     Case: 15-41294    Document: 00513771896    Page: 1   Date Filed: 11/23/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 15-41294                           FILED
                                                                 November 23, 2016

RUSSELL CAMPBELL,
                                                                   Lyle W. Cayce
                                                                        Clerk

                  Plaintiff - Appellant

v.

LAMAR INSTITUTE OF TECHNOLOGY; REBECCA COLE, in her official
capacity; VIVIAN JEFFERSON, in her official capacity; DOCTOR BETTY
REYNARD, in her official capacity; GWEN WALDEN, in her official capacity,

                  Defendants - Appellees



                 Appeal from the United States District Court
                      for the Eastern District of Texas


Before JONES, DENNIS, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      In this appeal, plaintiff-appellant Russell Campbell challenges the
district court’s dismissal of his Americans with Disabilities Act and
Rehabilitation Act claims. Campbell’s claims are based on defendant-appellee
Lamar Institute of Technology’s (LIT) failure to grant his requested disability
accommodation.        Eleventh Amendment immunity does not bar the
Rehabilitation Act claim. Because LIT’s denial of Campbell’s accommodation
request was reasonable, we AFFIRM the district court’s grant of summary
judgment in favor of LIT.
      Case: 15-41294     Document: 00513771896       Page: 2     Date Filed: 11/23/2016



                                    No. 15-41294
                                BACKGROUND
       Russell Campbell is a former student at Lamar Institute of Technology
(LIT) where he earned an Associate’s Degree in Emergency Medical Services
(EMS) and subsequently enrolled in LIT’s Respiratory Care Program. Due to
an anoxic brain injury, Campbell struggles to retain and process information.
While he was enrolled in the EMS program, LIT accommodated his learning
disability by extending time for all of his exams and providing a laptop and a
recorder to help with note-taking during class.              In addition, on her own
initiative, one of Campbell’s professors, Stephanie Lanoue, created a unique
accommodation by permitting Campbell to take two exams: one at the same
time as the rest of the class and a second exam—which was different, but
covered the same material—two weeks later.
       In response to his declining performance, Campbell met with Rebecca
Cole, the Coordinator of Special Populations Programs, to request another
accommodation. In addition to the accommodations he was already receiving,
Campbell requested that, similar to his arrangement with Professor Lanoue,
he be permitted to take two exams in each class: one at the same time as the
other students and another two weeks later. Alternatively, he requested two
extra weeks of study time after the other students had taken the exam (which
would also require creation of a second exam to prevent cheating). In support
of his request, he offered a doctor’s note, which stated that “he needs a week to
two weeks to retain new information prior to testing over that material.”
       Cole consulted with Dr. Jefferson, the Vice President of Student Services,
and with other vice presidents of other Texas State University schools. Cole
and     Jefferson      determined    that       Campbell’s     requested     additional
accommodation would be unreasonable because it would give Campbell an
unfair advantage over his classmates and would burden professors by
requiring them to modify their teaching or testing schedules. They then met
                                            2
    Case: 15-41294    Document: 00513771896     Page: 3   Date Filed: 11/23/2016



                                 No. 15-41294
with Campbell and his wife to explain why they denied his request, but stated
that he could ask individual instructors to accommodate him, as instructors
have discretion to make accommodations beyond those required by the Special
Populations office.   During this meeting, Campbell’s wife inquired about
withdrawal from LIT, stating that she and Campbell discussed this route as
an option to preserve his GPA. Dr. Jefferson additionally told Campbell that
if he was unhappy with this decision, he could contact Dr. Reynard, the Vice
President of Academic Affairs.
      Campbell met with one of his instructors, Gwen Walden, to ask whether
she would nevertheless provide his requested accommodation and to discuss
his health. She told him that she was scared for his well-being and that his
bluish skin tone indicated dangerously low levels of oxygen, which can lead to
fainting or death. Walden also told him that she would meet with other
instructors to discuss his accommodation.
      A few days later, Campbell met with these instructors to consider an
individualized plan for success.     While instructors were standing, they
informed him that they would only provide him with the originally approved
accommodations and would not alter the testing schedule. Given that he had
several days of absences and had missed many exams, Walden expressed
concern about whether Campbell would be able to catch up in class. Campbell
then expressed interest in dropping his courses to preserve his GPA as well as
entering into cognitive therapy to improve his memory and address other
health issues; Walden agreed that this would be a good plan.          Campbell
withdrew from LIT later that day.
      Shortly thereafter, Campbell filed a grievance to the Dean of Instruction
based upon the denial of his requested accommodations. The Dean forwarded
that email to Reynard. Less than a month later, Reynard responded to the
grievance and stated that LIT would provide reasonable accommodations
                                      3
    Case: 15-41294    Document: 00513771896     Page: 4   Date Filed: 11/23/2016



                                 No. 15-41294
supported by medical documentation and would waive tuition and fees for the
next semester. Campbell rejected this offer.      In his deposition, Campbell
stated that he would not return to LIT because he does not feel wanted.
      Nine months later, Campbell filed this lawsuit, contending that LIT’s
denial of his requested accommodation violated Title II of the Americans with
Disabilities Act (ADA) and § 504 of the Rehabilitation Act. Campbell sued LIT,
as well as Cole, Jefferson, Walden, and Reynard (collectively, “defendants”) in
their official capacities, seeking compensatory damages and declaratory and
injunctive relief.
      The district court granted the defendants’ motion for summary
judgment. First, the district court held that Campbell’s claim for damages was
moot because LIT granted his accommodation nine months before the lawsuit
was initiated through Reynard’s response letter to Campbell’s grievance.
Second, the district court held that Campbell lacked standing to seek
injunctive or declaratory relief because he could not demonstrate an impending
injury in fact. Finally, the district court alternatively held that Campbell’s
damages claim was barred by Eleventh Amendment sovereign immunity
because his ADA claim was moot and because he had not stated a claim for
relief under the Fourteenth Amendment. The court also noted that Campbell
would not be entitled to prospective injunctive relief under Ex Parte Young
because he lacked standing to obtain such relief. Campbell timely appealed.
                         STANDARD OF REVIEW
      The court reviews a district court’s grant of summary judgment de novo.
Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). A party is entitled to
summary judgment if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ.
P. 56(a)). “A genuine issue of material fact exists if a reasonable jury could
enter a verdict for the non-moving party.” Id. (citation omitted). The court
                                       4
    Case: 15-41294    Document: 00513771896     Page: 5   Date Filed: 11/23/2016



                                 No. 15-41294
views the facts and evidence in the light most favorable to the non-moving
party. Id. The court may affirm a grant of summary judgment on any grounds
supported by the record and presented to the district court. Cuadra v. Hous.
Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) (citation and quotation
marks omitted).
                                DISCUSSION
      A. Sovereign Immunity
      The district court erred in concluding that LIT is entitled to sovereign
immunity. Eleventh Amendment sovereign immunity does not bar Campbell’s
Rehabilitation Act claim for money damages.
      State entities that accept federal funding knowingly and voluntarily
waive their sovereign immunity to suit under § 504 of the Rehabilitation Act.
Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 274 (5th Cir. 2005) (en banc).
The parties do not dispute that LIT receives federal funding.         Sovereign
immunity therefore does not bar Campbell’s suit for damages under § 504 of
the Rehabilitation Act. 42 U.S.C. § 2000d-7. Accordingly, we pretermit any
discussion of whether Congress abrogated LIT’s sovereign immunity through
Title II of the ADA “because the rights and remedies under either are the same
for purposes of this case.” See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d
448, 455 (5th Cir. 2005) (declining to reach the issue of abrogation under
Title II of the ADA after concluding that sovereign immunity did not bar the
plaintiffs’ claim under § 504). Why the Texas Attorney General, representing
the appellees here, chose to pursue the question of Eleventh Amendment
abrogation under Title II of the ADA is a mystery; the state even failed to cite
our en banc decision in Pace.
      Because the parties addressed the reasonable accommodation claims on
the merits to the district court and the parties have briefed these claims on
appeal, we proceed to address the claims.
                                       5
    Case: 15-41294    Document: 00513771896     Page: 6   Date Filed: 11/23/2016



                                 No. 15-41294
      B. Duty to Accommodate
            a. Mootness
      Campbell’s claim for compensatory damages is not moot.          A case is
dismissed as moot if “an intervening circumstance deprives the plaintiff of a
‘personal stake in the outcome of the lawsuit,’ at any point in the litigation.”
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). To demonstrate this
ongoing personal stake in the litigation, the plaintiff must show that “he has
sustained or is immediately in danger of sustaining some direct injury.” Los
Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665 (1983) (internal
quotations omitted). Campbell alleges that he sustained a direct injury from
LIT’s past intentional discrimination. Thus, whether or not the President’s
letter remedies Campbell’s injury prospectively does not moot Campbell’s
claim for retrospective relief for the period in which LIT denied his
accommodation request.      To the extent that Campbell seeks to recover
compensatory damages for this past action, his claim is not moot.
            b. Discrimination under the Rehabilitation Act
      Campbell asserts discrimination under the Rehabilitation Act.         The
ADA’s language generally tracks the language of the Rehabilitation Act and
expressly states that the “remedies, procedures and rights” of the
Rehabilitation Act are obtainable under the ADA. 42 U.S.C. § 12133 (1995);
Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002). As such,
the “[j]urisprudence interpreting either section is applicable to both . . . .”
Delano-Pyle, 302 F.3d at 574 (internal quotations and citations omitted).
      As relevant in this case, the Rehabilitation Act discrimination claim
turns on whether the institution discriminated against the student based on




                                       6
     Case: 15-41294          Document: 00513771896             Page: 7      Date Filed: 11/23/2016



                                           No. 15-41294
his disability. 1 Argenyi v. Creighton Univ., 703 F.3d 441, 447 (8th Cir. 2013).
Discrimination includes a failure to make reasonable accommodations. Feist v.
La. Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir.
2013); 42 U.S.C. § 12132; 29 U.S.C. § 794 (a). However, an institution is not
required to ‘‘lower or [] effect substantial modifications of standards to
accommodate a handicapped person,” if its standards are reasonable. Se. Cmty.
Coll. v. Davis, 442 U.S. 397, 423, 99 S. Ct. 2361, 2377 (1979); see also 34 C.F.R.
§ 104.44(a) (“Academic requirements that the recipient can demonstrate are
essential to the instruction being pursued by such student or to any directly
related licensing requirement will not be regarded as discriminatory . . . .
Modifications may 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.”). A disabled student does not have a right to
his accommodation of preference. 2                     E.E.O.C. v. Agro Distribution, LLC,
555 F.3d 462, 471 (5th Cir. 2009).
        A student may only recover compensatory damages upon a showing of
intentional discrimination. Delano-Pyle, 302 F.3d at 574. When the record is
“devoid of evidence of malice, ill-will, or efforts . . . to impede” a disabled
student’s progress, summary judgment must be granted in favor of the
university.      Id.    In such a case, this court must defer to the university’s
academic decision not to alter its program. Id.; see also Halpern v. Wake Forest


        1The Rehabilitation Act requires a showing that the student is a disabled, qualified individual
and that the institution receives federal funds. 29 U.S.C. § 794 (a).

        2 The Appendix to the ADA regulation provides: “The accommodation, however, does not have
to be the ‘best’ accommodation possible, so long as it is sufficient to meet the job-related needs of the
individual being accommodated .... [T]he employer providing the accommodation has the ultimate
discretion to choose between effective accommodations, and may choose the less expensive
accommodation or the accommodation that is easier for it to provide.” 29 C.F.R. pt. 1630, App.,
§ 1630.9.
                                                   7
    Case: 15-41294    Document: 00513771896    Page: 8     Date Filed: 11/23/2016



                                No. 15-41294
Univ. Health Scis., 669 F.3d 454, 463 (4th Cir. 2012) (joining eight other
circuits that have “extended some level of deference to schools’ professional
judgments regarding students’ qualifications when addressing disability
discrimination claims.”).
      The parties here dispute whether LIT failed to act reasonably when it
denied Campbell’s request for another accommodation. Campbell argues that
his accommodation request was reasonable because it would not require
fundamentally changing the Respiratory Care Program and it was supported
by medical documentation. Campbell further argues that LIT was motivated
by intentional discrimination in denying his request.
      Upon a full review of the summary judgment evidence, we afford
deference to LIT’s decision because Campbell has not demonstrated that LIT
intentionally discriminated against him. McGregor v. Louisiana State Univ.
Bd. of Sup'rs, 3 F.3d 850, 859 (5th Cir. 1993).         Each of the six alleged
statements and actions recited by Campbell is either not supported by the
record or could not plausibly be construed by a reasonable fact finder as an
example of intentional discrimination.
      First, Campbell alleges that the instructors expressed “ignorant opinions
that the disabled are simply unequal to other students.” Campbell provides no
supporting record citations, and a review of the summary judgment evidence
does not disclose any such statements. Indeed, the only record evidence reveals
just the opposite: each of the instructors categorically denied making such
statements. Second, Cole’s belief that the requested accommodation might
give Campbell an “unfair advantage” over other students does not qualify as
intentional discrimination, as this concern would apply to any student—
disabled or not—requesting such an accommodation. Third, Campbell alleges
that if the accommodation were granted, instructors would retaliate against
him. But Campbell does not point to any record evidence to support this
                                         8
      Case: 15-41294        Document: 00513771896           Page: 9     Date Filed: 11/23/2016



                                         No. 15-41294
allegation. The only summary judgment evidence that even hints at such a
statement is        contained      in    Campbell’s       own     verified    statement       that
“Dr. Jefferson said that she could make the instructors give me the
accommodation but that they didn’t want to and that it wouldn’t work out.”
This does not imply retaliation or discriminatory animus. Rather, it reflects
the    difficulties     LIT     perceived       in    providing       Campbell’s       requested
accommodation, which might increase the workload of teachers and require
the instructors to alter their schedules outside of the academic calendar.
Fourth, Walden’s comment about Campbell’s skin color is an expression of her
concern for his health, because his respiratory illness affects his oxygen intake
and makes his face appear bluish. 3              No reasonable fact finder could derive
discriminatory intent from this statement. Fifth, an instructor’s comments
regarding Campbell’s drop in class standing and his tardy submission of
doctor’s notes are appropriate for a meeting concerning his academic progress.
Sixth, the fact an instructor stood during a meeting with Campbell does not
constitute discriminatory bias. 4
       An institution is not duty bound to acquiesce in and implement every
accommodation a disabled student demands. Here, the record indicates that
Campbell’s request was considered at multiple levels of the institution, from
the individual faculty members up to the school’s President. Cole additionally
consulted Vice Presidents of Student Services at other TSU institutions for
their opinions on the reasonableness of Campbell’s requested accommodations,
and the spokesmen unanimously responded that they would not grant the
requested accommodation. Moreover, the reasons LIT provided for initially


       3 Indeed, Campbell’s own attorney made a similar statement concerning the color of Campbell’s
ear during Campbell’s deposition.

       4  This is a disingenuous inference. In Campbell’s own words, the instructor stood “to be
eyelevel” with him because she “ain’t no taller than a dachshund.”
                                                 9
   Case: 15-41294    Document: 00513771896      Page: 10   Date Filed: 11/23/2016



                                 No. 15-41294
denying Campbell’s accommodation request are serious: (1) Campbell might
obtain an unfair advantage over other students by having an extra two weeks
to study; (2) instructors would be burdened by having to create two versions of
an exam; (3) instructors may have to schedule Campbell’s exams outside of the
academic calendar; and (4) Campbell’s request could require instructors to
lower the academic standards of the class.    Such concerns relate to whether
Campbell’s request is a “reasonable deviation from the [institution’s] usual
requirements . . . without sacrificing the integrity of the . . . program.”
McGregor, 8 F.3d at 858;      cf. Dean v. Univ. at Buffalo Sch. Of Med. &
Biomedical Scis., 804 F.3d 178, 191 (2d. Cir. 2015) (declining to afford
deference where the record lacked evidence indicating that the school
“diligently assessed whether the alteration would allow Dean the opportunity
to continue in the M.D. program without imposing undue financial and
administrative burdens on UBMED or requiring a fundamental alteration to
the academic caliber of its offerings”). LIT’s objections legitimately relate to
the impact the requested accommodation would have on the program, and are
not “academic decisions [] disguis[ing] truly discriminatory requirements,”
Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999).
      It is also notable that Cole and Jefferson told Campbell they would not
require his instructors to provide him with this extra accommodation, but
Campbell could ask each instructor individually to do so. Finally, Campbell’s
request was for an additional accommodation—LIT had accommodated
Campbell’s disability with extra exam time and provided Campbell with a
laptop and a recording device for lectures.           Taken together, these
accommodations are reasonable; Campbell is not entitled to his preferred
accommodation. The summary judgment evidence thus does not reflect efforts
of LIT to impede Campbell’s progress. McGregor, 8 F.3d at 859. Campbell


                                      10
     Case: 15-41294         Document: 00513771896              Page: 11      Date Filed: 11/23/2016



                                           No. 15-41294
therefore has not created a genuine issue of material fact supporting his
intentional disability discrimination claim. 5
        C. Standing to Seek Declaratory and Injunctive Relief
        Even if he had adduced a triable fact issue on discrimination, Campbell
cannot recover injunctive or declaratory relief from LIT because he lacks
standing.       Campbell seeks to recover injunctive and declaratory relief to
prevent LIT from denying reasonable accommodations in the future. 6
        To establish Article III standing, a plaintiff must show: (1) an injury in
fact that is concrete, particularized, and imminent, and is not conjectural or
hypothetical; (2) a causal connection demonstrating that the injury is fairly
traceable to the defendant’s challenged actions; and (3) that it is likely—not
simply speculative—that a favorable decision will redress the injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2137 (1992)
(citations and quotation marks omitted).
        Campbell’s        alleged      prospective        injury      is   entirely      speculative,
hypothetical, and lacks imminence, as Campbell withdrew from LIT and has
repeatedly said that he will not return.                    The likelihood of LIT’s denying
Campbell reasonable disability accommodations in the future is therefore too
remote to state a cognizable injury in fact. See Lyons, 461 U.S. at 105–10,
103 S. Ct. at 1667–69 (holding that Lyons lacked standing to seek injunctive
relief because there was no evidence that he faced a “real and immediate threat


        5 Campbell also asserts novel theories of disability discrimination: “constructive dismissal”
from an educational institution and “educational harassment.” The district court correctly dismissed
these claims as not legally cognizable.

        6 Campbell also curiously states that he seeks to recover declaratory relief specifying the rights
of other students with disabilities at LIT. This lawsuit is not a class action, however, and Campbell
has not attempted to show that he satisfies the requirements for third-party standing, which would
require demonstration that he has a close relationship with the third parties and that third parties
are hindered from asserting their own rights. Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S. Ct. 564,
567 (2004).

                                                   11
   Case: 15-41294     Document: 00513771896     Page: 12     Date Filed: 11/23/2016



                                 No. 15-41294
of again being illegally choked” by the police); Armstrong v. Turner Indus.,
Inc., 114 F.3d 554, 563 (5th Cir. 1998) (noting that the plaintiff “has alleged
only a single, past statutory violation and does not assert any likelihood that
he will be subjected to a similar violation in the future.”). Because injunctive
or declaratory relief against LIT would not benefit Campbell, a non-student,
any possibility of future injury is not redressable by the court and he lacks
standing to assert a claim for equitable relief. See Armstrong, 114 F.3d at 563
(noting that “for the same reason he lacks standing to procure injunctive relief
he likewise has no standing to seek declaratory relief.”).
                               CONCLUSION
      For the foregoing reasons, the judgment of the district court granting the
defendants’ motion for summary judgment is AFFIRMED.




                                       12
