                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                     November 14, 2014

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 EMILY MCCULLEY,

          Plaintiff - Appellant,

 v.                                                         No. 13-3299
                                                   (D.C. No. 2:12-CV-02587-JTM)
 THE UNIVERSITY OF KANSAS                                     (D. Kan.)
 SCHOOL OF MEDICINE; STEVEN
 STITES, M.D.,

          Defendants - Appellees.


                                   ORDER AND JUDGMENT*


Before KELLY, LUCERO, and MATHESON, Circuit Judges.


      Emily McCulley is an accomplished young woman suffering from a serious

disability who filed suit against the University of Kansas School of Medicine

(“KUSOM”) after it rescinded her admission. The district court granted summary

judgment to KUSOM, concluding that accommodating McCulley’s disability would

require it to make substantial changes to its educational program that go beyond what the


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
Americans with Disabilities Act (“ADA”) requires. Although we sympathize with

McCulley’s desire to pursue her goals, exercising jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

                                              I

       Emily McCulley suffers from Type III spinal muscular atrophy, which necessitates

use of a wheelchair for mobility and limits her arm strength. In 2011, she was admitted

to KUSOM. The school’s accreditation requires that it articulate “technical standards”

which all admitted students must meet. This includes a Motor Technical Standard, which

mandates that students “be physically able to . . . carry out diagnostic procedures” and

“provide general care and emergency treatment to patients,” including CPR, opening

obstructed airways, and “obstetrical maneuvers.”

       Shortly after her admission, KUSOM sent McCulley a form asking her to describe

any accommodations she might need. She returned the form in February 2012, and met

with various KUSOM staff to discuss her needs in March. After the meeting, McCulley

provided a more detailed explanation of her requested accommodations. KUSOM staff

consulted with the school’s clinical faculty, who provided a list of physical requirements

for their clinical training. KUSOM sent McCulley this list of requirements in May 2012.

The school requested that she give the list to her physician, Scott Meyers, so he could

indicate specific accommodations needed for each physical requirement. In July, Meyers

completed the form, indicating that McCulley would need a staff person to assist her with

lifting and positioning patients, stabilizing elderly patients, and performing basic life
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support.

       KUSOM clinical faculty reviewed the requested accommodations. Based on their

recommendations, KUSOM Interim Dean Steven Stites concluded that McCulley could

not meet KUSOM’s Motor Technical Standard, and rescinded her admission.

       On September 5, 2012, McCulley filed a complaint asserting that the ADA and

Rehabilitation Act entitled her to compensatory damages and an order that her admission

to KUSOM be reinstated. The district court granted summary judgment in KUSOM’s

favor. McCulley now appeals to this court.

                                             II

       We review the district court’s grant of summary judgment de novo. Bohn v. Park

City Grp., 94 F.3d 1457, 1460 (10th Cir. 1996). Summary judgment is appropriate if

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “We view the summary judgment evidence in

the light most favorable to the non-movant, applying the same standard as the district

court.” Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012).

                                             A

       We apply the same analysis to claims brought under the ADA and the

Rehabilitation Act. See Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 725-

26 (10th Cir. 2011). Although these statutes sometimes mandate accommodations,

public entities are not required to modify their programs to accommodate a person with a

disability if they “can demonstrate that making the modifications would fundamentally
                                             -3-
alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7). To fit

within this exception, an institution must prove that the requested modifications would

fundamentally alter the nature of its program. Fisher v. Okla. Health Care Auth., 335

F.3d 1175, 1181 (10th Cir. 2003). The Supreme Court has held that requiring a nursing

school to provide a staff person to help a hearing-impaired student would meet this

standard. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 404 (1979). Last year, we concluded

that “[c]ompelling an educational institution to change its requirements for advancement

through its medical school program would represent a substantial, rather than a

reasonable accommodation, because it would fundamentally alter the nature of the

educational services and program it provides.” Cunningham v. Univ. of N.M. Bd. of

Regents, 531 F. App’x 909, 920 (10th Cir. 2013) (unpublished) (citations and quotations

omitted). In academic matters, we often defer in substantial part to the professional

judgment of educational institutions. See Regents of the Univ. of Mich. v. Ewing, 474

U.S. 214, 225 (1985) (deferring to university in a due process context).

       McCulley claims her requested accommodations would not fundamentally alter

the nature of KUSOM’s program. But McCulley does not successfully rebut the

defendants’ argument that providing a staff surrogate to lift patients, administer basic life

support, and perform other tasks for McCulley would render her an observer. As in

Davis, having a staff member interact with patients on McCulley’s behalf would

fundamentally alter the nature of her medical education, which trains her to engage with

patients, often in emergency situations where assistance is unavailable. And just as the
                                             -4-
medical school in Cunningham was asked to change requirements related to its

graduation standards, McCulley asks KUSOM to change its Motor Technical Standards,

which are related to its accreditation.

       Although McCulley does not intend to pursue a physically demanding specialty,

she must nevertheless meet KUSOM’s Motor Technical Standards because KUSOM uses

a broad, undifferentiated medical curriculum that prepares students to serve as physicians

in a wide range of practice areas. The ADA does not authorize us to make sweeping

revisions to the content of medical school curricula. Moreover, the clinical procedures

that McCulley seeks to have staff members perform on her behalf are not KUSOM’s

arbitrary constructs. They are required as part of the United States Medical Licensure

Examination.

       Because we agree with the district court that the defendants have carried their

burden to show that McCulley’s request would constitute a fundamental alteration within

the meaning of 28 C.F.R. § 35.130, we do not need to reach the question of whether

McCulley is a “qualified individual” within the meaning of the ADA.

                                               B

       “To recover compensatory damages under § 504 [of the Rehabilitation Act], a

plaintiff must establish that an agency’s discrimination was intentional.” Barber ex rel.

Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). “[I]ntentional

discrimination can be inferred from a defendant’s deliberate indifference to the strong

likelihood that pursuit of its questioned policies will likely result in a violation of
                                              -5-
federally protected rights.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th

Cir. 1999).

      McCulley argues that KUSOM intentionally discriminated against her on the basis

of her disability when it rescinded her admission. But as we held above, KUSOM was

permitted to refuse to fundamentally alter its program. Further, even had McCulley

proven that her requested accommodations were reasonable and would not fundamentally

alter the program, KUSOM was hardly indifferent to McCulley’s need for

accommodations. It engaged in an iterative process with her and allowed her ample

opportunity to request accommodations and demonstrate their feasibility. Compensatory

damages are therefore inappropriate.

                                           III

      Our disposition should not be read as holding that medical schools cannot

reasonably admit McCulley or other students with similar disabilities. We are impressed

by McCulley’s achievements, and we hope that—regardless of whether she ultimately

attends medical school—she is able to employ her passion and skills in the service of

those in need. Cf. Davis, 442 U.S. at 414 (“One may admire respondent’s desire and

determination to overcome her handicap, and there well may be various other types of

service for which she can qualify.”). However, requiring KUSOM to admit McCulley

and provide her the accommodations she requested would alter its educational program

over and above what the ADA and Rehabilitation Act require.


                                           -6-
For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              Entered for the Court


                                              Carlos F. Lucero
                                              Circuit Judge




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