One Size Doesn’t Fit All
By John C. Wyvill and Mari Serebrov
In a case with ramifications for the entire higher education community, a federal appeals court made it clear that there is no one-size-fits-all approach to accommodating the unique needs of deaf and hard of hearing students.
“I know you said I only have to show up to pass, but I want to learn how to be a doctor, and I think it is important to understand what the patients are saying to me,” he told the university.
In overturning a lower court’s dismissal of Michael S. Argenyi v. Creighton University (No. 11-3336), the U.S. Court of Appeals for the Eighth Circuit ruled that a jury should determine whether the university’s Medical School discriminated against Michael Argenyi by denying his repeated requests for specific accommodations for his hearing access needs. What a jury must decide is whether Creighton’s refusal to provide the accommodations denied Argenyi the equal opportunity to gain the same benefit from medical school as his classmates, the court said in a unanimous opinion.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act don’t require academic institutions to provide every auxiliary aid or service that might be requested by a student with a disability, but they do require schools to provide “necessary” aids and services.
In an opinion applicable to all disabilities – not just the communication issues raised in Argenyi – the court reiterated that necessary aids and services go beyond mere access. It also suggested that it’s not up to colleges and universities to determine which services are necessary.
Citing the Justice Department’s ADA technical assistance manual, the Eighth Circuit panel noted that the student “is the one most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.” In other words, simply providing sign language interpreters, ramps and Braille signage doesn’t necessarily constitute ADA compliance.
Ensuring that disabled students are not “effectively excluded” isn’t enough, the court said. Instead, the ADA and the Rehabilitation Act require schools to take reasonable steps to provide disabled students with an educational experience equal to that offered to nondisabled students.
Argenyi began using hearing aids as a baby. He was raised with cued speech, a system that uses hand signals to visually represent the sounds of speech, and differentiate between sounds that appear the same on a speaker’s lips. In the eighth grade, he began using Communication Access Real-time Transcription (CART). Prior to his undergraduate studies at Seattle University, Argenyi received a cochlear implant in his right ear. However, he continued to use CART in the classroom and a cued speech transliterator for his lab course, both of which are recognized under ADA regulations as appropriate accommodations for deaf individuals. Argenyi graduated from Seattle University with a 3.87 grade point average.
When he applied to Creighton’s Medical School, Argenyi stated that he was hearing impaired. Upon admission, he requested the same services he had received at Seattle. His otolaryngologist, Dr. Douglas Backous, supported his request, informing Creighton that Argenyi would benefit from captioning, a cued speech transliterator and an FM system that directly transmits sound into cochlear implants. (Argenyi had received a bilateral implant before his August 2009 enrollment at Creighton.) According to court documents, Backous’ letter informed Creighton officials that Argenyi “remains … deaf regardless of if he is or is not using his cochlear implants … [as he] has a bilateral profound sensorineural hearing loss.”
Creighton agreed to provide the FM system for lectures, small groups and labs, but it denied the other requests. After two weeks of using only the FM system, Argenyi told the dean that he would pay for CART himself, as the university's “accommodations are inadequate as evidenced by the level of stress and fatigue I am experiencing, as well as the amount of information I am missing. ... [They] do not provide for meaningful participation nor independence as a student, and also put me at a significant disadvantage academically.” Backous also informed the dean that it was imperative for Argenyi to have visual cues to communicate. The school’s only response was to provide enhanced note-taking services.
In late September 2009, Argenyi filed suit in the federal district court in Omaha, Neb., seeking to compel Creighton to provide the aids and services he needed to “ensure effective communication.” Meanwhile, he continued to go to class, borrowing about $53,000 so he could pay for CART and interpreters himself. Several months into the program, Argenyi went to a specialist who found that the FM system Creighton was providing actually worsened his speech perception to 38 percent.
Argenyi repeated his request for accommodation before beginning his second year of medical school in the fall of 2010. This time, Creighton provided a transliterator for lectures only and a seat next to the instructor for small group discussions. The school continued to deny the request for CART. Finding that use of a transliterator alone was inadequate in conveying complex new vocabulary in a fast-paced setting, Argenyi once again borrowed money, about $61,000, to pay for CART himself.
He encountered a new problem in his second year, which included clinical courses that required him to interview and care for patients. Creighton refused to let Argenyi use transliterators for the courses, even if he paid for them himself. While this refusal was undoubtedly out of concern for patient privacy issues, it ignored the fact that all interpreters are bound by the same duties of confidentiality as the Creighton Medical School faculty and students.
After a few weeks of trying to get through the clinical courses without an interpreter, Argenyi repeated his request, explaining that he and his patients often failed to communicate effectively. “I know you said I only have to show up to pass, but I want to learn how to be a doctor, and I think it is important to understand what the patients are saying to me,” he told the university.
In one instance described in his court affidavit, Argenyi had to consult with the parents of a 2-month-old baby. The communication was so limited that he didn’t know why the infant had been hospitalized. When he raised the issue with the university, Argenyi said, nothing was done to remedy his inability to fully engage with patients in his clinic work. Eventually, he claimed, school officials advised him to refrain from making requests for additional auxiliary aids and services.
In January 2011, Argenyi and Creighton discussed settling the lawsuit. During the negotiations, the university agreed to provide an interpreter for the student’s clinical courses. But after the talks ended, he was once again prohibited from using an interpreter with patients, according to the court documents.Despite the obstacles he encountered, Argenyi passed all of his second-year courses and then took a leave of absence pending the resolution of his lawsuit.
What the Courts Said
The federal district court dismissed the lawsuit, ruling that Argenyi failed to show his requested accommodations were necessary as required under ADA. In doing so, the lower court refused to consider his affidavit, deeming it as “unsupported self-serving allegations.” On appeal, the Eighth Circuit court took issue with that characterization, pointing out that five letters to the university from the student’s doctors supported the claims in his affidavit. In one of those letters, Backous insisted 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,’” the appellate court noted. Also, Argenyi’s loan of more than $100,000 to pay for the services he requested provided strong evidence that Creighton’s accommodations were inadequate, according to the Eighth Circuit court decision.
The district court based its dismissal, in part, on an erroneous understanding of the Supreme Court’s ruling in PGA Tour Inc v. Martin, 532 U.S. 661 (2001), according to the appeals court. In that case, the high court ruled for Casey Martin, a professional golfer with a degenerative circulatory disorder who wanted to use a golf cart during a golf tournament. The ruling distinguished between Martin and players with less serious afflictions for whom walking an 18-hole golf course might cause discomfort but was not beyond their capacity. Rather than comparing Argenyi with Martin, the district court incorrectly drew a comparison between him and the “players with less serious afflictions,” determining that while Argenyi’s requests might be reasonable, they weren’t necessary because his medical school experience, “although ‘uncomfortable or difficult,’ was not ‘beyond [his] capacity,’” the Eighth Circuit said.
That interpretation missed the point of PGA, the appellate court added, as the justices’ narrow ruling in PGA didn’t attempt to define “necessary.” (The PGA had already conceded that Martin’s request was both reasonable and necessary.) Instead, the Supreme Court addressed whether allowing Martin the golf cart accommodation would give him a competitive advantage over other golfers in the tournament. Fairness to other students was not an issue in Argenyi.
In one of several friend-of-the-court briefs submitted in support of Argenyi, the Department of Justice (DOJ) argued that getting around a golf course “is far different from a person's ability to understand what is spoken in [a] classroom or clinical instruction in medical school.”
Nothing in the Supreme Court’s comments about a professional athlete's fatigue during competition suggest an application to “individuals with hearing impairments seeking auxiliary aids and services to ensure effective communication in an academic setting,” DOJ added. (Briefs also were submitted by the Alexander Graham Bell Association for the Deaf and Hard of Hearing, Association of Medical Professionals with Hearing Losses and National Disability Rights Network.)
Despite Argenyi’s success at the appellate level, his ultimate victory is not a fait accompli. He now must convince a jury that his requests for auxiliary aids and services were necessary. And Creighton can submit evidence to convince the jury that the cost of Argenyi’s requests would impose an undue burden on the university. While Argenyi v. Creighton is far from over, the granting of a jury trial will likely encourage students with disabilities--and their parents--to press harder for services tailored to their educational needs. The ruling also sends a strong message to colleges and universities that ADA compliance is not about meeting minimum standards in a show of lip service to the law. It is about responding to the individual needs of students with disabilities. That’s as it should be. With each student they admit, schools undertake a responsibility to provide an appropriate learning environment and the best education possible. Their responsibility to students with disabilities is no less.
Perhaps one of the most important lessons in Argenyi is the guidance the Eighth Circuit gave on “meaningful access,” which both it and the Ninth Circuit have set as the standard for determining necessary accommodations for people with disabilities. Under meaningful access, the auxiliary aids and services provided are not required to produce the identical result or level of achievement for disabled and nondisabled students, but they “must afford [disabled] persons equal opportunity to ... gain the same benefit,” the court said.
The practical application of the standard means schools cannot simply declare a deaf or hard of hearing student is “effectively included” with whatever accommodation the school chooses to provide. Instead, academic programs must engage in a fact-intensive review based on the specific context to determine whether an accommodation truly gives a particular student an equal opportunity to benefit.
A school’s first step in this process is to show how nondisabled students use, and benefit from, its educational programs. The second step is to demonstrate that reasonable measures were taken to ensure that a deaf or hard of hearing student will have a like experience.
As opposed to a one-size-fits-all approach, meaningful access is a tailored fit that makes use of a variety of communication modes available to accommodate the specific needs of a deaf or hard of hearing student.
Another lesson Argenyi teaches is the pressing need for higher education officials to keep current on best and promising practices to ensure meaningful access for deaf and hard of hearing students. In-service training should include cultural competency and explain the role of qualified interpreters and the code of professional conduct they must follow. Such training would go a long way in reducing the disconnect and the gap of knowledge about the tools and services available to help provide meaningful access.
Argenyi also demonstrates the need for proactive support networks, such as Hands & Voices, so parents and students know what resources and options are available. Strong partnerships involving the student, government agencies, disability advocates and higher education officials are essential to ensuring that the accommodation conversation produces positive educational outcomes for the student.
A lesson deaf and hard of hearing students should learn from this case is the steps they need to take to support their request for accommodation, especially in light of the knowledge gap prevalent on many campuses. Keeping in mind that a school may not have dealt with a particular issue before, a student should confer with medical professionals, disability rights organizations and other relevant experts prior to making a request for accommodation. While in high school, a student should be exploring options to learn what supports and services are most effective in creating equal access for learning.
Such preparation will help the student give an informed response if the school asks for more information, declines the request or offers an alternative that will not result in meaningful access.
What Lies Ahead
On a positive note, Argenyi illustrates a growing awareness, understanding and acceptance – at least in some courts – that a one-size-fits-all approach doesn’t adequately accommodate the needs of all deaf and hard of hearing students.
Because each student is unique, the Eighth Circuit recognized that colleges and universities must use a variety of communication modes to ensure that every student, regardless of his or her hearing loss, has an opportunity to benefit from the educational program equal to that of nondisabled students.
The case also serves as a cautionary tale, highlighting the volumes of work that still need to be done among various stakeholders to provide meaningful access to higher education for deaf and hard of hearing students. Unfortunately, more ligation may be required before that access is available at every college and university.
Editor’s note: John Wyvill is a former vice chairman of the U.S. Access Board. A graduate of the University of Arkansas at Little Rock School of Law, he served as director of Arkansas Rehabilitation Services and the Arkansas Department of Workforce Education (DWE). He has a 95 percent hearing loss in both ears.
Mari Serebrov covers regulatory affairs for an industry newsletter. While serving as the director of student media at Louisiana State University and then as communications director at DWE, she worked closely with students with disabilities and advocated for their rights.