite 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 Undif
Dissenting Opinion
(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 radio-graphs, 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 accommoda
What is next? Arе 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.
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.,
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 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
[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,
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.
*349 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 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,
We should defer to Palmer’s conclusion that accommodating Cannon would fundamentally alter its chiropractic program. In North v. State, we recognized “ ‘[c]on-siderations of profound importance counsel restrained judicial review of the substance of academic decisions.’”
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.
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.”
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 thаt it has met its duty of reasonable accommodation will be a ‘purely legal one’ ” (quoting Mitchell v. Forsyth,
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),
In order to accommodate Cannon, Palmer would have had to lower its academic standards — something the law does not require. See Wong,
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.
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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 radiology curriculum. Palmer
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.,
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. 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.,
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,
MANSFIELD, J., joins this dissent.