                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-1567



ROBERT W. BETTS, II,

                                              Plaintiff - Appellant,


           versus

THE RECTOR AND VISITORS OF THE UNIVERSITY OF
VIRGINIA,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Samuel G. Wilson, Chief
District Judge. (CA-96-54-3)


Argued:   December 3, 2003                 Decided:   August 5, 2005


Before WIDENER and KING, Circuit Judges, and Richard D. BENNETT,
United States District Judge for the District of Maryland, sitting
by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Dexter Brock Green, JONES & GREEN, L.L.P., Charlottesville,
Virginia, for Appellant. Richard Croswell Kast, Associate General
Counsel and Special Assistant Attorney General, Office of the
General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,
for Appellee. ON BRIEF: Paul J. Forch, General Counsel and Special
Assistant Attorney General, Susan M. Davis, Associate General
Counsel and Special Assistant Attorney General, Office of the
General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     This case has been argued on three previous occasions in this

court and has been decided by written opinion on two of those

occasions:    Betts v. The Rector & Visitors, etc., No. 97-1850 (4th

Cir. 1999)(unpublished); and Betts v. The Rector & Visitors, etc.,

No. 00-2305 (4th Cir. 2001)(unpublished).           It has also been the

subject of three published opinions in the district court:              Betts

v. Rector & Visitors, etc., 967 F. Supp. 882 (W.D. Va. 1997); Betts

v. Rector & Visitors, etc., 113 F. Supp. 2d. 970 (W.D. Va 2000);

and Betts v. Rector & Visitors, etc., 198 F. Supp. 2d 787 (W.D. Va.

2002).   We now affirm.

     In this appeal, Robert W. Betts challenges the district

court’s order granting summary judgment to the Rector and Visitors

of the University of Virginia on his discrimination claims brought

under the Americans with Disabilities Act (ADA), 42 U.S.C. §§

12101-12213 (2000) and the Rehabilitation Act of 1973, 29 U.S.C. §§

701-797b (1995).    At issue is the University’s decision to dismiss

Betts from a post-baccalaureate program and revoke a conditional

offer to accept him as a student in the University’s School of

Medicine   upon   successful   completion     of   the   post-baccalaureate

program.     We are of opinion that the University afforded Betts a

reasonable    accommodation    within   the   meaning    of   the   statutes,

whether Betts was actually disabled within the meaning of 42 U.S.C.

§ 12102(2)(A) or perceived to be disabled under 42 U.S.C. §


                                    3
12102(2)(C). We thus affirm the district court, which held that no

causal connection existed between Betts’ perceived disability and

the University’s refusal to grant him admission.



                                        I.

     The essential facts are undisputed.                Betts applied to the

University’s School of Medicine for entry in 1995 and was not

admitted but was placed on the alternate waiting list.                     As an

alternative to the waiting list, the University offered him a spot

in its Medical Academic Advancement Post-Baccalaureate program

(MAAP Postbacc). The Postbacc program was a one-year program

designed   to     prepare    minority    and   economically     disadvantaged

applicants for the first year of medical school.              Acceptance into

the Postbacc program carried with it admission to the School of

Medicine in the class ending in 1996 if that student completed the

Postbacc program’s requirements, which included maintaining a 2.75

grade-point      average    and   receiving    no   grade   lower   than   a   C.

Satisfactory performance was judged by the faculty of the program.

     Betts enrolled in that program in the summer of 1995, but he

did not meet the minimum requirements.              For the fall semester, he

had a 2.2 GPA and received a D- in Physics.            Rather than dismissing

Betts, the Postbacc Promotions Committee             allowed him to remain in

the program on a probationary basis. Betts was required to arrange

tutoring   and    to   contact    the   University’s     Learning   Needs      and


                                        4
Evaluation    Center   for       testing   to   determine    whether    he   had    a

learning disability.         The Committee also informed Betts that his

performance    would   be    re-evaluated        by   the   Postbacc   Promotions

Committee following the spring semester.

     After conducting a series of tests, the Learning Needs Center

concluded in April 1996 that Betts exhibited difficulties with

short-term memory and reading speed.                  This was reported to his

professors.      Later a more complete evaluation of the same tests

showed that Betts demonstrated “high average verbal conceptual

skills and average intellectual ability.”                   The evaluation also

revealed     “significant        weaknesses     in    particular   patterns        of

abilities” and evidence suggesting that Betts “lacks adequate

strategies when information exceeds the storage capacity of his

short term memory.”

     The Learning Needs Center recommended that Betts be given

twice the allotted time to complete his timed examinations. On his

five spring term exams, taken using the double time accommodation,

Betts had a 3.5 GPA.             However, Betts had taken several of his

spring   exams    prior     to    receiving     the    accommodation,    and   his

composite spring GPA was 2.84.                 Betts’ cumulative GPA for the

entire year was 2.53.

     The Postbacc Promotions Committee then met again and reviewed

Betts’ record.     Basing its decision on Betts’ failure to “meet the

overall 2.75 GPA standard for the academic year,” the Committee


                                           5
voted to drop him from the MAAP Postbacc program and rescind its

conditional offer of admission to the entry class of 1996 in the

School of Medicine.      Betts unsuccessfully appealed the decision to

the Dean of the School of Medicine.        He then filed this suit.1



                                   II.

     Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.”          42 U.S.C. § 12132 (1995).

Similarly, the Rehabilitation Act states that “[n]o otherwise

qualified individual with a disability . . . shall, solely by

reason of his of her disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under    any   program   or   activity    receiving   Federal   financial

assistance . . . .”      29 U.S.C. § 794(a) (1999).

     The ADA and the Rehabilitation Act are generally construed to

impose the same requirements.     See Baird ex rel. Baird v. Rose, 192

F.3d 462, 468-69 (4th Cir. 1999).        This principle follows from the



     1
       Betts initially alleged that the University’s actions also
violated 42 U.S.C. § 1983 and Virginia contract law. In a previous
opinion, we affirmed the district court’s grant of summary judgment
on these claims. See Betts v. The Rector & Visitors of Univ. of
Va., No. 97-1850, 1999 WL 739415 (4th Cir. Sept. 22, 1999)
(unpublished op.) aff’g 967 F. Supp. 882 (W.D. Va. 1997).

                                    6
similar language employed in the two acts.           It also derives from

the Congressional directive that implementation and interpretation

of   the   two   acts   “be   coordinated   to   prevent[]   imposition   of

inconsistent or conflicting standards for the same requirements

under the two statutes.”       Baird, 192 F.3d at 468 (citing 42 U.S.C.

§ 12117(b)) (alteration in original).

      Thus, to state a cause of action under the ADA or the

Rehabilitation Act, Betts must show that (1) he has a disability as

defined by the statute; (2) he is otherwise qualified for the

benefit in question; and (3) he was excluded from the benefit on

the basis of his disability.       Baird, 192 F.3d at 467 (citing Doe v.

Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995)).2



                                    III.

      In our second decision in this case, Betts v. The Rector &

Visitors of Univ. of Va., No. 00-2305 (2001), we decided that Betts

was not disabled under the provisions of 42 U.S.C. § 12102(2)(A).

In that same decision however, we decided that Betts did have a



      2
        While   the   general   requirements    of   a   disability
discrimination claim under the ADA and the Rehabilitation Act are
the same, the standard of causation is not.        29 U.S.C. § 794
plaintiffs must demonstrate that the discrimination occurred
“solely by reason of” their disability. 29 U.S.C. § 794(a). ADA
plaintiffs, on the other hand, need only demonstrate that their
disability played a motivating role in the discriminatory action.
See Baird, 192 F.3d at 468-70. Because Betts has failed to show
causation under the more lenient ADA standard, we need not dwell on
this distinction.

                                      7
perceived disability under 42 U.S.C. § 12102(2)(C) so that in order

to recover, Betts must prove that the University “mistakenly

believe[d] that [he] has a physical impairment that substantially

limits his ability to learn.”             Slip op. at 6 (alteration in

original). We also recited in that second appeal that our decision

was limited to whether or not Betts had a disability under the ADA

and that neither party had raised the issue of causation, defined

as “whether the University denied Betts benefits because of his

disability.”     Slip op. at 9 n.2.

     On remand, the district court addressed the causation issue,

not decided in our second decision.        It decided that Betts had not

demonstrated the causal link of his perceived disability to his

dismissal from the MAAP Postbacc program.            It held that Betts had

been dismissed “solely because Betts failed to meet the objective

GPA requirement.”    Betts v. Rector & Visitors of Univ. of Va., 198

F. Supp. 2d 787, 798 (W.D. Va. 2002).          The district court did not

decide the case on the basis of Eleventh Amendment immunity of the

University, rather, on the merits.

     From that order Betts appeals. In this appeal, the University

takes the position that the decision of the district court as to

causation   is   correct,   but   that    if   not   correct,   an   Eleventh

Amendment defense should be considered.

     The question of the application of the Eleventh Amendment was

raised in the district court, which did not decide the same.


                                      8
Instead, it held that it “need not decide the Eleventh Amendment

question, and instead can proceed to the merits.”           198 F. Supp. 2d

at 791.    That the district court was correct in that ruling is

illustrated by two recent decisions of the Supreme Court, Idaho v.

Coeur D’Alene Tribe of Idaho, 521 U.S. 261 (1997), and Wisconsin

Department of Corrections v. Schacht, 524 U.S. 381 (1998).            Coeur

D’Alene was a case in which the Indian tribe sued the State of

Idaho to ascertain the extent of the tribe’s ownership in the banks

and   submerged   lands   of   Lake   Coeur    D’Alene,    various   of   its

tributaries, and streams flowing from the lake.           The Court applied

the Eleventh Amendment, holding that the Eleventh Amendment barred

the suit in the federal court.            It held the State of Idaho was

entitled to rely on its Eleventh Amendment immunity and to insist

upon responding to the claims fo the tribe in the courts of that

State.    Important to this case is its reasoning:

      Rather, a State can waive its Eleventh Amendment
      protection and allow a federal court to hear and decide
      a case commenced or prosecuted against it.          The
      Amendment, in other words, enacts a sovereign immunity
      from suit, rather than a non-waivable limit on the
      federal judiciary’s subject matter jurisdiction.

521 U.S. 261, 267.

      Consistent with that reasoning is the Schacht case, which was

a case in which a dismissed prison guard sued the State of

Wisconsin Department of Corrections on account of his discharge

and, as well, several employees of the Department, both in their

personal and official capacities.           The action was brought in a

                                      9
state   court     of   Wisconsin,    and     because     Schacht     had   sued   for

deprivation of his liberty and property without due process of law,

in violation of the federal Constitution and laws, the defendants

removed the case to the federal court. The Court considered that

Schacht’s claims against the officials in their personal capacities

were not claims against the State of Wisconsin, rather against them

personally.       So the Eleventh Amendment defense asserted by the

State was permissible as to the Department and officials in their

official    capacities,      but    could    not    be    asserted    against     the

officials in their personal capacities.                  Despite this, the Court

held that the removal was permissible and that the district court

could hear the claims against the officials in their personal

capacities but could not hear the claims against the officials in

their   official       capacities   nor     against      the   Department.        Its

reasoning is much the same as in Coeur D’Alene:

     The Eleventh Amendment, however, does not automatically
     destroy original jurisdiction.    Rather, the Eleventh
     Amendment grants the State a legal power to assert a
     sovereign immunity defense should it choose to do so.
     The State can waive the defense. Nor need a court raise
     the defect on its own.    Unless the State raises the
     matter, a court can ignore it.

524 U.S. 381, 389 (citations omitted).

     Thus, we conclude, in accordance with Coeur D’Alene and

Schacht    that   the    district    court    was   within     its   authority     in

proceeding to the merits and in not deciding the Eleventh Amendment

question.


                                       10
                                             IV.

                                             A.

       We    finally    consider      whether      the   district      court    properly

awarded summary judgment to the University on causation grounds.

We review this issue de novo, construing the facts in the light

most favorable to Betts.             See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).           Even under the deferential summary judgment

standard, however, the record does not support Betts’ contention

that    his     disability        motivated        the    University’s         decision.

Furthermore, we believe that the University provided reasonable

accommodations         to    Betts    that    satisfied        applicable      statutory

mandates, whatever the nature of Betts’ disability and whether

actual or perceived.           In sum, because the record taken as a whole

could not lead a rational trier of fact to find for Betts on

causation, or failure to accommodate, no genuine issue for trial

existed and summary judgment was appropriate. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       As discussed above, ADA plaintiffs must demonstrate that they

are    (1)    “disabled”       for    purposes     of    the    ADA,   (2)     otherwise

qualified, and (3) discriminated against on the basis of their

disability.      Baird, 192 F.3d at 467 (citing Doe, 50 F.3d at 1265);

see also 42 U.S.C. § 12132 (prohibiting discrimination “by reason

of” disability).            In No. 97-1850, our first opinion, we held that

Betts was otherwise qualified, and in No. 00-2305, we held that he


                                             11
was regarded as disabled under the ADA. As Betts now acknowledges,

only the causation prong of Baird has not yet been decided by this

court.     Br. of Appellant at 12 (“This brings the analysis to the

third and final element of an ADA claim, causation.”).

      It is not even claimed that there is evidence in this case of

any intent or motivation on the University’s part to discriminate

against    Betts    because    of    his    perceived        disability.      To   the

contrary, the record demonstrates that the University dismissed

Betts    because   he   did    not   meet       the   MAAP    Postbacc’s    objective

performance standards.         For example, the deposition testimony of

Dr.   Benjamin     Sturgill,    chairman        of    the    Promotions    Committee,

addressed the specific issue of what the Committee considered in

its evaluation:

      Q:      All right.    And that was the reason the
              committee decided not to allow him to continue
              in the program, that his cumulative annual
              grade point average was below a 2.75?

      A:      I think that is a fair assessment of that
              decision, yes.

      Q:      Okay. And that was the only criteria that he
              hadn’t met. There weren’t other criteria that
              he hadn’t met?

      A:      That’s correct.

      * * *

      A:      We only looked at his grades.

      Q:      And when you say his grades, you’re talking
              about his overall grades for that entire
              semester?


                                           12
     A:   Yes.

JA 107-08, 112. The other evidence confirms the objectivity of the

University’s decision.   See, for example, JA 120-127 (Aff. of Dir.

of Admissions Beth Bailey); and JA 113-114, a part of the testimony

of Dr. Robert Carey, Dean of the Medical College, as to how he

decided Betts’ appeal from the Committee decision:

     Q:   That’s fine. In making your June 10 decision
          to uphold the decision of the committee
          dismissing him from the program, did you take
          into account the fact that his academic
          performance had significantly improved after
          he had received accommodations --

     A:   Yes.

     Q:   -- sometime in April of 1996?

     A:   Yes. I have that knowledge, and I did take
          that into account in my decision.

     Q:   Okay. How did that factor into your
          decision?

     A:   I think it was a matter of trying to make a
          decision about whether he was qualified to
          enter medical school with the information that
          we had at hand at that time, including the
          results of those examinations which occurred
          after accommodation.     And my decision was
          based on the bulk of the evidence as to
          whether he was qualified or not and was really
          based on the bulk of the evidence as to
          whether he was qualified or not and was really
          based on the fact that we had only a few
          examinations in which he had done well during
          accommodation as compared to a very lengthy
          track record during that year of lack of
          success and even beyond that, his academic
          record before he came into the MAAP program,
          although that was a minor factor.



                                13
            I think the major factor was he had gone
            through the year, he had not achieved the
            academic record minimum that we had required,
            and that with the amount of time and effort
            that went into that part of it as compared to
            the few exams that we had at the end, I just
            didn’t feel that the bulk of the evidence was
            there that he could -- that he was qualified
            to enter into and be successful.

      At   this    point,    we   note    especially    the   GUIDELINES   FOR

IMPLEMENTATION OF POST-BACC PROGRAM:

      3. If at the end of the second semester of the post-bacc
      academic year the GPA for either semester falls below the
      standard, the student will be evaluated by the post-bacc
      promotions committee who will advise the admissions
      office as to whether the student should be allowed to
      continue in the program.

      Confronted with the evidence from the faculty members and the

Admissions officer, which is supported by Betts’ grades, which we

do not individually enumerate, Betts argues that the University’s

decision had the effect of discriminating against him on the basis

of his perceived disability.

      In light of its well-founded and ADA-benign concerns about

Betts’ academic record, the end of the MAPP Postbacc program and

Betts’ imminent matriculation in the medical school, we think that

the   University    had     two   choices:    ignore    years   of   objective

evidence, within the MAPP Postbacc program and without, and allow

Betts to matriculate based solely on good grades on five tests

taken (with double-time) over 18 days; or rely on Betts’ entire

academic record, particularly his performance in the MAAP Postbacc

program, and render its academic judgment.             Betts’ argument would

                                         14
preclude the Committee from considering, much less choosing, the

latter option. We decline to limit the faculty’s academic judgment

in this fashion.   “Courts must also give deference to professional

academic judgments when evaluating the reasonable accommodation

requirement.”   Kaltenberger v. Ohio Coll. of Podiatric Med., 162

F.3d 432, 436 (6th Cir. 1998).



                                 B.

     In addition to lack of causation, we affirm the judgment of

the district court on the alternate ground that the University

provided Betts with the reasonable accommodation required by the

ADA and the Rehabilitation Act, regardless of the nature of his

disability.   Indeed, a listing of the University’s accommodations

requires our conclusion:

     1.   Placing Betts on the Alternate List rather than rejecting

outright his application;

     2.   Offering Betts admission into the MAPP Postbacc program;

     3.   Allowing Betts to remain in the MAAP Postbacc program

after his fall semester GPA of 2.2 fell below 2.75 and after he had

earned a grade below a C;

     4.   Initiating Betts’ testing for a learning disability, and

allowing Betts to stay in the MAAP program, one reason being that

testing could be had at no cost to Betts;




                                 15
     5.   Providing Betts with individualized help from Learning

Needs Center tutors and staff during the spring semester;

     6.    Granting Betts regular meetings with a faculty adviser

during the spring semester;

     7.    Allowing Betts double-time on the five exams from April

12 to April 30, 1996; and

     8.    Offering Betts even another admission to the medical

school in the matriculating class of 1997, contingent upon the

completion of another year of, and improved, course work and

improved MCAT scores.

     Instead of accepting the last offer, Betts brought this suit

three days thereafter.

     It is true, of course, that the first two accommodations

listed above were put in place before any formal indication of

Betts’ learning impairment (or perception of disability) surfaced.

But the other six accommodations, particularly the University’s

initiating and insistence on testing for Betts and, at the same

time, allowing him to remain in the program despite his fall-

semester grades, at least partly to allow him to obtain testing at

no personal cost, represented the University’s ongoing and more-

than-reasonable efforts to help Betts attain admission to the

medical school despite his academic troubles.

     We   are   especially   persuaded   by   the   University’s   final

accommodation to Betts, which demonstrated its stated desire to


                                  16
give    Betts     more    time   to    demonstrate       his   capabilities   with

accommodation.         The district court, in 967 F. Supp. 882, 885 n.1,

refused to consider this accommodation because it determined it to

be a settlement offer under Fed. R. Evid. 408. We are of opinion

that when, as here, the question to be decided is whether an offer

of accommodation has been made, the fact that the same offer may be

considered one of settlement or accommodation does not make it

inadmissible.       So we consider the offer.

       The only conclusion permitted by the record is that the

University wanted Betts to matriculate right up until the end.

Indeed, we find it noteworthy that not once (until his dismissal)

did the University deny Betts any help or accommodation he sought.

But once the University decided to discontinue the MAAP Postbacc

program in its same form (a decision unrelated to Betts), it simply

ran out of ways to accommodate Betts short of suspending its

academic judgment. Even at that late point, the University devised

a last way to accommodate Betts consistent with its principles.

       We need not here demarcate what accommodations are reasonable

in    every     case     involving    the    ADA   or    academic   institutions.

Considering these facts, we hold simply that the University made

all    reasonable      accommodations       consistent    with   its   fundamental

educational judgment, its duty to the medical profession, and its

obligation to the Commonwealth.              See Wynne v. Tufts Univ. Sch. of

Med., 932 F.2d 19, 26 (1st Cir. 1991) (en banc) (“[T]he issue of


                                            17
whether the facts alleged by a university support its claim that it

has met its duty of reasonable accommodation will be a purely legal

one.    Only if essential facts were genuinely disputed or if there

were significantly probative evidence of bad faith or pretext would

further     fact   finding   be   necessary.”)      (citation   and    quotation

omitted).     There is no bad faith or pretext on the part of the

University in this case.

       In reaching this fact-bound conclusion, we emphasize that we

do not decide one issue briefed by the parties and reached by the

district court.      In No. 00-2305 we held that Betts was not actually

disabled but was regarded as disabled. The parties dispute whether

the ADA’s accommodation requirement applies with equal force to a

“regarded as” disabled plaintiff.               The district court suggested

that it does not.

       This question has not been decided by this circuit, and our

sister circuits are divided on the issue.                   Compare Weber v.

Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999), cert. denied,

528 U.S. 794 (2000) and Shannon v. New York City Transit Auth., 332

F.3d 95, 104 n.3 (2d Cir. 2003) (“It is not at all clear that a

reasonable accommodation can ever be required in a ‘regarded as’

case (such as this one) in which it is undisputed that the

plaintiff was not, in fact, disabled.”) with Katz v. City Metal

Co.,   87   F.3d   26,   33-34    (1st   Cir.    1996)   (stating     that   “Katz

established that City Metal regarded him as having an impairment


                                         18
constituting a disability under section 12102(2)(c) of the Act”).

We think that the extensive accommodations actually offered by the

University are sufficient under either theory, so we express no

opinion on that question.



                               V.

     Because the record as a whole demonstrates that a rational

trier of fact could not find for Betts on the causation element of

his claim, and neither could a fact finder find that Betts was not

reasonably accommodated in all events, the district court properly

granted the University’s motion for summary judgment.

     The judgment of the district court is accordingly



                                                         AFFIRMED.




                               19
