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26 June 1998

Vol. II, No. 1

Feature Article

Learning disabilities trial

Federal court upholds BU's foreign language requirement

by Brian Fitzgerald

On May 29, U.S. District Court Judge Patti B. Saris upheld Boston University's foreign-language requirement, resolving what she called the University's "key issue" in a discrimination lawsuit brought by students with learning disabilities in 1996.

Guckenberger vs. Trustees of Boston University -- the first class-action suit of its kind -- included a claim that some students' disabilities prevented them from learning a foreign language, which is a requirement in BU's College of Arts and Sciences. The case, which had been closely watched by much of the nation's academic community, affirmed the right of colleges and universities to establish and enforce academic requirements.

In justifying the University's policy, Judge Saris wrote 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 Americans with Disabilities Act does not authorize the courts to intervene even if a majority of comparable academic institutions disagree." The court also concluded that BU "has not violated its duty to provide reasonable accommodations to learning disabled students under the ADA by refusing to provide course substitutions."

"This decision is a victory for everyone who depends on the integrity of American universities," said BU President Jon Westling. "By preserving the right of universities to set and maintain educational standards, the court allows us to guarantee the credentials of our graduates, for their benefit and for the benefit of their future employers."

The legal proceedings had begun in July 1996, when 10 students with learning disabilities and attentional disorders filed a class action lawsuit in federal court. The case went to trial in April 1997. Attorneys for the students claimed that the University violated federal and state law by imposing what they characterized as a get-tough policy on BU's Learning Disabilities Support Services (LDSS) in late 1995 and early 1996.

BU attorney Lawrence Elswit explained that the University was enforcing long-standing policies by requiring students to fulfill all the requirements of their degree programs, and by requiring LDSS to apply uniform standards to the process of determining appropriate accommodations.

In a 112-page decision released in August, Judge Saris ruled that BU's present policy regarding the need for current learning disability evaluations was lawful. She also ruled that the University does have the authority to deny requests from students with learning disabilities to substitute alternative courses for the mathematics degree requirement.

However, she determined that BU's initial insistence on complete re-evaluations for all students with disability diagnoses that were more than three years old -- or that had been conducted by an evaluator who was not a physician or licensed clinical psychologist -- was illegal. On that basis, some of the students won minor damage awards in the case. Of the 10 plaintiffs, two students were awarded $1 each, and four others were awarded a total of $29,450.

At that time, Judge Saris left open the question of whether or not the University could continue to require that all CAS students complete a foreign language requirement. She directed the University to set up a faculty committee to determine whether a course substitution in foreign languages would fundamentally alter the nature of the liberal arts program.

After two months of deliberations, which included presentations from five undergraduates -- two of them learning-disabled -- the CAS Dean's Advisory Committee submitted its report, recommending against approving course substitutions for any student as an alternative to fulfilling the foreign language requirement. The Committee concluded that "knowledge 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."

BU's attorneys defended the Committee's procedures and findings against challenges from the plaintiffs' attorneys, and also told Judge Saris that the lawyers for the plaintiffs were inflating their rates and exaggerating their success in attempting to claim an "excessive" $2.4 million in fees and costs in trying the case.

On May 29, Judge Saris ruled in BU's favor on both issues. The CAS 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," she wrote.

In a separate opinion issued simultaneously, Judge Saris awarded $1.2 million in fees to the attorneys who argued against the University's policy -- approximately one half of what they had requested.

The plaintiffs had prevailed on several of their claims, including requests for monetary damages (albeit minor amounts). Under the ADA, plaintiffs' lawyers are entitled to recover "a reasonable attorney's fee, including litigation expenses, and costs."

Judge Saris explained, "the Court agrees with BU that plaintiffs' counsel overstaffed and overbilled in this case. The expenditure of 8,500 hours of legal services . . . is facially excessive."

Although the plaintiffs satisfied the relatively low threshold required for "prevailing party" status, Judge Saris pointed out that she had rejected their claims of "hostile learning environment" and "intentional infliction of emotional distress." "In fairness to BU, it won on its key issue," wrote Saris.

The plaintiffs' attorneys have indicated that an appeal is unlikely.