Sparkes v. Norwich University, No. 484-9-01 Wncv (Katz, J., June 7,
2005)


[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is
not guaranteed.]



STATE OF VERMONT                                         SUPERIOR COURT
Washington County, ss.:                           Docket No. 484-9-01 Wncv



SPARKES


v.


NORWICH UNIVERSITY



                            FINDINGS OF FACT,
                         CONCLUSIONS OF LAW,
                        AND NOTICE OF DECISION



        On the basis of the evidence presented at trial, the following decision
is announced.
                           FINDINGS OF FACT


       1. Plaintiff Jeffrey Sparkes is an Ontario resident who applied and
was admitted as a student to Norwich University. Cynthia and Roland
Sparkes are his parents, who paid approximately $30,000 to Norwich in
tuition and fees. Norwich is an institution which receives federal funding.


       2. Jeff Sparkes attended Norwich, as an undergraduate, for four
academic years, the last semester having been spent at Buckinghamshire
College, England as part of a Norwich-sponsored study-abroad program.
He was an accounting major. Through the four years, Jeff=s performance at
Norwich was mediocre, at best. His grades slipped down into the Ds and
Cs, and some courses were failed. At one point, he was suspended from
participation in rugby. As a very general matter, he did better in the area of
accounting and business than in English.


       3. As an accounting major, he had certain requirements for
graduation. Two final required accounting courses turned out not to be
available at Buckinghamshire, so Jeff found himself at the end of four years
not having completed the requirements for graduation. To resolve that
problem, his mother, Cynthia, contacted Professor Murtaugh, Jeff=s adviser.
Although Murtaugh returned her call in June, he did not respond to letters
she mailed to him regarding finding the two required courses. It is not at all
clear why he failed to respond, although the circumstances suggest it may
have been because the letters were sent during the summer recess while
Murtaugh may have been off campus.


       4. Jeff did, however, learn that the courses (Cost Accounting and
Auditing) were available from Nipissing University, an Ontario institution.
Norwich indicated it would accept credits from Nipissing for the stated
courses. Jeff attended Nipissing, but failed the first semester, dropped out,
and still did not have the courses required for the Norwich degree.


       5. It was planned by the family that Jeff would return to Norwich for
the Fall 2000 semester to complete the remaining requirements. That would




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have been the start of the sixth academic year since matriculating at
Norwich. In August, however, after the unsuccessful stint at Nipissing, Jeff
broke down and made clear to his parents that he would not return to
Norwich–AI can=t go any more.@ The words Abroke down@ are Plaintiffs=,
but we have little doubt that it was an emotional moment. Jeff was clearly
distraught at the prospect of returning to Norwich, where he still feels that
his reading problems made him appear inept in classroom situations.


       6. Being disappointed by this turn of events and the failure to
complete college degree requirements, the Sparkes family began to ask
why. This led to an evaluation of Jeff, which revealed that he is seriously
dyslexic. A report was completed by August 22, 2000. Its conclusions
include the following:


              The prognosis for successful intervention to assist
       people with dyslexia varies according to the nature of the
       dyslexia and its severity. In general, more severe and
       complex forms of dyslexia will require longer intervention
       programs. Intervention programs for adults also require a
       longer period of therapy. Although intervention programs
       will offer assistance to overcome the handicapping
       consequences of the disability, dyslexia cannot be cured.
       Individuals with dyslexia will have a lifelong difficulty with
       language-based tasks. Because of the severity of Jeffrey=s
       dyslexia, an exemption for second language requirement is
       recommended.



                                       4
       7. Such a conclusion is quite consistent with Jeff’s long-term failure
to perform well in school, particularly in English, reading, and related
subjects. Indeed, that poor performance stretches back to his first grade
performance, which had led the first grade teacher to recommend against
promotion to second grade. That recommendation was overruled by Jeff=s
parents. At approximately six years of age, the parents had Jeff seen by a
psychologist for evaluation. It is not clear what follow-up ever was done
regarding that person=s recommendations. Not only were grades
consistently poor in these subjects, but his standard test scores in them were
poor, and consistently below his performance and mathematics scores on
such tests. This disparity extended to the American College Testing (ACT)
scores, which were sent to Norwich as part of its admissions process, albeit
after the positive admissions decision already had been reached and
communicated to Jeff. Along with all his fellow 1995 freshmen, Jeff was
administered a Nelson-Denny standardized test, or at least part of it, but his
comprehension score on that test, by itself, did not Ared flag@ a learning
disability. Again, however, it was below the math score on that same test.


       8. Mrs. Sparkes sent the Canadian dyslexia evaluation to Norwich,
where it was routed to Ms. Gills, the head of Norwich=s Learning Center.
She reviewed the evaluation and communicated to the Sparkes that it was
insufficient because it lacked a proper diagnosis. In particular, she noted
that there was a request to drop a required French course, but that such was
not supported by a clear and specific diagnosis directed to any impediment
that would be imposed by studying French. The Sparkes had further




                                       5
evaluation done in Ontario and sent to Ms. Gills a second evaluation report.
This evaluation recommended that Jeff be exempted from taking French
and that he be given extra time to complete written reports, spell-checking
programs, mentors to aid with such items as spell-checking, and Atemplates@
for written reports.


       9. There is no evidence supporting a finding, and we are not
persuaded, that Jeff Sparkes would have returned to Norwich in 2001, for
what would have been his sixth year of college, no matter what
accommodations might have been made.


       10. There is also no evidence supporting a finding that Jeff needed
accommodation to complete the final two Accounting courses at Norwich.
The credible evidence suggests that he did quite well in Accounting,
ranking, for example, maybe in the top third of Professor Rotondi=s classes.
Although Jeff did very poorly at the accounting courses at Nipissing, after
leaving Norwich, it is clear that his psychological state by that time had
become very negative. This seems beyond doubt, given his graphic
testimony. He was, by then, consumed with anger and frustration.


       11. Norwich has a Learning Support Center to assist students with
learning difficulties. Jeff knew of this center and knew it was located in the
Library. He nevertheless long delayed going to the center, saying he could
not find it in the Library. He never asked anyone in that structure Awhere=s
the Learning Center?@ When he finally did find and enter the Center, while
matriculated, he was met by a receptionist or secretary. He asked that



                                       6
person to see someone for assistance in learning. She responded that before
seeing anyone he would have to fill out the prescribed form. She gave him
a copy. Jeff placed the copy with his things, brought it back to his room,
and either lost or forgot it. From his point of view, it was just one more
printed page, a printed form, relatively indistinguishable from all others.
He never filled out the form, never spoke with anyone at the Learning
Center, and continued at Norwich.


       12. We are not persuaded that providing Jeff the kinds of support
suggested in the August 2000 dyslexia evaluation would have made a
difference. He did and apparently continues to suffer from a difficult
disability. In the years since leaving Norwich, roughly ages 25-30, a time in
which Jeff has clearly been a mature adult, he has not overcome the
difficulties. If his family did not provide the support indicated necessary
back in the first grade; if Jeff never followed through with Norwich’s
Learning Center, as by even mailing the demanded form to his mother to fill
out; if Jeff has found spell-checkers more confusing than helpful, as he has
made clear; what is the court=s basis now for making the factual inference
that he would then have used all the aids recommended, if supplied? It is
tragic that a talented person such as Jeff saw his problem ignored for as
long as it was, starting in the first grade. But it is speculative to think that
the 25 year old Jeff of 2000, having the angry attitude toward returning to
the classroom that he so obviously did, simply would have swallowed that
attitude and accepted the accommodations had they been supplied by
Norwich, and then finished the two or three remaining courses necessary for
a degree.



                                        7
       13. Even today, given the perspective and maturity of five additional
years, Jeff firmly rejects the kinds of assistance recommended in that
Canadian Dyslexia report. He does not want spell-checkers. He was never
asked about Atemplates@ or thesauruses. But given his antipathy to the
world of words, in which he becomes afraid and confused in a library,
report templates seem an unpropitious and unpersuasive aid. Instead,
Sparkes testified he wants Acorrespondence courses@ to be offered him by
Norwich, for the two accounting courses. He wants the degree to be
awarded. The fact that Norwich does not offer those courses in such a form
seems irrelevant to him. We will not engage in the speculation necessary to
make the finding that correspondence courses, now or five years ago, would
permit plaintiff to successfully complete the two remaining accounting
courses. At Norwich, with accounting courses, he had generally done well
in the traditional class context. The real reason correspondence courses are
now on the horizon is that Sparkes refuses to return to campus. Hence their
desirability would seem to flow more from the flexibility to remain off
campus, rather than the need for accommodation.


       14. Jeff now operates a small business with a partner. They have
two pizza shops, at locations somewhat distant from each other. The shops
have had some difficulties unrelated to this litigation of Jeff’s dyslexia, but
are continuing after two years. They employ more than fifteen workers, in
addition to delivery drivers. They are not yet producing much income for
Jeff, but their continued operation after more than two years demonstrates




                                       8
that he has business ability. Because of the dyslexia, however, he never
takes down telephone orders and all books are kept by his mother.


       15. Jeff admitted on the stand that he is ill-suited to become an
accountant. He cannot deal with all the figures, looking for the mistakes of
others. Indeed, the books for his own small business, kept by his mother,
must be reproduced in large type on colored paper for him to be able to read
it. He did express an interest in becoming a ACMA,@ a Canadian term
apparently designating one with some level of accounting background, but
who is pursuing a management, rather than auditing, career path. There
was no evidence regarding requirements for a CMA designation, whether
Jeff would have the ability to meet those requirements, whether with some
reasonable accommodations or otherwise, or what CMAs make in the
Toronto area. No finding of likelihood of success as a CMA is supported
by the evidence.


                          CONCLUSIONS OF LAW


       16. Generally, the purpose of the Rehabilitation Act of 1973 is to
prohibit discrimination on the basis of disability in programs conducted by
Federal agencies, in programs receiving Federal financial assistance, in
Federal employment, and in the employment practices of Federal
contractors. 29 U.S.C. § 794.


       17. Section 504 of the Act, at issue here, states that no “qualified
individual with a disability in the United States . . . shall . . . be excluded



                                         9
from . . ., be denied the benefits of . . ., or be subjected to discrimination
under” any program or activity that receives Federal financial assistance, as
Norwich University does. 29 U.S.C. § 794(a). To establish a claim for a
violation of Section 504, a plaintiff must prove that he is disabled under the
Act, is otherwise qualified for the program from which he was excluded,
and was discriminated against on the basis of that disability. “Otherwise
qualified” connotes the ability to meet program requirements with
reasonable accommodations for the disability. Kaltenberger v. Ohio
College of Podiatric Medicine, 162 F.3d 432, 435 (6th Cir. 1998).


       18. Notice of the disability, though moot in the many cases where
the disability is obvious, is integral to such a claim. In cases of less than
obvious disabilities, such as here, a post-secondary academic institution
without reasonable notice cannot be said to have failed to reasonably
accommodate it.

                In the section 504 milieu, an academic institution can
       be expected to respond only to what it knows (or is chargeable
       with knowing). This means, as the Third Circuit has recently
       observed, that for a . . . school “to be liable under the
       Rehabilitation Act, [it] must know or be reasonably expected
       to know of [a student’s] handicap.” Nathanson v. Medical
       College of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991). A
       relevant aspect of this inquiry is whether the student ever put
       the . . . school on notice of his handicap by making “a
       sufficiently direct and specific request for special
       accommodations.” Id. at 1386. Thus, we must view the
       reasonableness of [the school’s] accommodations against the
       backdrop of what [the school] knew about [the student’s]
       needs while he was enrolled there.

                                        10
Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 795 (1st Cir. 1992)
(emphasis added). Norwich never had actual notice of Jeff’s disability at
any time during which he was enrolled there. The evaluation that first
formally revealed the dyslexia diagnosis was conducted after Jeff’s efforts
at Nipissing, when he had ceased taking classes at Norwich.


       19. Plaintiffs argue instead that the various symptoms that Jeff
suffered, and their academic effects, were sufficient alone to charge
Norwich with notice of the disability. However, those facts suggest only
consistently poor performance in English and reading-related courses, the
problem Jeff had endured his entire academic career, and not more. Though
Jeff at one point approached Norwich’s Learning Center for help, he did not
follow through by filling out the required form, or by requesting help in
filling out the form. Even if he had, merely filling out a form would not
have been sufficient to obligate Norwich to provide accommodations.
Norwich “was not obligated to provide accommodation until plaintiff had
provided a proper diagnosis . . . and requested specific accommodation.”
Kaltenberger, 162 F.3d at 437 (telling “an academic counselor at the
College that she thought she might have [a disability] simply did not impose
an obligation to offer accommodations”). That simply did not occur in this
case. We are not at all persuaded that some hostile environment at Norwich
burdened Jeff with insurmountable obstacles to making known his
disability. Plaintiffs have produced no cases – and we have found none –
suggesting that circumstances such as those present in this case could be
sufficient to trigger a postsecondary academic institution’s obligation to



                                      11
accommodate a disability. A post-secondary academic institution is not a
guarantor of its students’ academic success, and the discovery of all
impediments to it, including undiagnosed learning disabilities of which it
reasonably is unaware. In effect, plaintiffs seek to impose on Norwich a
burden or duty greater than mere accommodation--they would hold it liable
for failing to recognize and diagnose. We are aware of no law imposing
such a duty.


       20. We thus conclude that Plaintiffs have no basis for any damages
arising out of Jeff’s time at Norwich.


       21. Nevertheless, with the disability finally documented after the
end of Jeff’s academic career, Plaintiffs request that Norwich be required to
accommodate it by allowing Jeff to complete the final credits necessary for
graduation by waiving certain language requirements, and by allowing him
to take the remaining accounting classes by correspondence. Ignoring that
Jeff seeks this relief at a time when, so far as the court can tell, he no longer
is enrolled at Norwich University, still we find such relief unfounded. First,
Jeff does not need accommodations to complete accounting courses
successfully. Second, Norwich does not offer the classes Jeff seeks by
correspondence, and we are not persuaded that it would be reasonable to
provide them specially to him in that way. Third, even if Jeff’s disability
did affect his ability to complete these classes, no evidence suggests that the
correspondence nature of the request addresses the effects of the disability.
It would seem to exacerbate them by placing heavy emphasis on the skills
that are so problematic: reading, computer usage, etc. Correspondence



                                         12
courses would not accommodate the disability; they merely would allow
him to take the classes while not in residence, something not obviously
related to Jeff’s disability. Given his strongly voiced antipathy to computer
screen and difficulty with reading, correspondence courses seem an ill-
suited attempt to accommodate--to master material in the remaining
accounting courses. Plaintiffs concede that Norwich eventually offered
“accommodations regarding time allowances, report templates, spell
checkers, mentors, and foreign language substitution,” but that he dismissed
them as untimely and unhelpful. Plaintiffs’ Supplemental Memorandum of
Law 7 (filed May 25, 2005). Plaintiffs had the burden of making
sufficiently specific requests for accommodations. In these circumstances,
Norwich cannot be held accountable for the timing of efforts to
accommodate. Moreover, the rejected accommodations are the ones
recommended to the school with the diagnosis supplied by Jeff’s family.
There is no basis for any relief he now seeks.


       22. Plaintiffs’ breach of contract claim is so vague that the court
considers it waived. Plaintiffs allege without specification that Norwich
made “oral and written representations,” in the student handbook or
elsewhere, to the effect that Jeff “would not fall through the cracks.”
Plaintiffs’ Trial Memorandum 14 (filed May 3, 2005). As the court
understands it, they claim Norwich breached this promise by allowing Jeff
to fall through the cracks. This is really just a general objection to their
view of the quality of Jeff’s educational experience at Norwich. “Contract
claims that in fact attack the general quality of educational experiences




                                       13
provided to students have generally been rejected.” Cencor, Inc. v. Tolman,
868 P.2d 396, 399 (Colo. 1994).



                         NOTICE OF DECISION


      For the foregoing reasons, Defendant Norwich University is entitled
to judgment on the Sparkes’ claims. Counsel for Defendant to submit a
proposed form of judgment.




      Dated at Montpelier, Vermont, _______________________, 20__.




                                           __________________________
                                                                     Judge




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