Ohio Civil Rights Commission v. Case Western Reserve University

76 Ohio St. 3d 168

• Court: Ohio Supreme Court
• Decided: July 31, 1996
• Docket: No. 95-387
• Status: Published

Opinions

Cook, J.

In this case, we are presented with the question of whether CWRU violated R.C. 4112.022(A) by denying a totally blind applicant admission to its medical school. We affirm the judgment of the court of appeals finding no violation.

I. PRIMA FACIE CASE OF HANDICAP DISCRIMINATION

OCRC charges that CWRU violated R.C. 4112.022, which prohibits discrimination against handicapped persons by educational institutions. Specifically, the statute provides:

“It shall be an unlawful discriminatory practice for any educational institution to discriminate against any individual on account of any handicap:

“(A) In admission or assignment to any academic program, course of study, internship, or class offered-by the institution[.]”

Similarly, Ohio Adm.Code 4112-5-09(B)(l) provides:

“Qualified handicapped persons shall not be denied admission or be subjected to discrimination in admission or recruitment on the basis of handicap at an educational institution covered by Chapter 4112. of the Revised Code.”

The parties agree and we hold that a prima facie case of discrimination in education under R.C. 4112.022(A) includes three elements: (1) the plaintiff is a handicapped person within the meaning of R.C. 4112.01(A)(13); (2) the plaintiff was otherwise qualified to participate in the program⁶; and (3) the plaintiff was excluded from the program on the basis of a handicap. See Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281, 25 OBR 331, 333, 496 N.E.2d 478, 480 (discrimination against handicapped in employment context). See, also, Southeastern Community College v. Davis (1979), 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (construing federal law prohibiting discrimination against handicapped in education); Doherty v. S. College of Optometry (C.A.6, 1988), 862 F.2d 570, 573, certiorari denied (1989), 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22. The parties also agree that the only element at issue in this case is whether Cheryl Fischer is “otherwise qualified” to participate in CWRU’s medical school program.

A. OTHERWISE QUALIFIED HANDICAPPED PERSON

The term “otherwise qualified handicapped person” in the educational discrimination context is not defined by statute or regulation. In the employment discrimination context, however, a “qualified handicapped person” means “a handicapped person who can safely and substantially perform the essential functions of the job in question, with or without reasonable accommodation.” Ohio Adm.Code 4112-5-02(K). In the past, we have looked to federal law to support a finding of discrimination under R.C. Chapter 4112. Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 575 N.E.2d 1164, certiorari denied (1992), 503 U.S. 906, 112 S.Ct. 1263, 117 L.Ed.2d 491 (federal case law interpreting Title VII of the Civil Rights Act of 1964 applied to R.C. Chapter 4112 employment discrimination claim). Accordingly, in the context of discrimination by educational institutions, we refer to Section 504 of the Rehabilitation Act of 1973, codified at Section 794, Title 29, U.S.Code, to assign meaning to the term “otherwise qualified” handicapped person.

Our inquiry into the meaning of “otherwise qualified” as used in Section 504 begins with the United States Supreme Court’s analysis in Southeastern Community College v. Davis, supra, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980. In that case, a deaf student alleged that a nursing school had discriminated against her after the school refused to admit her into its program. The Davis court defined an “otherwise qualified person” as “one who is able to meet all of a program’s requirements in spite of his handicap.” Id. at 406, 99 S.Ct. at 2367, 60 L.Ed.2d at 988. Applying this definition of “otherwise qualified,” the court held that the nursing school would not be forced to accept this deaf student because her inability to understand speech without reliance on lip reading would jeopardize patient safety during the clinical phase of the program. Id. at 407, 99 S.Ct. at 2367, 60 L.Ed.2d at 989. The court did not require the school to modify its curriculum through a waiver of the clinical program because such an accommodation required a “fundamental alteration” in the nursing school’s program. Id. at 410, 99 S.Ct. at 2369, 60 L.Ed.2d at 990.

Six years later, the Supreme Court revisited the issue in Alexander v. Choate (1985), 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661. In clarifying its prior decision, the Alexander court stated, “Davis * * * struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interest 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.” Alexander at 300, 105 S.Ct. at 720, 83 L.Ed.2d at 671. Thus, Alexander modified Davis to the extent that an “otherwise qualified” person is one capable of participating in the program if a “reasonable accommodation” is available for implementation by the institution.

Most recently, the Supreme Court discussed the “otherwise qualified” standard in School Bd. of Nassau Cty. v. Arline (1987), 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307. The court elaborated on the definition of an “otherwise qualified” individual:

“In the employment context, an otherwise qualified person is one who can perform ‘the essential functions’ of the job in question. When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped person to perform those functions. Accommodation is not reasonable if it either imposes ‘undue financial and administrative burdens’ on a grantee or requires ‘a fundamental alteration in the nature of [the] program.’ ” (Citations omitted.) Id. at 288, 107 S.Ct. at 1131, 94 L.Ed.2d at 321, fn. 17.

Similarly, Ohio Adm.Code 4112-5-09(D)(l) requires educational institutions to make necessary modifications to their academic requirements to prevent discrimination on the basis of handicap against a qualified handicapped applicant. Such modifications include “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.” However, academic requirements that the educational institution can demonstrate are “essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory * * and do not require modification.

Applying these principles to R.C. 4112.022(A), we define an “otherwise qualified” handicapped person as one who is able to safely and substantially perform an educational program’s essential requirements with reasonable accommodation. An accommodation is not reasonable where it requires fundamental alterations in the essential nature of the program or imposes an undue financial or administrative burden.

Because inquiry into reasonable accommodation is not separate from but rather is an aspect of “otherwise qualified,” we further hold that as part of its prima facie case, OCRC carries the initial burden of showing that Fischer could safely and substantially perform the essential requirements of the program with reasonable accommodation. See Ohio Adm.Code 4112-5-02(K); see, also, Wood v. Omaha School Dist. (C.A.8, 1993), 985 F.2d 437, 439; Carter v. Bennett (C.A.D.C. 1988), 840 F.2d 63, 65. Thereafter, the burden shifts to CWRU to demonstrate that Fischer is not “otherwise qualified,” i.e., the accommodations are not reasonable because they require fundamental alterations to the essential nature of the program or because they impose undue financial or administrative burdens. Id. CWRU may also rebut a prima facie case of discrimination by “establishing bona fide requirements or standards for admission or assignment to academic programs, courses, internships, or classes * * * which requirements or standards may include reasonable qualifications for demonstrating necessary skill, aptitude, physical capability, intelligence, and previous education.” R.C. 4112.022. Finally, the burden returns to OCRC and Fischer to rebut the evidence presented by CWRU. Doe v. New York Univ. (C.A.2, 1981), 666 F.2d 761, 776-777.

II. STANDARD OF REVIEW

Before we determine whether Fischer is otherwise qualified to participate in the medical school program at CWRU, we note the standards upon which we review this case. Pursuant to R.C. 4112.06(E), a trial court must affirm a finding of discrimination under R.C. Chapter 4112, if the finding is supported by reliable, probative and substantial evidence on the entire record. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128.

The role of the appellate court in reviewing commission orders is more limited — to determine whether the trial court abused its discretion in finding that there was reliable, probative and substantial evidence to support the commission’s order. See Cleveland Civ. Serv. Comm. v. Ohio Civ. Rights Comm. (1991), 57 Ohio St.3d 62, 65, 565 N.E.2d 579, 582. A trial court abuses its discretion where its decision is clearly erroneous, that is, the trial court misapplies the law to undisputed facts. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 10 O.O.3d 332, 383 N.E.2d 564.

We agree with the court of appeals and find that the trial court abused its discretion in finding that (1) the OCRC order was supported by reliable, probative and substantial evidence, and (2) Fischer was “otherwise qualified” for admission with reasonable accommodations.

A. RELIABLE, PROBATIVE & SUBSTANTIAL EVIDENCE

OCRC relied upon Dr. Hartman’s experience at Temple University and Fischer’s experience at CWRU while she was an undergraduate to demonstrate that she could complete the essential requirements of CWRU’s medical program with reasonable accommodations. The trial court agreed that Dr. Hartman’s testimony regarding Temple University’s accommodations fulfilled the requisite reliable, probative and substantial evidence to support OCRC’s order. See R.C. 4112.06(E). We disagree.

“Reliable” evidence is dependable or trustworthy; “probative” evidence tends to prove the issue in question and is relevant to the issue presented; and “substantial” evidence carries some weight or value. Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303, 1305. We find that Dr. Hartman’s experience at Temple University is neither probative nor substantial evidence to demonstrate that Fischer is currently able to safely and substantially perform the essential requirements of CWRU’s program with reasonable accommodation.

Dr. Hartman is not an expert in medical education. He attended Temple University twenty years ago, under entirely different circumstances than proposed today. Temple voluntarily accepted Dr. Hartman by increasing the class size by one. The faculty at Temple acted upon a commitment to do whatever necessary to assist Dr. Hartman, and not upon a concept of reasonable accommodation. Additionally, Dr. Hartman was accepted prior to the AAMC’s adoption of its technical standards for admission requiring each medical school student to have the ability to observe. Fischer, who provided the only testimony that she could complete the requirements of medical school with accommodations, admitted that she had no familiarity with what a medical student is required to do.

With Hartman and Fischer as its witnesses, OCRC failed to present any probative or substantial testimony that Fischer would be able to complete CWRU’s course requirements with reasonable accommodation. CWRU, however, presented testimony from several medical educators that a blind student could not perform the requirements of medical school. Consequently, the trial court abused its discretion in finding that OCRC’s cease and desist order was supported by probative or substantial evidence that Fischer could complete the medical program at CWRU with reasonable accommodation.

B. ACCOMMODATIONS WERE NOT REASONABLE

The court of appeals also found that the trial court abused its discretion by finding that Fischer was otherwise qualified for admission -with reasonable accommodations. Whether an accommodation is reasonable is a mixed question of law and fact. Carter, 840 F.2d at 64-65, citing Pullman-Standard v. Swint (1982), 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66.

OCRC suggests that certain accommodations such as raised line drawing boards, tutors and faculty assistance, occasional use of sighted students, and laboratory assistance would permit Fischer to realize the benefits of the first two years of the medical school program. OCRC also suggests modifications which would help her complete the required clerkships, such as the use of intermediaries to read X-rays and patient charts and to perform parts of a physical examination as well as the waiver of course requirements she could not perform such as starting an I.V. or drawing blood. OCRC argues that these accommodations are reasonable because those skills are not necessary for Fischer to pursue a practice in psychiatry, are not necessary for CWRU to maintain its accreditation as a medical school, and would not require a fundamental alteration in the nature of the program, since they are not essential to it. For the following reasons, we hold that the trial court’s finding that these accommodations were reasonable is clearly erroneous and an abuse of discretion.

First, a similar argument regarding intermediaries, supervision and course waiver was rejected by the United States Supreme Court in Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980. The court held that because the deaf nursing student would not receive “even a rough equivalent of the training a nursing program normally gives,” the school was not required to make such a “fundamental alteration” in its program. Id. at 410, 99 S.Ct. at 2369, 60 L.Ed.2d at 990. In the present case, all of the medical educators who testified at the hearing agreed that it would be impossible to modify the traditional methods of teaching in a manner that would impart the necessary skills and information for a blind student to complete the essential course requirements.

Second, CWRU’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. Bd. of Curators of Univ. of Missouri v. Horowitz (1978), 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55 L.Ed.2d 124, 136; Regents of Univ. of Michigan v. Ewing (1985), 474 U.S. 214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523, 533; Doe, supra, 666 F.2d at 775-776. 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 776; Wood v. President & Trustees of Spring Hill College (C.A.11, 1992), 978 F.2d 1214, 1222; Strathie v. Dept. of Transp. (C.A.3, 1983), 716 F.2d 227, 231. Furthermore, an educational institution is not required to accommodate a handicapped person by eliminating a course requirement which is reasonably necessary to the proper use of the degree conferred at the end of study. Doherty, 862 F.2d at 575.

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.

Both the AAMC technical standards and the medical educators who testified at the hearing rejected the use of an intermediary by a medical student. In these 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. Accordingly, a waiver of the medical school’s requirements such as starting an I.V. or reading an X-ray, or the use of an intermediary to perform these functions would fundamentally alter the nature of the program.

Finally, an administrative agency should accord due deference to the findings and recommendations of its referee, especially where there exist evidentiary conflicts. Brown v. Ohio Bur. of Emp. Serv. (1994), 70 Ohio St.3d 1, 2, 635 N.E.2d 1230, 1231. In this case, the referee concluded that Fischer could not complete courses in the basic sciences without placing an undue burden on the faculty, and could not complete the clerkships without substantial modification to the essential nature of the program. OCRC adopted the hearing officer’s findings of fact, but did not accept his recommendation. Rather, OCRC placed great weight upon Dr. Hartman’s testimony in arriving at a conclusion contrary to the hearing officer’s. As discussed supra, however, Dr. Hartman’s testimony was not probative of the issue and was insufficient to form the basis of a finding that the accommodations were reasonable.

III. DUTY TO INVESTIGATE

Finally, OCRC contends that CWRU’s failure to inquire into technological advances to assist the blind, its failure to contact Dr. Hartman or Temple University, and its failure to consult experts in educating the blind during its decision-making process violated an affirmative duty to investigate whether accommodations would enable Fischer to complete the medical school program.

OCRC relies on Mantolete v. Bolger (C.A.9, 1985), 767 F.2d 1416, in support of an affirmative duty to investigate. In Mantolete, the court considered the definition of a qualified handicapped person in the context of Section 501 of the Rehabilitation Act of 1973, codified at Section 791, Title 29, U.S.Code. Section 501 prohibits handicap discrimination by federal employers, requiring such employers to take affirmative action against discrimination. That section and its regulations imply that “a more active and extensive effort than ‘non-discrimination’ must be made to eliminate barriers to employment of the handicapped in federal agencies, departments, instrumentalities and contractors.” Id. at 1422. The Mantolete court imposed a duty upon federal employers “to gather sufficient information from the applicant and from qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job safely.” (Emphasis added.) Id. at 1423. As noted in the concurring opinion in Mantolete, however, “impos[ing] demanding information-gathering requirements upon federal employers” is justified by the express “affirmative action” language of Section 501 — language that does not appear in Section 504. Id. at 1425 (Rafeedie, J., concurring). Thus, OCRC’s reliance on Mantolete is misplaced.⁷

The United States Supreme Court recognized that in order to protect handicapped individuals from “deprivations based on prejudice, stereotypes, or unfounded fear,” a determination as to whether an individual is otherwise qualified should in “most cases” be made in the context of an “individualized inquiry into the relation between the requirements of the program and the abilities of the individual.” Arline, 480 U.S. at 287, 107 S.Ct. at 1130-1131, 94 L.Ed.2d at 320; Buck v. United States Dept. of Transp. (C.A.D.C.1995), 56 F.3d 1406, 1408.

Similarly, Ohio law does not support the imposition of a duty to investigate in all cases. Rather, R.C. 4112.022 contemplates that there will be situations in which a school could justifiably exclude all persons with a particular handicap from admission to a program. R.C. 4112.022 does not consider an act discriminatory where it is based upon a bona fide requirement or standard for admission. OCRC argues that vision is not a bona fide physical requirement for admission to medical school because CWRU failed to adopt the vision requirement prior to the rejection of Fischer’s application.

Again, we must disagree. Regardless of when CWRU adopted its own set of admissions standards and whether the AAMC standards are mandatory, the AAMC technical standards represent a comprehensive study supporting denial of admission to blind medical school applicants. Once CWRU confirmed the complete absence of an ability to observe, CWRU could deny Fischer’s application based upon a bona fide standard for admission to the medical school.⁸

IV. CONCLUSION

We agree with the court of appeals and find that the trial court abused its discretion in finding that the OCRC order was supported by reliable, probative and substantial evidence and that Fischer was otherwise qualified to participate in the medical school program. First, the trial court abused its discretion in finding that OCRC’s cease and desist order was supported by probative or substantial evidence because the testimony of Dr. Hartman was neither probative nor substantial on the issue of whether Fischer could complete CWRU’s requirements with reasonable accommodation. Second, the trial court’s findings that the modifications were reasonable and that Fischer was “otherwise qualified” to participate in CWRU’s medical school program were clearly erroneous and an abuse of discretion because the accommodations suggested by Fischer would (1) require fundamental alterations to the academic requirements essential to the program of instruction, and (2) impose an undue burden upon CWRU’s faculty. Finally, once CWRU confirmed her complete absence of an ability to observe, CWRU could deny Fischer’s application based upon a bona fide standard for admission to the medical school.

Judgment affirmed.

Moyer, C.J., and Powell, J., concur. F.E. Sweeney, J., concurs in the syllabus and judgment only. Douglas, Resnick and Pfeifer, JJ., dissent. Stephen W. Powell, J., of the Twelfth Appellate District, sitting for Wright, J.

6 . The term “otherwise qualified” appears in Section 504 of the Rehabilitation Act of 1973 (“Section 504”), codified at Section 794, Title 29, U.S.Code. Section 504, as amended, provides that “[n]o otherwise qualified individual with disability * * * shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Section 794(a), Title 29, U.S.Code.

7 . The dissent criticizes our discussion of Mantolete v. Bolger (C.A.9, 1985), 767 F.2d 1416, as being “selectively extracted” from the cases cited by OCRC. However, the other cases were cited only in a footnote to OCRC’s Reply Brief, and it was Fischer who characterized Mantolete as the “seminal case” on the issue of an affirmative duty to investigate. Furthermore, our discussion of Sections 501 and 504 is in response to the appellants’ view that such cases are persuasive authority for the proposition of an affirmative duty to investigate. This case, however, was brought only under R.C. Chapter 4112.

8 . The Office for Civil Rights, United States Department of Education, determined that CWRU’s 1991 denial of Fischer’s application to the medical school on the basis of the AAMC Technical Standards was consistent with Section 504 and dismissed Fischer’s complaint against CWRU.