Wednesday, January 16, 2013

Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:
In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.
The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):
In Title III of the ADA and ยง 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.
This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

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