COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Albert1 and Boston Public Schools
BSEA # 06-6508
RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT
A. INTRODUCTION
Student has Crohn’s disease and, as a secondary disability, depression. Student’s disabilities caused him to be unable to complete successfully his 9 th grade, initially during the 2004-2005 school year and again during the 2005-2006 school year. Student now seeks to re-enroll (for the third time) in the 9 th grade at Boston Latin School (Boston Latin) for the 2006-2007 school year.
The issue in dispute is whether Section 504 of the Rehabilitation Act requires that Student be exempt from a Boston Latin policy that precludes any student from being enrolled after failing the same grade twice.
Parents and Student take the position that a reasonable accommodation under Section 504 requires an exception to the Boston Latin policy. Boston Public Schools (Boston) takes the position that to allow Student to be exempt from the policy would result in an undue burden and a fundamental alteration of the Boston Latin program, and therefore need not be provided.
This ruling is issued pursuant to Section 504 of the Rehabilitation Act (29 USC 794), the state Administrative Procedure Act (MGL c. 30A), the regulations promulgated under these statutes, and the Massachusetts special education regulations granting jurisdiction to a Bureau of Special Education Appeals (BSEA) hearing officer to hear Section 504 disputes (603 CMR 28.08).
B. PROCEDURAL HISTORY
On June 20, 2006, Parents and Student, through their attorney, filed with the BSEA a due process complaint requesting a hearing. On July 3, 2006, Boston filed its response. On July 19, 2006, Parents and Student, through their attorney, filed with the BSEA a Motion for Partial Summary Judgment ( Motion ) and Memorandum in support of the Motion . This Motion is the subject of the instant ruling.
On July 20, 2006, the parties met with the BSEA Hearing Officer for a pre-hearing conference during which the issues in dispute, as well as the Motion , were informally discussed. By agreement of the parties, Parents’/Student’s attorney filed a supplement to their Memorandum on July 26, 2006. Boston, through their attorneys, filed its response on August 1, 2006. A Motion Hearing was held on August 8, 2006 at the BSEA offices in Malden, MA
Parents and Student submitted documents marked as exhibits A through N. Boston submitted documents marked as exhibits A through E.2
C. FACTS
On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party .3
Boston Latin School
1. The Boston Latin School (Boston Latin) is a public school that is part of the Boston Public Schools (Boston). Boston Latin is the oldest public school in the nation. (Boston’s exhibit A, which is affidavit of Cornelia Kelley, Headmaster of Boston Latin, par. 3; Boston’s exhibit B, which is Boston Latin Handbook, page 2; Parents’ exhibit D, which is a statement of facts published by Boston.)
2. An education from Boston Latin “carries prestige and significant reputation in the academic and professional community.” Boston Latin is regarded as an esteemed educational institution “because it requires students to satisfactorily complete extremely demanding curriculum.” (Boston Latin Headmaster’s affidavit, par. 3; Boston Latin Handbook, page 2.)
3. Boston Latin’s Mission Statement provides, in part, as follows:
Boston Latin School seeks to ground its students in a contemporary classical education as preparation for successful college studies, responsible and engaged citizenship, and a rewarding life. (Boston Latin Handbook, page 2.)
4. Boston Latin’s Handbook further provides, in part, as follows:
The curriculum of the Latin School is diverse and demanding. Besides classroom work, students are expected to do about three hours of home study every day.
In addition to academic subjects, a large number of extracurricular activities, clubs, and inter-scholastic programs is available to students. Support services are also available for those in need of assistance. (Boston Latin Handbook, page 2.)
5. Students are admitted into Boston Latin upon achievement of certain exam scores. (Boston Latin Handbook.)
Chronology of events
6. Student is sixteen years old (date of birth: 1/4/90). He is enrolled in the Boston Public Schools. (Parents’ exhibit A, which is Student’s affidavit.)
7. After earning placement through the examination process, Student began attending Boston Latin as a 7 th grader in the 2002-2003 school year. During 7 th grade, Student received grades of six As and six Bs. (Student’s affidavit, pars. 2, 11; Parents’ exhibit B, which is Mother’s affidavit, par. 5; Parents’ exhibit C, which is Student’s grades for 7 th and 8 th grades.)
8. In September 2003, which was the beginning of his 8 th grade, Student was diagnosed with Crohn’s disease of the esophagus, stomach, and small and large intestines. (Student’s affidavit, par. 6; Mother’s affidavit, par. 3; Parents’ exhibits E, G, I, which are discussed in this Facts section of the ruling at pars. 30-32, below.)
9. Crohn’s disease is a chronic inflammatory disease of the intestine and colon. The disease is cyclical and unpredictable in nature. Periods of intense stress and pressure can exacerbate symptoms, causing flare-ups during these times. (Student’s affidavit, par. 7; Mother’s affidavit, par. 4; Parents’ exhibits E, G, I.)
10. Since his diagnosis with Crohn’s disease, Student has been treated with surgery and with multiple immunosuppressive medications. He has had debilitating abdominal pains and diarrhea during the initial stages of the disease, and he continues to have unpredictable and intermittent flares that cause abdominal pain and diarrhea. Student’s symptoms from Crohn’s disease have significantly limited him with respect to school attendance, emotional health, eating, and elimination of bodily waste. (Student’s affidavit, pars. 6, 7; Mother’s affidavit, par. 3; Parents’ exhibits E, I.)
11. Secondary to this disease, Student developed depression and anxiety. Currently, Student is taking the antidepressant medication Zoloft and receives regular psychological counseling. (Student’s affidavit, pars. 6; Mother’s affidavit, par. 3; Parents’ exhibits E, I.)
12. During Student’s 8 th grade (2003-2004 school year), the symptoms of Crohn’s disease began to affect his ability to attend and concentrate. For 8 th grade, he received grades of one A-, five Bs, two Cs and a D+. (Student’s affidavit, pars. 6, 7; Mother’s affidavit, par. 5; Parents’ exhibits C, E, G, I.)
13. In the fall of 2004, Student began his 9 th grade year at Boston Latin. On the second day of school, Student began to have difficulties. A combination of heat and stress caused a significant flare-up of the symptoms of Crohn’s disease, resulting in an acceleration of his infliximab (Remicade) treatment. Student’s gastrointestinal system remained inflamed and sore for six weeks. Student’s symptoms of Crohn’s disease, in combination with his absence from school, resulted in depression. On November 17, 2004, Student began psychological counseling to address his anxiety and depression, which inhibited his ability to attend school. Student did not return to school for the remainder of calendar year 2004. (Student’s affidavit, par. 8; Mother’s affidavit, par. 6; Parents’ exhibit H.)
14. Student returned to Boston Latin on January 4, 2005, the first day following the holiday break. At this time, Student was receiving no supports or accommodations for his disability, and he was assigned work by his teachers premised on his having been in school during the fall term. Student continued to have symptoms of Crohn’s disease and was able to attend school only sporadically during the month of January. Student became discouraged and was unable to continue school. He did not return to Boston Latin for the remainder of the 2004-2005 school year. (Student’s affidavit, par. 9; Mother’s affidavit, par. 10.)
15. On several occasions during the 2004-2005 school year, Boston Latin notifications were sent to Parents to notify them that Student was in danger of failing due to his absences. In February 2005, Dr. Fajnzylber, on Student’s behalf, asked Boston Latin to make modifications for Student due to his Crohn’s disease. By the end of the school year, Student had been absent for most of the school year and did not pass the 9 th grade curriculum. (Mother’s affidavit, par. 7; Boston Latin Headmaster’s affidavit, par. 6; Parents’ exhibit F, discussed below in this section in par. 29.)
16. In September 2005, apparently out of frustration with Boston Latin’s not having made accommodation for Student’s Crohn’s disease the previous school year, Parents withdrew Student from Boston Latin and the Boston Public School system and enrolled Student in the Boston College High School. Student was never terminated from Boston Latin. (Mother’s affidavit, par. 13; Boston Latin Headmaster’s affidavit, par. 7.)
17. Student attended Boston College High School for less than three weeks. The stress of the new environment caused additional physical and emotional symptoms. Student’s depression deepened, he was unable to return to school, and he was hospitalized at the Boston Center from October 26, 2005 to November 2, 2005. (Mother’s affidavit, pars. 13, 14.)
18. In January 2006, Boston began providing Student with home tutoring for five hours (or less) each week. In February, Mother spoke with the Boston Latin Head Master (Cornelia Kelley) for the purpose of asking for help from Boston Latin so that Student would be able to continue to attend Boston Latin. Mother was advised that no help was available. (Mother’s affidavit, pars. 15, 16.)
19. Student’s academic report card from Boston College High School for the 2005-2006 school year reflects an “I” (presumably, indicating incomplete) for each course for each of the three quarters, except for “Intro to music” for which no grade is given. The report further indicates that Student was absent 96 days over the course of three quarters. (Parents’ exhibit N; Boston’s exhibit C – both exhibits are the Boston College High School Academic Report Card for the 2005-2006 school year.)
20. In their affidavits, Student and Mother concluded that as a result of the symptoms of Crohn’s disease, Student was not able to attend school on a regular basis for the 2004-2005 and 2005-2006 school years. (Student’s affidavit, pars. 2, 3; Mother’s affidavit, par. 1.)
21. On June 7, 2006, Boston convened a Section 504 Evaluation Team meeting that included Boston staff (a psychologist, a tutor, a special educator, and a citywide educational team facilitator), Student, his Parents, and Student’s psychologist. The Team reviewed extensive medical reports, as well as psychological, special education and regular education reports, and then concluded that Student was eligible to receive needed services and accommodations pursuant to Section 504. (Parents’ exhibit L, which includes Boston’s notice of eligibility under Section 504; Parents’ exhibit M, which is Boston’s Section 504 Plan for Student.)
22. As a result of the June 7, 2006 Section 504 Evaluation Team meeting, Boston developed a Section 504 Plan (Plan). The Plan describes Student’s disability of Crohn’s disease and secondary depression as a result of Crohn’s disease, states that Student’s Crohn’s disease is impacting his learning and accessing the curriculum, and notes that he has had multiple school absences. (Parents’ exhibit M.)
23. The summary section of the Plan noted Student’s Crohn’s disease, depression related to this disease, and functional abdominal pain. The summary then explained that “[Student] is a very intelligent young man who has missed extensive schooling due to his disease.” Then, the Plan listed seven accommodations to be provided to Student’s learning environment, several accommodations regarding assignments and test-taking, and other special considerations relevant to Student’s academic program. These accommodations include the following:
· note the importance of communication between parents, school staff, and school nurse regarding Student’s medical condition,
· require that Student’s teachers be informed of his medical condition,
· provide for certain adjustments when Student fatigues or is required to leave a classroom for medical reasons, provide for opportunities to make up work as a result of any absences,
· note the importance of teachers’ eliminating stress for Student when possible, and
· provide for four hours per week of tutoring when there have been excessive absences.
Student’s Section 504 Plan applies to whatever public school Student attends for the 2006-2007 school year. (Parents’ exhibit M.)
24. Student now desires to re-enroll for the 9 th grade at Boston Latin for the 2006-2007 school year, and Parents have made this request to Boston. (Student’s affidavit, par. 11; Mother’s affidavit, par. 19; Boston Latin Headmaster’s affidavit, par. 8.)
25. The Boston Latin Student Handbook provides, in relevant part, as follows:
Students who are repeating an entire grade and fail the grade for a second time cannot be promoted; for such students transfer is required. (Boston’s exhibit D, which is the Boston Latin Handbook, page 13, par. 5.)
26. Boston Latin applies all of its policies in its Student Handbook to all students who are enrolled in or apply to be enrolled in Boston Latin. (Boston Latin Headmaster’s affidavit, par. 4)
27. The Boston Latin Headmaster (Ms. Kelley) determined the above-quoted policy to apply because Student did not pass 9 th grade on two attempts. (Boston Latin Headmaster’s affidavit, pars. 8, 9.)
28. Upon Student’s request that the above policy be waived as an accommodation to his medical condition, the Headmaster “consulted with relevant school administrative personnel.” After the Headmaster “researched and consulted with the administrative personnel, it was determined that a waiver of this policy would compromise the academic standards and integrity of a high school diploma from the Boston Latin School.” Boston Latin concluded that it would not grant Student a waiver of this policy, and Student has been precluded from returning to Boston Latin. (Boston Latin Headmaster’s affidavit, par. 10; Mother’s affidavit, par. 18.)
Statements from Student’s clinicians
29. In a letter dated February 5, 2005 to Ms. Sylvester at Boston Latin, Marcel Fajnzylber, Ed.D., stated that in a previous conversation with Ms. Sylvester on January 15, 2005, she had requested modifications for Student, that due to Student’s Crohn’s disease, he could not return to school on a regular schedule, and that Student would need “special accommodations to insure his return to school would be successful.” (Parents’ exhibit F.)
30. In a statement dated March 30, 2006, Student’s gastroenterologist (Douglas Fishman, MD) and his clinical social worker (Janis Arnold, LICSW) wrote that although Crohn’s disease is “cyclical and unpredictable in nature, it is our opinion that we have determined a fairly consistent medical regimen which has proved manageable for [Student], though he did report increased symptom activity at a recent clinic visit.” (Parents’ exhibit G.)
31. Also, in their statement dated March 30, 2006, Student’s gastroenterologist (Douglas Fishman, MD) and his clinical social worker (Janis Arnold, LICSW) wrote:
We are aware that [Student] is currently pursuing more intensive therapeutic services to help him manage the psychological impact of his ongoing medical demands, and that the combination of medical and mental health demands has interfered with his ability to maintain his school responsibilities. (Parents’ exhibit G.)
32. In a statement dated May 31, 2006, Student’s gastroenterologist (Douglas Fishman, MD) wrote:
During the initial course of disease [Student] had diarrhea and abdominal pain which was debilitating, however, his disease has been well managed over the course of the last year. He does have unpredictable and intermittent flares which cause some symptoms, but this has not been his primary issue over the last several months. His most recent complication was December 2005, and he was treated with antibiotics and antispasmodics. We are aware that the onset and adjustment to living with a chronic illness has led to psychological barriers for [Student], which immobilized his participation in his full academic curriculum. (Parents’ exhibit I.)
Psychological evaluation of Student
33. On May 24, 2006, Edward Donnelly, a psychologist employed by Boston, conducted a psychological evaluation of Student.4 For purposes of this evaluation, the Boston psychologist administered the following tests: Wechsler Intelligence Scale for Children (Fourth Edition), Wide Range Achievement Test (Revision 3), and Bender Gestalt Visual Motor Test. In addition, the psychologist consulted with Mother, performed a diagnostic interview of Student, and reviewed available records. (Parents’ exhibit J, which is the psychological evaluation.)
34. The evaluation report stated that results of the Wechsler Intelligence Scale for Children (Fourth Edition) indicate that Student was functioning within the Bright Classification of intelligence. (Parents’ exhibit J.)
35. In the summary and recommendations section, Boston’s psychological evaluation states:
This student had been attending the Boston Latin School from grade 7 to grade 9. However, as he approached grade 9 health issues surfaced that resulted in inconsistent school attendance as well as a referral for home tutoring. The student attended the Boston College High School for a one week period earlier this year but withdrew because of continued health issues. Presently he is motivated to return to the Boston Latin School in September. (Parents’ exhibit J.)
36. The evaluation concluded:
Based on interviewing [and] psychological testing[,] the following recommendations are presented:
It is recommended that the student be allowed to return to the Boston Latin School. Some accommodations would seem to be in order to address the health issues and resulting features. (Parents’ exhibit J.)
D. DISCUSSION
This dispute presents the question of whether Section 504 of the Rehabilitation Act of 1973 (Section 504) requires an exemption to a Boston Latin policy that would otherwise preclude Student from enrolling, for the third time, in the 9 th grade. I address Parents’/Student’s current and prospective claims (and do not address claims for past discrimination) under Section 504 pursuant to a summary judgment standard.5
I consider Section 504, as well as decisions and regulations under this statute. I also consider decisions interpreting the Americans with Disabilities Act (ADA) since the First Circuit has concluded that “ case law construing the ADA generally pertains equally to claims under the Rehabilitation Act.”6
Summary judgment standard; disputed facts
The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.7
Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules.
The Federal Rules of Civil Procedure, Rule 56(c), provide that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.”
When, as here, the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is a trial-worthy issue.8 The First Circuit has further explained as follows:
This burden is discharged only if the cited disagreement relates to a genuine issue of material fact. In this context, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party and “material” means that the fact is one that might affect the outcome of the suit under the governing law. This requirement has sharp teeth: the [non-moving party] must present definite, competent evidence to rebut the motion. Such evidence cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial. As the [United States Supreme] Court has cautioned, evidence that is merely colorable or is not significantly probative cannot deter summary judgment.9
The Headmaster’s affidavit, the Boston Latin Student Handbook and the Academic Report Card from Boston College High School are the only factual evidence put forth by Boston. The only facts alleged within these documents that are in dispute are the italicized language within the following paragraph from the Boston Latin Headmaster’s affidavit:
Upon [Student’s] request that this policy be waived as an accommodation to his medical condition, I consulted with relevant school administrative personnel. After I researched and consulted with the administrative personnel, it was determined that a waiver of this policy would compromise the academic standards and integrity of a high school diploma from the Boston Latin School . (Boston Latin Headmaster’s affidavit, par. 10.)
I do not find this to present a “genuine issue of material fact” for the following reasons. First, read literally, the quoted language is not disputed by Parents and Student because the italicized language is prefaced by the phrase “it was determined” – that is, the sentence simply reports what was determined by Boston Latin. Parents and Student do not dispute that this determination was made by Boston Latin.
Second, the above-quoted italicized language reflects a conclusory opinion that closely resembles the ultimate legal question in this dispute – that is, whether the accommodation would substantially or fundamentally alter the Boston Latin program. Were I to fully credit this opinion, Boston would prevail without further factual analysis.
Clearly, Boston Latin is entitled to have this opinion. However, for the opinion to have probative value, there must be a recitation of facts that provide sufficient basis or support, and there must be identification of the person or persons who hold the opinion (the quoted language tells us only that “it was determined”). Without this additional information, the factfinder has no ability to assess the probative value of the Headmaster’s conclusory opinion. In short, Boston has provided “evidence that is . . . not significantly probative [and which therefore] cannot deter summary judgment.”10
For these reasons, I find that although there are facts in dispute, the disputed facts are not “material”. I therefore may consider whether Parents/Student are entitled to prevail, as a matter of law, under Section 504 .
Section 504
Section 504 provides, in relevant part, as follows:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .11
In order to establish a claim under Section 504, Parents must demonstrate the following:
(1) Boston receives Federal financial assistance, (2) Student has a “disability” within the meaning of the statute, (3) he is a qualified individual, either with or without a reasonable accommodation, and (4) Student is subject to unlawful discrimination.12
Boston does not dispute that it (and Boston Latin) receive Federal financial assistance and therefore are subject to Section 504. Accordingly, this prong of the Section 504 standard is satisfied.
Having found Student to be eligible for protection under Section 504 on June 7, 2006, Boston has determined Student to have a disability within the meaning of the statute. There is no dispute with respect to this issue.
I next consider whether Student is “qualified” under Section 504. Student is eligible to return to Boston Latin for the 9 th grade in the fall of 2006 but for the Boston Latin policy stating that students “who are repeating an entire grade and fail the grade for a second time” may not continue at Boston Latin. It is this policy from which Parents seek an exemption as an accommodation under Section 504.
Courts have made it clear that a person with a disability is entitled to protection under Section 504 if he or she is able to meet the essential requirements of the program or position with or without reasonable accommodation.13 Student satisfies this prong of the Section 504 standard so long as the accommodation that Student seeks is determined to be appropriate — an issue that will be addressed in detail below.
Boston disagrees, arguing that even with the requested accommodation, Student would not be qualified. Boston takes the position that Student’s academic history over the past two years, including his inability to attend school on a consistent basis, demonstrates that more than the requested accommodation is necessary in order for Student to be considered qualified. I do not find support for this argument in the record. Student passed the entrance exam for Boston Latin, he then passed his courses for 7 th and 8 th grades and was promoted to the 9 th grade, he was never been terminated from Boston Latin, a Boston psychologist recently recommended (after testing Student) that he return to Boston Latin, and there is nothing in the record indicating any additional Boston Latin requirement that must be met. (Facts section of this ruling, pars. 7, 12, 16, 36.) I also note that the only document in the record from which one might infer or otherwise conclude that Student is not qualified to return to Boston Latin is the Boston Latin Headmaster’s affidavit, and the affidavit’s only basis for determining that Student is not qualified to be re-enrolled is the Boston Latin policy for which an exception is sought.14
The remaining question, and the central issue in this dispute, is whether Boston is unlawfully discriminating against Student by refusing to modify its policy that students “who are repeating an entire grade and fail the grade for a second time” may not continue at Boston Latin.
The United States Supreme Court’s first decision interpreting Section 504, Southeastern Community College v. Davis , addressed an educational institution’s obligations under this statute. The issue was whether Section 504 required a college to make substantial changes to its nursing program for a student with a hearing loss.15
The Supreme Court found that Section 504 “does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate.”16 Although the student in Davis argued that Section 504 and its regulations required the college to provide accommodations necessary for her to participate (e.g., individual supervision and an exemption from clinical coursework), the Court concluded that “[s]uch a fundamental alteration in the nature of a program is far more than the ‘modification’ the regulation requires.”17
In a subsequent decision, Alexander v. Choate , the Supreme Court further elucidated these principles:
The balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made.18
Applying these principles to the instant dispute, Section 504 requires Boston Latin to provide Student with meaningful access to its school. The Boston Latin policy at issue in the instant dispute reflects a facially neutral rule that effectively denies Student access on account of his disability. In order for Student to gain access, he requires an accommodation or modification of the Boston Latin policy . What the Court noted in Alexander is equally applicable in the instant dispute – that is, the “ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of the handicapped.”19
Boston takes the position that since the Boston Latin policy is facially neutral, reflecting “the application of neutral criteria applied to disabled and nondisabled students alike,”20 there is no Section 504 violation. However, t he Supreme Court has explained on several occasions that the effect of any facially neutral policy must be considered.21 In Alexander , the Court considered a facially neutral rule, explaining that reasonable accommodation may be required if the rule would otherwise exclude a qualified disabled person.22 On several occasions, the First Circuit has required that an accommodation or modification be made to a facially-neutral policy or rule in order to allow a person with a disability to have meaningful access to the program, benefit or opportunity.23
When considering the question of whether a modification or accommodation is required under Section 504, the person with the disability (in this case, Student) has the initial burden of demonstrating that that a proposed accommodation is reasonable. To do so, he must show that the proposed modification would allow him to meet the essential requirements of the program and that, “at least on the face of things,” the accommodation would be “feasible” for Boston Latin to implement.24
This inquiry requires consideration of the “difficulty or expense imposed on the one doing the accommodating.”25 The accommodation must be shown to be “facially practicable”.26
Parents have met this burden. As discussed above in the text accompanying footnote 14, Student is qualified to return to Boston Latin but for the policy from which Parents seek an exception. In addition, it seems self-evident from the facts of this dispute that an exception to the policy is “feasible”, at least on the face of things, since all that is required is for the Boston Latin Headmaster to make a decision that the policy should not apply in this particular case and then have Student re-enrolled.
This was confirmed during the Motion Hearing when Boston made clear that its only burden in making the exemption sought by Parents is Boston’s concern regarding lowering academic standards or undercutting the integrity of a degree from Boston Latin. These concerns are “ not evident on the face of things, but rather are better known to the [educational program].”27 Accordingly, they are more properly addressed as part of the undue burden and fundamental/substantial alteration standard (discussed immediately below) which Boston has the burden of addressing.
Since Parents have met their burden of establishing the reasonableness of the requested modification, Boston must show that the modification – that is, an exemption to its policy –
would result in an undue hardship, or a fundamental or substantial alteration of its educational program.28 I first consider the undue burden standard.
Under Section 504, an accommodation is not reasonable (and therefore not required) if it imposes “undue financial and administrative burdens” on a recipient.29 Boston has argued that the exemption to the Boston Latin policy would impose an undue burden. However, no facts have been proffered from which one might infer that any financial or administrative burden would occur in the event that there were an exemption in the policy so that Student may re-enroll in the 9 th grade for the 2006-2007 school year. In addition, during the Motion Hearing, Boston made clear that it did not intend to argue that there was any burden other than a fundamental or substantial alteration in its educational program. For these reasons, I find that an exemption to the Boston Latin policy would not result in an undue burden.
I now turn to the principal point in contention – that is, whether the proposed policy exemption would result in a fundamental or substantial alteration in the Boston Latin program. The Supreme Court in Alexander v. Choate explained as follows:
Davis thus struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of federal grantees in preserving the integrity of their programs: while a grantee need not be required to make “fundamental” or “substantial” modifications to accommodate the handicapped, it may be required to make “reasonable” ones.30
The First Circuit has made clear that a fundamental or substantial, and therefore impermissible, alteration in an academic program would occur, for example, if a proposed modification would lower academic standards.31 Boston takes the position that making an exception to its Boston Latin policy is not required under this analysis since the policy exception would “compromise the academic standards and integrity of a high school diploma from the Boston Latin School.” Affidavit of Boston Latin Headmaster, par. 10.
When determining whether or not an exemption to a policy would result in a substantial or fundamental alteration of the program, several courts have explained the importance of considering the purposes of that policy.
In PGA Tour v. Martin , the Supreme Court considered whether, under the ADA, allowing a person with a disability (Martin) to use a golf cart, despite the walking requirement that applies to several golfing events, is a modification that would “fundamentally alter the nature” of those events.32
The PGA argued that the goal of its tournaments was to compare the performance of competitors, a task that is meaningful only if identical substantive rules apply to all competitors. Despite this argument, the Supreme Court held that the refusal to grant Martin’s request was discrimination prohibited by the ADA, finding that permitting him to ride in a cart would not fundamentally alter the nature of the golf tournaments.33
In its analysis of this issue, the Court noted the importance of considering the purposes of the rule from which an exemption is sought:
Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose , as well as the letter, of the rule before determining that no accommodation would be tolerable.34
Evaluating the needs of the disabled person (Martin) on an individual basis and considering the purpose of the walking rule and its relevance to golf tournaments, the Court found that allowing Martin to use a golf cart would not fundamentally alter the nature of the golf tournaments. The Court reasoned that a “modification that provides an exception to a peripheral tournament rule without impairing its purpose cannot be said to ‘fundamentally alter’ the tournament.”35
The First Circuit relied on this reasoning in deciding Dudley v. Hannaford Bros. Co. where the Court considered a retailer’s policy of never allowing a cashier to sell alcohol to a customer who appeared intoxicated. Plaintiff had suffered severe trauma in an automobile accident, and regularly exhibited characteristics often associated with intoxication. Pursuant to the retailer’s no-exceptions policy, plaintiff was not allowed to purchase alcoholic beverages because he appeared intoxicated. The question presented to the Court was whether the retailer should be required, under the ADA, to make an exception to this policy.36
The First Circuit considered the retailer’s argument that allowing an exception to the policy would fundamentally alter the nature of defendant’s business, and found that it would not. Utilizing an analysis similar to that in Martin and after considering the stated goals of the retailer’s policy, the First Circuit wrote:
Here, our inquiry must address whether [the retailer’s] unbending “refusal to reconsider” policy is sufficiently essential to its stated goals to justify its discriminatory effect. We conclude that the policy, as applied, is overinclusive, and that a more flexible policy can offer comparable protections while complying with both the letter and spirit of the ADA.37
Other courts have engaged in a similar analysis.38
The undisputed facts in the instant dispute are that the combination of Student’s Crohn’s disease and his secondary depression caused Student to be unable to attend school for significant portions of the 2004-2005 school year and virtually all of the 2005-2006 school year. (Facts section of this ruling, pars. 13, 14, 16, 17, 19, 20, 23, 29, 35.) As a result of Student’s inability to attend school, Student did not receive passing grades for the first semester of the 2004-2005 school year (Facts, par. 15), and was not able to attend school for more than several weeks during the 2005-2006 school year, receiving an “I” (or incomplete) for each course but one (for which course no grade was given) at Boston College High School for the 2005-2006 school year (Facts, par. 19). During these school years, Student had not been determined eligible under Section 504 and had not been offered accommodations (except for limited tutoring provided in the first part of 2005) until the June 7, 2006 Section 504 Evaluation Team meeting. (Facts, pars. 18, 21, 22.)
Over the past six months, Student’s Crohn’s disease has stabilized to a greater degree, and Student has been pursuing more intensive therapeutic services to manage the psychological impact of his medical condition. (Facts, pars. 31, 32.) In addition, Boston, for the first time on June 7, 2006, put in place a Section 504 plan that provides a variety of program modifications and services designed to allow Student to access the 9 th grade. (Facts, pars. 21, 22.)
On May 24, 2006, a psychologist employed by Boston conducted a psychological evaluation of Student that included psychological and educational testing, a diagnostic interview of Student, and a review of available records. The evaluation, which was done in preparation for the 504 Evaluation Team meeting, concluded with a recommendation that Student return to Boston Latin, with accommodations to address “his health issues and resulting features.” (Facts, pars. 33-36.)
From this factual record, making all reasonable inferences in Boston’s favor, I find that Student’s school difficulties during the 2004-2005 and 2005-2006 school years do not reflect negatively on his academic ability, but rather reflect a combination of two significant disabilities and a lack of sufficient accommodation in the school program. I further conclude that Student is qualified academically to return to the 9 th grade at Boston Latin. It is within this factual context that I consider the impact upon Boston Latin of allowing Student to re-enroll for a third time in 9 th grade.
I understand that from Boston’s perspective, the purpose of its policy is to protect the academic integrity of a program that “carries prestige and significant reputation in the academic and professional community.” This reputation is premised upon all students being required “to satisfactorily complete extremely demanding curriculum.” (Boston Latin Headmaster’s affidavit, par. 3; Boston Latin Handbook, page 2.)
The Boston policy at issue seeks to protect these values by precluding a student from continuing at Boston Latin if that student “fail[s] the grade for a second time and cannot be promoted”, and the Boston Latin Headmaster has concluded that to exempt Student from this policy would compromise academic standards and the integrity of a Boston Latin diploma. However, Boston has offered no factual basis in support of the Headmaster’s conclusion.39 (Boston Latin Handbook, page 13, par. 5; Boston Latin Headmaster’s affidavit, par. 10.)
The instant dispute is decidedly not a case of a student having demonstrated during two academic years that he has “failed” a grade in the sense that he has been unsuccessful in meeting the school’s academic standards and therefore could not be promoted. Instead, Student simply was not able to attend school virtually all of the last school year (2005-2006) and significant parts of the previous school year on account of his medical conditions. Particularly during this past academic year when Student attended the Boston College High School, it cannot be said that student “failed” academically since his only report card reflects grades of incompletes for his courses. (Facts, par. 19.)
The modification requested by Student is similar to the accommodation, occasionally sought in a variety of academic environments, of modifying the length of time that a student is allowed to complete an academic program. The Supreme Court in Alexander v. Choate referenced this as the kind of accommodation that may, within a particular context, be appropriate.40
Essentially, Student has withdrawn from school for the past one and one-half school years for medical reasons. Now that his medical condition has become more stable and a Section 504 plan has been established to accommodate those needs, he seeks to return to the school in which he was earlier enrolled. The essential difference between Student and other 9 th graders at Boston Latin is that Student would likely be one or two years older than the great majority of his peers. Parents are not seeking an exemption or relaxation of the rigorous standards or requirements that form the basis of Boston Latin’s academic integrity; they are asking only that their son not be penalized for being unable to attend school for reasons unrelated to his academic abilities.
I can find nothing within the requested accommodation that substantially alters the academic standards or integrity of Boston Latin, or that otherwise results in a “fundamental” or “substantial” change to the Boston Latin program .
As the First Circuit explained in a different context, the question is whether this “ unbending. . . policy is sufficiently essential to its stated goals to justify its discriminatory effect.”41 I am persuaded that the policy, as applied by Boston to the particular facts of this dispute, is overinclusive and that an exemption for Student will not compromise the academic purposes of the policy.
Boston’s position regarding deference to education decision-makers
Boston takes the position that the opinion of the Boston Latin Headmaster should be entitled to deference, thereby making the above analysis unnecessary. I disagree for the following reasons.
When deciding whether or not a modification would result in a fundamental or substantial alteration, a central requirement is that there be an individualized determination. Such a determination includes an inquiry into the particular exemption sought (which includes consideration of Student’s particular circumstances) and the actual impact of the exemption upon the program. Such an individualized determination is necessary in order to ensure that a program is not simply implementing a per se rule that effectively excludes a person with a disability who is qualified and who could be reasonably accommodated in the program.42
If this individualized inquiry is appropriately made, an education official’s opinion regarding an exception to a rule or policy may be entitled to deference under Section 504 ,43 although I also note that Section 504 imposes a responsibility on the factfinder to examine academic decisions closely to be certain that they do not mask even unintended discrimination against a person with a disability.44
The First Circuit has explained the principle of deference in Wynne v. Tufts University School of Medicine :
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.45
In Wynne , after considering the affidavit submitted by the university defendant’s Dean of the School of Medicine, which affidavit described why the testing methods (from which plaintiff sought modification) were essential to the academic program, the Court concluded:
Under Arline a court’s duty is first to find the basic facts, giving due deference to the school, and then to evaluate whether those facts add up to a professional, academic judgment that reasonable accommodation is simply not available. The above quoted affidavit, however, does not allow even the first step to be taken. There is no mention of any consideration of possible alternatives, nor reference to any discussion of the unique qualities of multiple choice examinations. There is no indication of who took part in the decision or when it was made. Were the simple conclusory averment of the head of an institution to suffice, there would be no way of ascertaining whether the institution had made a professional effort to evaluate possible ways of accommodating a handicapped student or had simply embraced what was most convenient for faculty and administration.46
In reviewing the Boston Latin Headmaster’s affidavit provided by Boston in the instant dispute, I find it to be less substantive and no more satisfactory than the affidavit considered by the First Circuit above.
The Headmaster’s affidavit describes only in a general way the inquiry utilized to reach the conclusion that the requested accommodation would result in a fundamental and impermissible alteration of the program – the affidavit states: “After I researched and consulted with the administrative personnel, it was determined that a waiver of this policy would compromise the academic standards and integrity of a high school diploma from the Boston Latin School.” Other than an earlier, general reference to Student’s “medical condition”, there is no indication that the Headmaster inquired about, understood or considered Student’s particular situation – for example, his academic qualifications, the reasons for his not completing the previous two years of 9 th grade, the fact that he failed only one semester during the previous two school years, his grades at Boston Latin prior to having Crohn’s disease, or the recent recommendation of Boston’s own psychologist (after testing Student) that he return to Boston Latin for the 2006-2007 school year.
Similarly, there is no indication that the Headmaster determined how an exemption in this particular case would actually impact academic standards or the integrity of a diploma at Boston Latin. Also, one cannot understand from the affidavit what process was used or when it occurred since the phrase “researched and consulted with the administrative personnel” is vague and provides no timeframe. The result is a lack of an individualized, factual analysis in support of the Headmaster’s conclusory opinion.47
For these reasons, I find that the Boston Latin Headmaster’s opinion regarding the educational impact of a policy exemption for Student is not based on an individualized inquiry, and therefore is not entitled to deference.
Conclusion
I find that Boston and Boston Latin receive Federal financial assistance and therefore are subject to Section 504; that Student is a qualified individual with a disability and therefore is protected under Section 504; that by reason of his disability, Student was not able to complete 9 th grade during the 2004-2005 and 2005-2006 school years, and for this reason is being precluded by Boston from re-enrolling as a 9 th grader at Boston Latin for the 2006-2007 school year; that Student’s requested accommodation is reasonable and would neither impose on Boston Latin an undue hardship nor result in a f undamental or substantial alteration of the Boston Latin program; and that by refusing to provide this accommodation, Boston is unlawfully discriminating against Student.
Accordingly, as a reasonable accommodation under Section 504 of the Rehabilitation Act, Boston shall exempt Student from the Boston Latin rule that “[s]tudents who are repeating an entire grade and fail the grade for a second time cannot be promoted; for such students transfer is required.” With this accommodation, Student is qualified to be enrolled in the 9 th grade for the 2006-2007 school year at the Boston Latin School.
E. ORDER
Parents’/Student’s Motion for Partial Summary Judgment is allowed .
By the Hearing Officer,
_________________
William Crane
Date: August 11, 2006
1
“Albert” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
The Hearing Officer notes, with appreciation, the careful and comprehensive legal work by Parents’/Student’s attorney (Tim Sindelar) and Boston’s attorney (Jill Murray who was assisted by Alissa Ocasio).
3
Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986); Parker v. Universidad de Puerto Rico, 225 F.3d 1, 3 (1st Cir. 2000).
4
Although the evaluation is unsigned, the parties orally stipulated during the Motion Hearing that the evaluation was performed by Edward Donnelly, a psychologist employed by Boston Public Schools.
5
This ruling does not address claims regarding alleged past discrimination, for which Parents and Student seek compensatory relief and damages in their due process complaint. Also, for purposes of this ruling, there is no disagreement regarding the appropriateness of Boston’s Section 504 Plan dated June 7, 2006 (Parents’ exhibit M).
6
Calero-Cerezo v. United States Department of Justice , 355 F.3d 6, 19 (1 st Cir. 2004). See also Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 151, n. 13 (1 st Cir. 1998) (Section 504 is interpreted “substantially identically to the ADA”).
7
801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
8
Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 st Cir. 1995).
9
Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1 st Cir. 1992) ( Wynne II ) (internal citations and quotations omitted). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) .
10
Wynne II, 976 F.2d at 794, quoting Anderson, 477 U.S. at 250.
11
29 U.S.C.A. § 794(a), as amended by Pub.L. No. 102-569, § 102(p)(32) (1992) (changing “handicap” to “disability”).
12
Calero-Cerezo v. United States Department of Justice , 355 F.3d 6 (1 st Cir. 2004); Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19 (1 st Cir. 1991) (en banc) ( Wynne I ).
13
As the First Circuit has explained, “ Alexander in effect modified the ‘all’ language of Davis and articulated the obligation to make reasonable accommodation part of the “otherwise qualified” inquiry.” [These two Supreme Court cases, Alexander and Davis , are discussed later in this ruling.] Wynne I, 932 F.2d at 27 . See also School Board of Nassau County, Fla. v. Arline , 480 US 273, 288 n.17 (1987); Calero-Cerezo v. United States Department of Justice , 355 F.3d 6 (1 st Cir. 2004); Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1 st Cir. 2000) ; Bercovitch v. Baldwin School, Inc. , 133 F.3d 141 (1 st Cir. 1998).
14
See also the discussion, below, in text following footnote 38, regarding Student’s academic qualifications for returning to Boston Latin.
15
Southeastern Community College v. Davis, 442 U.S. 397 (1979).
16
Id. at 405.
17
Id. at 410.
18
Alexander v. Choate, 469 U.S. 287, 300 (1985) (footnotes and citations omitted).
19
Alexander , 469 U.S. at 299 n. 19 .
20
Toledo v. Sanchez, — F.3d —-, 2006 WL 1846326 (1 st Cir. 2006).
21
PGA Tour, Inc. v. Martin , 532 U.S. 661 (2001) (ADA is intended to address “general rules and policies that are entirely fair with respect to the able-bodied but that may indiscriminately preclude access by qualified persons with disabilities”); Alexander , 469 U.S. at 296-96, 300 (Section 504 is to “rectify the harms resulting from action that discriminated by effect as well as by design”).
22
Alexander , 469 U.S. at 299 n. 19 .
23
E.g., Dudley v. Hannaford Bros. Co. , 333 F.3d 299, 308-309 (1 st Cir. 2003) (in order to accommodate plaintiff’s disability, retailer required to modify policy of never allowing a cashier to sell alcohol to a customer who appeared intoxicated ); Marie Marcano-Rivera v. Pueblo International , 232 F.3d 245, 257 (1 st Cir. 2000) (“not enough to treat plaintiff like other employees. . . . to do so was an unlawful failure to accommodate her disability in violation of the ADA”).
24
Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1 st Cir. 2001) . See also US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (citing to standard used in Reed ); Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir. 2003).
25
Reed , 244 F.3d at 259 .
26
Id .
27
Id . at 260.
28
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ; Dudley v. Hannaford Bros. Co., 333 F.3d 299 (1st Cir.2003); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) ; Garcia-Ayala v. Lederle Parenterals, Inc. , 212 F.3d 638 (1 st Cir. 2000) .
29
Davis, 442 U.S. at 412.
30
Alexander, 469 U.S. at 300, 105 S.Ct. at 720 (footnotes and citations omitted). See also Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 152-53 (1st Cir. 1998) (if the requested accommodation calls for “substantial modifications” of program, the accommodation is not required). For a useful discussion of the Davis and Alexander decisions, see Guckenberger v. Boston University , 974 F.Supp. 106 (D.Mass. 1997).
31
Wynne II, 976 F.2d at 794-95. See also Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (educational institution not required by Section 504 to lower its academic standards for a professional degree); Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 152-53 (1st Cir. 1998) (if the requested accommodation calls for “substantial modifications” of program, the accommodation is not required).
32
PGA Tour v. Martin, 532 U.S. 661 (2001), quoting from the ADA, 42 U.S.C. § 12182(b)(2)(A)(ii) .
33
Id. at 689 .
34
Id. at 691 (emphasis supplied) .
35
Id. at 690.
36
Dudley v. Hannaford Bros. Co. , 333 F.3d 299 (1st Cir.2003).
37
Dudley, 333 F.3d at 308-309 (1st Cir. 2003).
38
E.g., Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1084 (9th Cir.2004) (requiring a theater to keep seats available for companions of patrons using wheelchairs until ten minutes prior to showtime was not a fundamental alteration because the change “will have a negligible effect, if any, on the nature of the service provided by the theater: screening films”).
39
The conclusion is contained within the Boston Latin Headmaster’s affidavit, and is discussed in the text following footnote 9 and in the text following footnote 46.
40
Alexander, 105 S.Ct. at 720, n.21:
The regulations implementing § 504 are consistent with the view that reasonable adjustments in the nature of the benefit offered must at times be made to assure meaningful access. See, e.g. . . . 45 CFR § 84.44(a) (1984) (requiring certain modifications to the regular academic programs of secondary education institutions, such as changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted).
The above-cited regulations apply to secondary education recipients of Federal funds from the Department of Health and Human Services. See also comparable regulations applicable to post-secondary education recipients of Federal funds from the Department of Education. 34 C.F.R. § 104.44(a) (“Modifications may include changes in the length of time permitted for completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.”)
41
Dudley v. Hannaford Bros. Co. , 333 F.3d 299, 308-309 (1st Cir.2003).
42
US Airways, Inc. v. Barnett, 535 U.S. 391 (2002) ; PGA Tour v. Martin, 532 U.S. 661, 690 (2001); School Bd. of Nassau County v. Arline , 480 US 273, 287 (1987); Dudley v. Hannaford Bros. Co. , 333 F.3d 299, 310 (1 st Cir. 2003); Garcia-Ayala v. Lederle Parenterals, Inc. , 212 F.3d 638 (1 st Cir. 2000) ; Wynne II , 976 F.2d at 796.
43
Toledo v. Sanchez, — F.3d —, 2006 WL 1846326 (1 st Cir. 2006) ; Wynne v. Tufts University School of Medicine , 932 F.2d 19, 27-28 (1 st Cir. 1991). I assume, without deciding, that this principle, which has been articulated within the post-secondary education context, applies equally to public secondary schools, and that an administrative hearing officer with relevant, substantive expertise is to give this same deference to academic decision-making.
44
See Alexander v. Choate, 469 U.S. at 292-299 (discrimination may occur through thoughtlessness, indifference or apathetic attitudes in contrast to intent or design); Zukle v. Regents of University of California, 166 F.3d 1041 (9 th Cir. 1999) (the Court, which recognizes deference to educator’s decision, explained that “extending deference to educational institutions must not impede our obligation to enforce the ADA and the Rehabilitation Act. Thus, we must be careful not to allow academic decisions to disguise truly discriminatory requirements.”).
45
Wynne I , 932 F.2d at 27 (citations omitted).
46
Id . at 27-28.
47
Compare, for example, Boston Latin’s inquiry with the academic inquiry in Guckenberger v. Boston University, 8 F.Supp.2d 82, 87-89 (D.Mass. 1998), and with the process Boston utilized through its Section 504 Evaluation Team meeting and Section 504 Plan development for Student in June 2006. (Parents’ exhibits L, M.)