Argenyi v. Creighton University, No. 8:09CV341 (D. Neb. 9/22/2011) is a significant court decision in the ongoing battle between students, colleges and universities concerning the obligation of postsecondary institutions to provide access to effective communication and the relative weight to be afforded the expressed preferences of students with disabilities in the decision-making process. The controversy in Argenyi reflects a classic conflict between a student and an institution concerning the choice of accommodations; however, the resolution of the case will be surprising to many because of the assumptions that are dispelled. The pertinent facts are outlined below:

The student reported disability was a “significant hearing loss.” His accommodation history reflected that he used lip reading, as well as cued speech, as his primary means of communication. He also reported using CART Services. Prior to attending medical school, he received bilateral cochlear implants. Although he did not request accommodations for his admissions interview at Creighton University, he did discuss his accommodation needs, at that time.

Once he was admitted to the medical school he requested CART Services for lectures, interpreters for labs, and an FM system or interpreters for small group sessions as his accommodations. The medical documentation submitted with this request included a discussion of the progress of the implant procedures and suggested that the use of an FM system might “improve his communication strategies significantly.”  It was also noted that an FM system would be very important for rotations during his medical school attendance.  The report also indicated that it was too soon to determine how much his communication ability would be improved following the implant procedures.

The medical school’s response to the student’s accommodation request was to advise him to submit an updated evaluation once his implant surgery was completed. It was specifically noted that the medical report that the student submitted with his first request for accommodation was not a direct recommendation for accommodation and did not support the need for the accommodations that he was actually requesting. The student was advised to submit an updated diagnostic assessment and documentation related to the specific accommodations he requested. It was also noted, at that time, that the medical school had some concerns about whether the requested accommodations were reasonable and would permit the student to meet the technical standards of the program.

The student responded to the medical school’s concerns by submitting documentation from his physicians which stated that an FM system, CART and cued speech interpreters would be appropriate accommodations for him. The student also advised the medical school that in his prior employment history he had been able to function in a medical setting and perform all his duties without accommodations except for a text pager when he worked as a certified nurse's assistant. He reported that he “had been able to obtain clinical information in a clinical setting without significant accommodations” and; therefore, he felt that he could fulfill the technical standards of the program. He also stated that he had used CART and cued speech interpreters throughout his academic career. He maintained his position that the use of an FM system should be limited to small group settings.

The student’s accommodation request was reviewed by the school’s Medical Education Management Team (MEMT). The team assessed the student’s needs in conjunction with the program’s technical standard which “requires medical degree candidates to be capable of performing in a reasonably independent manner.” Based upon this review, the student was advised that he would receive the following accommodations: during lectures he would be permitted to sit in the first row, directly in front of the instructor and would receive an FM system, copies of all PowerPoint presentations and access to a note-taker’s notes. An FM system would also be provided for small group sessions and laboratories. The student was further advised that an FM system compatible with his implants would be purchased.

Prior to the beginning of classes, the student and his attorney attempted to persuade the school to provide him with the requested accommodations. He was advised, at that time, that he would need to submit additional documentation supporting the need for additional or different accommodations and clearly explaining why they were necessary in order to get the medical school to reconsider the accommodation issue. Two weeks into the semester, the student reported to the Associate Dean that the accommodations provided were inadequate. He specifically complained about delays in the note-taking services. He informed the Dean that he had made the decision to arrange and pay for CART and interpreter services on his own.

The medical school offered the student enhanced note-taking services and sought permission from the student to talk to his physician regarding a submitted medical statement in which the physician stated that it was imperative that cochlear implant users have access to visual cues in order to fully understand speech. The student instead sued the University alleging discrimination pursuant to the ADA and Section 504.

Prior to the beginning of the second year of medical school the student, was evaluated by another medical expert who reported that the use of the FM system “did not provide any significant benefit …and actually reduces [the student’s] discrimination ability.” The student renewed his request for interpreters and CART. The school modified the accommodations offered as follows: for lectures – front row seating, notes and interpreters; for labs with significant instruction – interpreters; and for other labs – visual cues and written instructions. The student was further informed he would not be permitted to use interpreters in clinical instruction, even if he paid for the services.

In ruling in favor of the University, the court made the following significant findings:

• Under Title III of the ADA, as well as Section 504, the University was entitled to make the “ultimate decision” concerning the academic adjustments, auxiliary aids and services that would be provided. The standards to be applied in judging the appropriateness of the accommodations offered are whether the measures or services selected “result[s] in effective communications” and “meaningful access.”
• Pursuant to Title III, institutions do not have to go beyond that which is “necessary” to avoid discriminating against the [student] in providing accommodations. The court further noted that while an accommodation might be reasonable if the individual with a disability cannot “show the failure to provide it would effectively exclude” them from the program, activity or service, the accommodation is not “necessary”. Statements that academic adjustments, services and/or aids would be “appropriate” or would “benefit” the individual are not sufficient.
• The student had failed to meet his burden of providing substantive evidence to support his claim that the University had failed to provide “necessary” modifications, accommodations, auxiliary aids and services to him. The court noted, for example, that the experts (his physicians and the disability service provider from his undergraduate institution) did not base their assertions regarding the need for CART services on an independent assessment of his functional limitations and the requirements of the medical school program; but, rather merely voiced the student’s expressed desires for the services. The court further noted that the expert recommendations were based upon uncertainty rather than any determination that CART was “necessary”.
• The court described the student’s statements regarding his needs as “self-serving allegations” and noted that the fact that his educational experience without the services and aids he requested might have been “uncomfortable or difficult” does not establish that “it was beyond his capacity.” The court specifically noted that the student passed his clinics without the benefit of interpreter services.

The belief of medical school professionals that the use of the requested accommodations would prevent the student from meeting the technical standard of “performing in a reasonably independent manner” and that he would be “better served if he completes his clinics without the aid of an interpreter” are academic decisions that was entitled to deference.