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Elizabeth GUCKENBERGER, et al., Plaintiffs,

v.

BOSTON UNIVERSITY, et al., Defendants.
Civ. A. No. 96 11426 PBS.
United States District Court,

D. Massachusetts.


May 29, 1998.

MEMORANDUM AND ORDER ON THE ISSUE OF COURSE SUBSTITUTIONS


SARIS, District Judge.
INTRODUCTION
A class of students with learning disabilities brought this action against defendant Boston University ("BU") alleging that BU's policies toward them violated the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 12213, the Rehabilitation Act, 29 U.S.C. § 794, and state law. The Court issued its findings of fact, conclusions of law, and order of judgment on August 15, 1997, after a ten day bench trial. See Guckenberger v. Boston Univ., 974 F.Supp. 106 (D.Mass.1997) ( "Guckenberger II "). [FN1] In paragraph two of its order, the Court required BU to propose and to implement a "deliberative procedure" for considering whether course substitutions for the foreign language requirement of BU's College of Arts and Sciences (the "College") would "fundamentally alter the nature" of BU's undergraduate liberal arts degree. Id. at 154 55. BU, using the College's existing Dean's Advisory Committee to consider the issue, decided that course substitutions would constitute such a fundamental alteration. Plaintiffs challenge that determination. After hearing, the Court holds that BU has complied with the order.
FN1. Guckenberger I is the Court's memorandum and order on defendants' motion to dismiss and plaintiffs' motion for class certification. See 957 F.Supp. 306 (D.Mass.1997).
DISCUSSION

*****
A. The Test


[1] The First Circuit crafted the following test for evaluating the decision of an academic institution with respect to the availability of reasonable accommodations for the learning disabled:

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.

Wynne I, 932 F.2d at 26, quoted in Guckenberger II, 974 F.Supp. at 148. "[T]he point is not whether a [university] is 'right' or 'wrong' in making program related decisions. Such absolutes rarely apply in the context of subjective decisionmaking, particularly in a scholastic setting." Wynne II, 976 F.2d at 795.

B. Basic Facts Showing Reasoned Deliberation


*****
The Court concludes that BU has presented sufficient undisputed essential facts, satisfying each of the three aspects of Wynne 's requirements. First, the Committee, made up of eminent members of the College faculty, deliberated this issue over the course of two months. The eleven Committee members include four department chairmen and represent diverse disciplines beyond the foreign languages. Though it would have been better to have kept minutes of all seven meetings, the four meetings provide the Court with sufficient insight to allow the Court to review the procedure that BU followed and to "demythologize[ ] the institutional thought processes ...." Wynne II, 976 F.2d at 795. BU took pains to insulate President Westling from the process to remove any concerns about his earlier comments which, in substantial part, necessitated this remedy. The Committee gave adequate notice to College students, both with and without learning disabilities, of the opportunity to provide input into the Committee's decision. The Committee's reliance on only its own academic judgment and the input of College students was reasonable and in keeping with the nature of the decision. [FN4]
FN4. For example, the Committee excluded Elizabeth Guckenberger, a named plaintiff and current BU law student, from the meetings because she was not enrolled in the College, which was the only faculty at BU affected by this decision.
Second, the Committee had vigorous discussions of the "unique qualities" of the foreign language requirement and its importance to the liberal arts curriculum. Id. at 794. Its members rallied around an articulated defense, highlighted throughout the Report, of the rigorous foreign language requirement of the College. In both the Minutes and the Report, the Committee mentioned technical educational gains from the learning of foreign languages, such as enhancing an ability to read foreign literature in its original form and laying a "foundation" for other areas of academic concentration. (See, e.g., Report at 3 4.) For example, some members at the October 8 meeting believed it was important to be immersed in ancient Greek and Latin to understand Greek and Roman cultures. Another Committee member waxed "that someone who can read in French would realize that Madame Bovary dies in the imperfect tense, something we don't have in the English language, and it makes for a very different understanding of the novel."
Additionally, the Committee repeatedly emphasized its view that foreign language study uniquely contributed to the College's emphasis on multiculturalism: "A mind cooped up within a single culture is not liberally educated, and knowledge of a foreign language is essential to countering parochialism of outlook and knowledge." (Id. at 4.) The Committee also portrayed foreign language study as part of a broader liberal arts education which, in its view, contemplates "some competence in thinking in diverse areas of knowledge." (Id.) Commenting on the specific contribution of foreign language learning to liberal arts, the Committee reported that "[e]ncountering a foreign culture in and through the complexities of its verbal structures and representations poses a unique challenge to familiar idioms, settled habits of mind, and securities of knowledge." (Id. at 8.)
Third, the Committee "explained what thought it had given to different methods" of meeting the requirement and "why it eschewed alternatives" to meeting the requirement. Wynne II, 976 F.2d at 794. The minutes indicate that alternatives were discussed in at least four of the Committee's meetings. The Report discusses objections to the Committee's conclusion. One dissenting member suggested an alternative proposal whereby a "student would select courses from a faculty approved list that focus on the language, culture, history, literature, and art of countries where the language is spoken." (Report at 8.) However, "[n]o other member shared this belief that the goals of foreign language study could be met by 'alternative paths' outside the foreign languages." (Id.) Additionally, the objections of several students were noted at length. (See id. at 6 7; Nov. 14 Meeting Minutes.)
As a whole, the Committee concluded that "[n]o content course taught in English can substitute fully for the insider access to other cultures  with its attendant invitation to thoroughgoing critical self awareness  that is the hallmark of foreign language study." (Report at 8.) The Committee acknowledged that some students, both learning disabled and not, will "struggle" with the rigorous requirement, but nonetheless concluded "that no other goal could serve the same purpose within the [College] curriculum." (Id. at 7 8.)
Furthermore, the Committee discussed the College's existing accommodations of learning disabled students attempting to fulfill the foreign language requirement, a consideration that weighs in BU's favor in this analysis. See Wynne II, 976 F.2d at 795 (noting with favor Tufts' accommodations of tutoring, taped lectures and untimed examinations). The College allows all its students to satisfy the foreign language requirement in a variety of ways, including a free "Foreign Language Enhancement Program" that provides one on  one instruction to learning disabled students navigating the required sequences of language classes. (Report at 10 11.) *89 Learning disabled students are allowed spelling accommodations in language classes, and student tutoring is provided by the foreign language department at no cost to students. BU provides for additional time on tests, a reading track for French and Spanish, distraction free testing, distribution of lecture notes in advance, and replacement of written with oral exams.
C. Professional, Academic Judgment
****
Plaintiffs attack the academic judgment of the Committee in three ways. First, they argue that BU's decision does mark "a substantial departure from accepted academic norms" because a majority of other colleges and universities  including Princeton, Harvard, Yale, Columbia, Dartmouth, Cornell and Brown  either do not have a general foreign language requirement or permit course substitutions for foreign languages. They also point out that the academic program would not be substantially affected because at BU only 15 students (out of 26,000) a semester would require such course modifications and suggest that similar low numbers of students requesting accommodations in other universities inform their willingness to allow substitutions. (See Shaw Decl. ¶ 9). The evidence that BU is only among a handful of schools of higher education in its decision to deny course substitutions in language requirements is relevant to an evaluation of its decision to deny a reasonable accommodation. However, a court should not determine that an academic decision is a "substantial departure from accepted academic norms" simply by conducting a head count of other universities. This approach is particularly inappropriate in the protean area of a liberal arts education. The liberal arts curriculum cannot be fit into a cookie cutter mold, unlike the medical school curriculum in Wynne, where no one disputed that mastery of biochemistry was necessary.
The Wynne decisions indicate that the appropriate question is whether BU's decision is "rationally justifiable" rather than the only possible conclusion it could have reached or other universities have reached. See Wynne I, 932 F.2d at 26. In Wynne II, the First Circuit endorsed the professional, academic judgment of Tufts Medical School officials, who had concluded after deliberation that allowing a requested accommodation "would require substantial program alterations, result in lowering academic standards, and devalue Tufts' end product...." Wynne II, 976 F.2d at 795; see also Bercovitch, 133 F.3d at 154 ("The law does not require an academic program *90 to compromise its integral criteria to accommodate a disabled individual."). The Court of Appeals there rejected a similar argument that at least one other medical school and a national testing service had permitted oral renderings of multiple choice examinations. 976 F.2d at 795. Instead, because "Tufts decided, rationally if not inevitably, that no further accommodation could be made without imposing an undue (and injurious) hardship on the academic program," Wynne II, 976 F.2d at 795, the First Circuit ruled as a matter of law that the medical school had met its burden under the ADA.
This Court concludes that so long as an academic institution rationally, without pretext, exercises its deliberate professional judgment not to permit course substitutions for an academic requirement in a liberal arts curriculum, the ADA does not authorize the courts to intervene even if a majority of other comparable academic institutions disagree.
Second, plaintiffs challenge the substance of the Committee's conclusions and analysis. Specifically, they argue that there are sixteen "material facts" in dispute, such as the following: (1) the two year (four semester) foreign language requirement is not "sufficient to permit the vast majority of students to read major works of literature in a foreign language," thus debunking the Madame Bovary line of argument as involving an imperfect logic, not an imperfect tense; (2) a "foreign language requirement does not provide students with educational benefits regarding a foreign culture;" (3) there is "no particular thinking process involved in learning a foreign language that is distinct from any other type of learning;" and (4) BU's "foreign language requirement does not address ethnocentrism among students."
*****
Plaintiffs' final mode of attack is to argue that BU's report does not meet the minimum accepted standards of academic study and inquiry, especially in the Committee's not having referred to outside experts. Prior to the initiation of this litigation, President Westling did not substantially consult experts in learning disabilities or engage in any deliberative process in reaching his decision to preclude course substitutions. In Guckenberger II, I held that a decision involving reasonable accommodations must involve more than an ipse dixit or blind adherence to the status quo. See 974 F.Supp. at 149. However, the Committee's deliberative process occurred after a lengthy trial in which experts in the field of learning disabilities testified about the difficulty which students with learning disabilities experience in their efforts to gain proficiency in a foreign language. This testimony summarized in Guckenberger II was available to the members of the Committee. In light of the tight timetable which the litigation imposed on the Committee, and the expert evidence in prior proceedings, I am unpersuaded that further academic study (like a "longitudinal" study) would have refined or altered the decision  making process, which ultimately involved a qualitative evaluation: What is essential to a liberal arts education?
Plaintiffs' vigorous attacks on BU's submission generally overstate the Court's level of scrutiny at this stage of litigation. My opinion as to the value of foreign languages in a liberal arts curriculum is not material so long as the requirements of Wynne have been met. Despite plaintiffs' attempts to pull truly academic policy debates into the courtroom, the facts "essential" to this order are actually undisputed: BU implemented a deliberative procedure by which it considered in a timely manner both the importance of the foreign language requirement to this College and the feasibility of alternatives. Plaintiffs' argument that the procedure should have been more extensive and inclusive  effectively, more like a legal proceeding  does not have any support in the Wynne opinions.
BU's deliberations and conclusions pass muster under Wynne. The Court has no cause to doubt the academic qualifications and professionalism of the eleven members of the Committee. There is no evidence that the Committee's decision was mere lip service to the Court's order or was tainted by pretext, insincerity, or bad faith, beyond plaintiffs' unsubstantiated speculation that President Westling's bias infected the Committee. See Wynne II, 976 F.2d at 796 (placing burden on plaintiffs "to produce specific facts" of pretext). The Report is rationally premised on the Committee's conclusion that the liberal arts degree is "[i]n no sense a technical or vocational degree" like other degrees and that, in its view, the foreign language requirement "has a primarily intellectual, non utilitarian purpose." (Report at 5.) With the justifiable belief in mind that this decision could not be made empirically, the Committee concluded that "[k]nowledge of a foreign language is one of the keys to opening the door to the classics and so to liberal learning. It is not the only key, but we do judge it as indispensable." (Id. at 7.)
The Court concludes that the Committee's judgment that "a person holding a liberal arts degree from Boston University ought to have some experience studying a foreign language," (id.), is "rationally justifiable" and represents a professional judgment with which the Court should not interfere. Therefore, the Court concludes as a matter of law that BU has not violated its duty to provide reasonable accommodations to learning disabled students under the ADA by refusing to provide course substitutions.
ORDER
Defendant Boston University has proven that it complied with paragraph two of the Court's order of August 15, 1997. See Guckenberger v. Boston Univ., 974 F.Supp. 106, 154 55 (D.Mass.1997).
SO ORDERED.


1 The full text of this opinion may be found at 8 F. Supp. 2d. 82 (D. Mass. 1988)


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