UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT W. BETTS, II,
Plaintiff-Appellant,

v.
                                                                              No. 97-1850
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.
James H. Michael, Jr., Senior District Judge.
(CA-96-54-C)

Argued: January 26, 1998

Decided: September 22, 1999

Before ERVIN* and WILLIAMS, Circuit Judges,
and GOODWIN, United States District Judge for the
Southern District of West Virginia,
sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Judge Williams wrote the opinion, in which Judge Goodwin
joined. Judge Ervin wrote a separate opinion concurring in the judg-
ment.
_________________________________________________________________

*Judge Ervin participated in the consideration of this case but died
prior to the time the decision was filed. The decision is filed by a quorum
of the panel pursuant to 28 U.S.C. § 46(d).
COUNSEL

ARGUED: Dexter Brock Green, JONES & GREEN, Charlottesville,
Virginia, for Appellant. Richard Croswell Kast, Associate General
Counsel/Special Assistant Attorney General, Office of the General
Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia, for
Appellee. ON BRIEF: Paul J. Forch, General Counsel/Special Assis-
tant 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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Robert W. Betts appeals the district court's grant of summary judg-
ment to the Rector and Visitors of the University of Virginia (the Uni-
versity) on his claims brought under the Americans with Disabilities
Act (ADA), see 42 U.S.C.A. § 12101 et seq. (West 1995 & Supp.
1998), the Rehabilitation Act, see 29 U.S.C.A. § 701 et seq. (West
1999), the United States Constitution, see U.S. Const. amend. XIV,
and state contract law. With the exception of Betts's ADA and Reha-
bilitation Act claims, we affirm in all respects. As for those claims,
we agree with Betts that if double time on exams is a reasonable
accommodation, which we expressly do not decide here, Betts is able
to meet the essential eligibility requirements set forth by the Univer-
sity for admission to the University of Virginia School of Medicine
(the School of Medicine) through its now defunct Medical Academic
Advancement Post-Baccalaureate (MAAP) program and, therefore, is
a "qualified" individual for purposes of the ADA. Because the district
court assumed, without deciding, that Betts was disabled, we remand
for the district court to determine, in the first instance, whether Betts
is "disabled" under the ADA.

                    2
I.

In the spring of 1995, Betts applied for admission to the School of
Medicine and was placed on the waiting list. As an alternative to
remaining on the waiting list, Betts was offered (and accepted) admis-
sion into the University's MAAP program. MAAP was an intensive
one-year post-college academic program designed to prepare econom-
ically disadvantaged and minority students for admission to the
School of Medicine. In fact, the University guaranteed admission to
the School of Medicine to every MAAP participant who maintained
a minimum grade point average (GPA) of 2.75 per semester and
received no grade below a C.

Betts began the MAAP program in June of 1995. After the fall
semester, Betts had a GPA of 2.2 and had received a D- in physics.
Despite his failure to meet the minimum academic requirements of
the MAAP program, the MAAP Promotions Committee informed
Betts on January 16, 1996, that he would be allowed to remain in the
MAAP program, albeit on probation, for the spring semester. As a
condition of his probation, Betts was required (1) to meet with Dr.
Lynn Davis and Dr. Fred Diehl for instructions on which courses he
must take during the spring semester; (2) to arrange for tutoring; and
(3) to submit to testing at the University's Leaning Needs and Evalua-
tion Center (the LNEC). Moreover, under the terms of Betts's proba-
tion, a decision on whether he would ultimately be allowed to enter
the School of Medicine would be left to the judgment of the MAAP
Promotions Committee upon its review of his spring semester grades.

Pursuant to the agreement, Betts was examined by the LNEC,
which concluded that Betts had "high average verbal conceptual skills
and average intellectual ability," (J.A. at 431), but had "difficulties
with short-term memory [and] reading speed," (J.A. at 59.) The
LNEC recommended that Betts be given double time for all future
examinations. Upon receiving the recommendation, the University
immediately doubled the allotted time Betts was previously permitted
on exams.

During the spring semester, Betts took five exams with the
enlarged time. On these five exams, Betts attained a GPA of 3.5 and
received no grade below a B. Because several of Betts's spring

                    3
semester exams were taken prior to the double time modification,
however, Betts had only a GPA of 2.84 for the spring semester. As
a result, Betts had a cumulative GPA of 2.53 for the year.

On May 28, 1996, the MAAP Promotions Committee concluded
that Betts had failed to demonstrate that he was prepared to enter the
School of Medicine. That decision was based on Betts's "failure to
meet the overall GPA standard of 2.75 for the academic year." (J.A.
at 60.) As a consequence, Betts's offer of admission to the School of
Medicine was rescinded. Betts appealed to Robert M. Carey, the Dean
of the School of Medicine. On June 10, 1996, Betts was informed that
the Promotions Committee's decision would be upheld.

Shortly thereafter, the University offered Betts an opportunity to
appear before Dean Carey, Beth Bailey, the Admissions Director, and
Dr. Benjamin Surgill, the Associate Dean for Admissions. During that
meeting, Betts, with his counsel present, was offered another chance
to enter the School of Medicine on newly revised terms.1 Rather than
accepting the offer, Betts filed a complaint in the United States Dis-
trict Court for the Western District of Virginia, alleging that the Uni-
versity violated the ADA, see 42 U.S.C.A.§ 12101 et seq. (West
1995 & Supp. 1998), the Rehabilitation Act, see 29 U.S.C.A. § 701
et seq. (West 1999), the United States Constitution, see U.S. Const.
amend. XIV, and Virginia state contract law when it rescinded his
offer of admission to the School of Medicine. On August 12, 1996,
Betts also sought injunctive relief requiring the University to place
him into the 1996-1997 School of Medicine class and requiring the
University to reinstate his financial aid.2

On August 15, 1996, the district court conducted a hearing on
whether preliminary injunctive relief was warranted. On August 16,
_________________________________________________________________
1 Under the newly revised terms, Betts would be required to (1) take an
additional twelve credits of course work, in which he would be given
double time on exams; (2) retake the Medical College Aptitude Test
(MCAT), again, using double the time allotted other students; and (3)
attain a minimum GPA of 3.25, receive no grade lower than a C, and
achieve an average score of 8 on the MCAT, with no individual score
below 7.
2 Classes were scheduled to begin on August 19, 1996.

                    4
1996, the district court announced that it would not order Betts's
instatement into the 1996-1997 School of Medicine class. Following
a period of discovery, the parties filed cross-motions for summary
judgment. On May 27, 1997, the district court, after receiving briefing
on the motions, granted the University's motion and denied Betts's
cross-motion. In ruling on Betts's ADA and Rehabilitation Act
claims, the district court found that Betts was not a "qualified individ-
ual with a disability" because he was not able to meet the academic
standards required for admission to the School of Medicine. In ruling
on his Procedural and Substantive Due Process claims, the district
court specifically found that the University's decision was neither
arbitrary nor capricious. Finally, in rejecting Betts's breach of con-
tract claim, the district court held that the alleged contract between the
parties gave the University the sole discretion to determine whether
Betts was prepared for the School of Medicine. This appeal followed.

II.

On appeal, Betts argues that the district court erred in granting the
University summary judgment on each of his claims. We review de
novo the district court's decision to grant the University summary
judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196
(4th Cir. 1997). Summary judgment is appropriate only "if the plead-
ings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a
genuine issue of material fact, the evidence of the non-moving party
is to be believed and all justifiable inferences must be drawn in his
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

III.

Betts first challenges the district court's decision to grant the Uni-
versity summary judgment on his ADA claim.3 Absent direct evi-
_________________________________________________________________
3 Because Congress has directed that Title II of the ADA be interpreted
in a manner consistent with § 504 of the Rehabilitation Act, see 42
U.S.C.A. §§ 12134(b), 12201(a) (West 1995), we combine the analysis
of Betts's ADA and Rehabilitation Act claims, see Shafer v. Preston
Mem'l Hosp., 107 F.3d 274, 276 n.3 (4th Cir. 1997); Doe v. University
of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995); Tyndall
v. National Educ. Ctrs., Inc., 31 F.3d 209, 213 n.1 (4th Cir. 1994).

                     5
dence of discrimination, Betts must satisfy the three-step proof
scheme established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), to prevail on his ADA claim. First, Betts must establish,
by a preponderance of the evidence, a prima facie case of discrimina-
tion. See id. at 802. Once established, the burden shifts to the Univer-
sity to "rebut the presumption of discrimination by producing
evidence that the plaintiff was [denied participation in a program] . . .
for a legitimate, nondiscriminatory reason." Texas Dep't of Commu-
nity Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the University
meets its burden of production, the presumption raised by the prima
facie case is rebutted and "drops from the case," id. at 255 n.10, and
Betts bears the ultimate burden of proving that he has been the victim
of intentional discrimination, see St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 506-11 (1993).

The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disabil-
ity of such individual." 42 U.S.C.A. § 12112(a) (West 1995). There-
fore, to establish a prima facie case under the ADA, Betts must prove
(1) that he has a disability; (2) that he is an otherwise qualified indi-
vidual; and (3) that he was denied a benefit solely because of his dis-
ability. See Doe v. University of Maryland Med. Sys. Corp., 50 F.3d
1261, 1264-65 (4th Cir. 1995); see also Martinson v. Kinney Shoe
Corp., 104 F.3d 683, 686 (4th Cir. 1997); Williams v. Channel Master
Satellite Sys. Inc., 101 F.3d 346, 348 (4th Cir. 1996), cert. denied, 117
S. Ct. 1844 (1997).

In ruling on Betts's ADA claim, the district court assumed, without
deciding, that Betts was disabled. Nevertheless, the district court
found that Betts was not a "qualified individual with a disability"
because he was not able to meet the academic standards required for
admission to the School of Medicine. In particular, the district court
noted Betts's failure to maintain a GPA of 2.75 for the academic year.
Betts contends that the district court erred in finding that he was not
"otherwise qualified" to attend the School of Medicine because he
attained a GPA of 3.5 when his disability was reasonably accommo-
dated.

Under the ADA,

                     6
         The term "qualified individual with a disability" means an
         individual with a disability who, with or without reasonable
         modifications to rules, policies, or practices, . . . meets the
         essential eligibility requirements for the receipt of services
         or the participation in programs or activities provided by a
         public entity.

42 U.S.C.A. § 12131(2) (West 1995) (emphasis added). In other
words, an individual is "otherwise qualified" only if he is "able to
meet all of a program's requirements in spite of his handicap."
Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979).
A court is obligated, however, to consider the effect that any reason-
able accommodation may have on an individual's ability to meet all
of a program's requirements. See Alexander v. Choate, 469 U.S. 287,
301 (1985). Betts bears the burden of demonstrating that he is other-
wise qualified. See Tyndall v. National Educ. Ctrs., 31 F.3d 209, 213
(4th Cir. 1994).

Here, the essential eligibility requirements for admission to the
School of Medicine through participation in the MAAP program were
maintaining a minimum GPA of 2.75 per semester and receiving no
grade lower than a C. It is undisputed that during the fall semester
Betts did not have a minimum GPA of 2.75 and had one grade below
a C. During the spring semester, however, the University decided that
Betts should be allowed double time on his exams. On these exams,
Betts attained a GPA of 3.5 and received no grade below a B.

As noted above, in considering whether an individual is able to
meet the essential requirements for participation in a given program,
a court must also consider the effect that any reasonable accommoda-
tion may have on that individual's ability to meet all of a program's
requirements. Here, Betts contends, and the University adamantly
agrees, that allowing him double time on his exams was a reasonable
accommodation. Whatever doubts we may have concerning the rea-
sonableness of the accommodation in this case, which we do not
decide here, it is clear that when given double time on his exams,
Betts more than satisfies the essential eligibility requirements for
admission to the School of Medicine through participation in the
MAAP program. Because Betts is able, with accommodation, to meet

                    7
those essential requirements, he is a "qualified" individual for pur-
poses of the ADA. See Davis, 442 U.S. at 406.

Our holding today -- that Betts is otherwise qualified because he
is able to meet the essential eligibility requirements for admission to
the School of Medicine -- is limited to the narrow facts of this case.
Ordinarily, the determination to admit a student into a given academic
program requires the expert evaluation of numerous factors that are
not conducive to judicial decisionmaking. See, e.g., Board of Cura-
tors of Univ. of Mo. v. Horowitz, 435 U.S. 78, 92 (1978) (noting that
"Courts are particularly ill-equipped to evaluate academic perfor-
mance"). Here, however, Betts was guaranteed admission into the
School of Medicine if he maintained a minimum GPA of 2.75 and
received no grade lower than a C in the MAAP program. These spe-
cific (and readily ascertainable) requirements, coupled with the Uni-
versity's concession that allowing Betts double time on his exams was
a reasonable accommodation, present this Court with an academic
decision amenable to judicial review. In the end, therefore, our hold-
ing that Betts is able to meet the essential eligibility requirements for
admission to the School of Medicine turns on the unique facts of this
case: Betts's participation in the now defunct MAAP program and the
University's concession that allowing Betts double time on his exams
was a reasonable accommodation.

Although we conclude that the district court erred in finding that
Betts was not otherwise qualified, we note that Betts has not yet
established a prima facie case of discrimination under the ADA. In
ruling on the University's motion for summary judgment, the district
court assumed, without deciding, that Betts was disabled. To avoid
summary judgment, therefore, Betts must also demonstrate that he is,
in fact, disabled. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) ("[T]he plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of
proof at trial.").

As an initial matter, we note that an individual diagnosed with a
"learning disability" is not necessarily "disabled" for purposes of the
ADA. According to the ADA:

                     8
          The term "disability" means, with respect to an indi-
          vidual--

          (A) a physical or mental impairment that sub-
          stantially limits one or more of the major life
          activities of such individual;

          (B) a record of such an impairment; or

          (C) being regarded as having such an impair-
          ment.

42 U.S.C.A. § 12102(2) (West 1995). To qualify as having a disabil-
ity under subsection (A), Betts must first establish that he has a "phys-
ical or mental impairment." According to Dr. Robert Muller, although
Betts's I.Q. is in the superior range, difficulties with his short-term
memory and his reading speed prevent him from performing in the
superior range. In short, there is a medically diagnosed discrepancy
between Betts's intellectual capabilities and his performance.

Although the term "impairment" is not defined in the ADA,
Webster's defines the term as a "decrease in strength, value, amount,
or quality." Webster's II New Riverside University Dictionary 612
(1988); see also Webster's Third New International Dictionary 1131
(1986) (defining impairment as "deterioration" or "lessening"). Under
this definition, we have little difficulty concluding that Betts's inabil-
ity to perform up to his intellectual capabilities constitutes a mental
impairment. See Price v. National Bd. of Med. Examiners, 966 F.
Supp. 419, 424 (S.D. W. Va. 1997) (assuming that a reading disorder
is a mental impairment for purposes of the ADA). Indeed, many spe-
cific "learning disabilities," are impairments, rather than actual dis-
abilities, under the ADA. See, e.g., 28 C.F.R. § 35.104 (1998)
(defining mental impairment to include "specific learning disabili-
ties").

Next, Betts must establish that his learning disorder substantially
limits one or more of his major life activities. See 42 U.S.C.A.
§ 12102(2)(A). Although Betts may very well have a learning disor-
der that "substantially limits" his ability to attend medical school,

                     9
attending medical school is not a "major life activity." See
Runnebaum v. Nationsbank, 123 F.3d 156, 170 (4th Cir. 1997) (en
banc) (providing "that an activity qualifies under the statutory defini-
tion as one of the major life activities contemplated by the ADA if it
is relatively more significant or important than other life activities"),
overruled on other grounds by Bragdon v. Abbott, 118 S. Ct. 2196
(1998). Learning, in contrast, is considered one of the major life activ-
ities. See, e.g., 29 C.F.R. § 1630.2(i) (listing "major life activities" as
"caring for oneself, performing manual tasks, walking, seeing, hear-
ing, speaking, breathing, learning, and working" (emphasis added)).
Thus, whether Betts is disabled turns on whether his learning disorder
"substantially limits" his ability to learn.

The ADA does not define the term "substantially limits." When
Congress does not expressly define a statutory term or phrase, a court
should "normally construe it in accord with its ordinary or natural
meaning." Smith v. United States, 508 U.S. 223, 228 (1993). We have
previously noted that the ordinary or natural meaning of "substantially
limits" requires that the impairment significantly restrict the individu-
al's ability to perform a major life activity. See Runnebaum, 123 F.3d
at 167 (stating that "the impairment must be significant, not merely
trivial"); Forrisi v. Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986) (con-
cluding that "[t]he statutory language, requiring a substantial limita-
tion of a major life activity, emphasizes that the impairment must be
a significant one"). The EEOC, pursuant to its charge to issue regula-
tions to carry out Title I of the ADA, see 42 U.S.C.A. § 12116 (West
1995), has similarly defined the term. According to the EEOC, "sub-
stantially limits" means:

          (i) Unable to perform a major life activity that the average
          person in the general population can perform; or

          (ii) Significantly restricted as to the condition, manner or
          duration under which an individual can perform a particular
          major life activity as compared to the condition, manner, or
          duration under which the average person in the general pop-
          ulation can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1) (1998).

                     10
When the major life activity at issue is learning, therefore, an indi-
vidual is not disabled unless his ability to learn is significantly
restricted. An individual's ability to learn is significantly restricted if
it is limited in comparison to most people. See Price, 966 F. Supp. at
422 (concluding that the plaintiffs were not disabled because they
were "able to learn as well as or better than the average person in the
general population"). Thus, for Betts to establish that he is disabled
for purposes of the ADA, he must show that his learning disorder
restricts his ability to learn in comparison to the general population.
To explain this standard, the district court in Price gave the following
useful hypothetical:

          Student A has average intellectual capability and an impair-
          ment (dyslexia) that limits his ability to learn so that he can
          only learn as well as ten percent of the population. His abil-
          ity to learn is substantially impaired because it is limited in
          comparison to most people. Therefore, Student A has a dis-
          ability for purposes of the ADA. By contrast, Student B has
          superior intellectual capability, but her impairment (dys-
          lexia) limits her ability so that she can learn as well as the
          average person. Her dyslexia qualifies as an impairment.
          However, Student B's impairment does not substantially
          limit the major life function of learning, because it does not
          restrict her ability to learn as compared with most people.
          Therefore, Student B is not a person with a disability for
          purposes of the ADA.

Id. at 427.

It is clear that Betts has a history of scholastic achievement. For
example, in 1994, Betts was awarded Bachelor of Science degrees in
both Biology and Chemistry from North Carolina Wesleyan College.
Moreover, Betts's I.Q. places him in the 96th percentile. Indeed,
although Betts has some learning difficulty, the LNEC concluded that
Betts had average intellectual ability. As such, it appears that Betts's
learning disorder, i.e., his impairment, does not restrict his ability to
learn as compared with most people. Nevertheless, because the dis-
trict court assumed, without deciding, that Betts was disabled, the
record is not sufficiently developed for us to determine whether Betts
is best compared to Student A or Student B in the aforementioned

                     11
hypothetical. As a result, we remand for the district court to deter-
mine, in the first instance, whether Betts is disabled for purposes of
the ADA.4

IV.

Next, Betts argues that the University rescinded his offer of admis-
sion to the School of Medicine without providing any prior notice or
an opportunity to be heard. As a result, Betts contends that the Uni-
versity violated his right to procedural due process. Although Betts
was not present when the MAAP Promotions Committee decided to
rescind his offer of admission to the School of Medicine, "[t]he very
nature of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation." Board of Cura-
tors of Univ. of Mo. v. Horowitz, 435 U.S. 78, 102 (1978) (Marshall,
J., concurring in part and dissenting in part) (citing Cafeteria Workers
v. McElroy, 367 U.S. 886, 895 (1961)). We agree with the district
court that the requirements of due process were satisfied and that
Betts's due process attack on the validity of the University's proce-
dures must fail.

On May 28, 1996, the MAAP Promotions Committee met and
decided that Betts had failed to meet the overall GPA standard of 2.75
for the academic year and his offer of admission was rescinded.
Assuming, without deciding, that Betts had a protectable liberty or
property interest in the aforementioned meeting, see Henson v. Honor
Comm. of Univ. Va., 719 F.2d 69, 73 (4th Cir. 1983) (assuming the
existence of a liberty or property interest in a proceeding adjudicating
_________________________________________________________________

4 During oral argument, counsel for Betts argued that the University
conceded Betts's disability in district court. In contrast, counsel for the
University argued that its statements before the district court had more
to do with summary judgment strategy than with an express concession
of a necessary element on which Betts bore the burden of proving. Based
on the record before us, we believe it best to allow the district court to
decide whether the University has conceded that Betts's learning disor-
der constitutes a disability. Likewise, although we analyzed whether
Betts is disabled under 42 U.S.C.A. § 12102(2)(A), Betts may, on
remand, argue that he is disabled based upon the definitions contained in
either 42 U.S.C.A. § 12102(2)(B) or 42 U.S.C.A. § 12102(2)(C).

                    12
alleged honor code violations), we conclude that the procedural pro-
tections afforded him were sufficient under the Due Process Clause
of the Fourteenth Amendment. Where, as here, the challenged action
involves a subjective inquiry, the standard for evaluating whether
there has been a denial of procedural due process is substantially
relaxed. See Siu v. Johnson, 748 F.2d 238, 244-45 (4th Cir. 1984). In
such a case, an individual has received due process if the decision was
not arbitrary and capricious. See id. at 245. A decision is arbitrary and
capricious if, in the end, it did not "involve the exercise of profes-
sional judgment." Id.

Here, the MAAP Promotions Committee used its professional
judgment to set the GPA standard that Betts was required to attain for
admission to the School of Medicine. After reviewing the record in
this case, it is clear to us that the decision to rescind Betts's offer of
admission to the School of Medicine was based on the MAAP Promo-
tions Committee's application of that standard. Indeed, the Supreme
Court's reasoning in Horowitz, 435 U.S. at 78, compels our conclu-
sion that Betts's procedural due process rights were not violated. In
Horowitz, a medical student was denied permission to graduate after
several tiers of evaluators concluded that the student did not possess
the requisite skills to perform surgery. See id. at 82. Although the stu-
dent was never given a formal hearing to rebut the charges of incom-
petence, the Supreme Court nonetheless found no violation of due
process. See id. at 85. "A school," the Supreme Court noted, "is an
academic institution, not a courtroom or administrative hearing
room." Id. at 88. As a result, the Court held that a school, when mak-
ing an academic judgment, need not provide a student with all of the
procedural requirements that a court or an administrative agency must
provide a party.5 See id. at 89-90.
_________________________________________________________________
5 We disagree with Betts's contention that his offer of admission to the
School of Medicine was rescinded without any notice or an opportunity
to be heard. First, under the terms of Betts's probation, a decision on
whether he would be allowed to enter the School of Medicine was to be
made by the MAAP Promotions Committee upon its review of his spring
semester grades. Thus, while Betts may not have known that the MAAP
Promotions Committee was meeting on May 28, 1996, he was on notice
that such a meeting would be held. Second, although Betts was not pres-
ent at the May 28, 1996, meeting, he received the opportunity to appeal
the MAAP Promotions Committee's decision to Robert M. Carey, the
Dean of the School of Medicine. In fact, Betts received a hearing, with
his counsel present, before Dean Carey, Beth Bailey, the Admissions
Director, and Dr. Benjamin Surgill, the Associate Dean for Admissions.

                    13
V.

Betts also contends that the University dismissed him from the
MAAP program without ever knowing that he attained a GPA of 3.5
when allowed double time on his exams. As a result, Betts argues that
the University's decision to rescind his offer of admission to the
School of Medicine was arbitrary and capricious and, therefore, vio-
lated his right to substantive due process. Again, we disagree.

In Regents of Univ. of Mich. v. Ewing, 474 U.S. 214 (1985), the
Supreme Court held that substantive due process concerns are raised
only by a decision that is "such a substantial departure from accepted
academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment." Id. at
225. Absent such a departure, a court may not override an academic
decision. See id. As we stated in connection with Betts's procedural
due process claim, it is clear that the decision to rescind Betts's offer
of admission to the School of Medicine was based on the professional
judgment of the MAAP Promotions Committee that Betts was not
prepared for medical school. Thus, we may not override that decision.

VI.

Finally, Betts makes a state law breach of contract claim. Betts
contends that the University's offer to participate in the MAAP pro-
gram, coupled with his acceptance, created a binding contract
between the parties. Although Betts concedes that he failed to main-
tain at least a 2.75 GPA during the fall semester (and, therefore, that
the University would have been justified in rescinding the contract at
that time), he argues that by permitting him to continue in the MAAP
program for the spring semester, the University waived its require-
ment that he attain a 2.75 GPA during the fall semester. Because he
attained a GPA of 2.84 during the spring semester, Betts argues that
he satisfied the terms of the contract and, more importantly, that the
University violated the parties' contract by dismissing him from the
MAAP program.

Even assuming that the University waived its requirement that
Betts attain a 2.75 GPA during the fall semester, the University did
not breach its alleged contract with Betts when it denied him admis-

                     14
sion to the School of Medicine. Although the University permitted
Betts to take classes during the spring semester, it did so on the
express condition that it now retained the discretion to decide, based
on Betts's spring semester grades, whether Betts was prepared for the
School of Medicine. See Stanley's Cafeteria, Inc. v. Abramson, 306
S.E.2d 870, 873 (Va. 1983) (noting well-established rule that parties
may modify the terms of a contract). After reviewing Betts's spring
semester grades, the MAAP Promotions Committee concluded that
Betts failed to meet the overall GPA standard of 2.75 for the aca-
demic year. Accordingly, the University did not breach the alleged
contract by denying Betts admission to the School of Medicine. See
Averett v. Lipscombe, 76 Va. 404 (1882) (making purchaser's good-
faith satisfaction with the title a condition precedent to performance
under the contract was acceptable); Watts v. Holland, 11 S.E. 1015,
1016 (Va. 1890) (same); see also Kohler v. Leslie Hindman, Inc., 80
F.3d 1181 (7th Cir. 1996) (holding that a consignment agreement
allowing an auction house to rescind the sale of painting in its "sole
discretion" was analogous to a satisfaction agreement).

VII.

For the foregoing reasons, the decision of the district court is
affirmed in part and reversed in part.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

ERVIN, Circuit Judge, concurring in the judgment:

I vote to remand this case because the district court did not fully
consider whether Betts has demonstrated that with reasonable accom-
modations, he is a "qualified" individual for the purposes of the ADA.

As a general rule, I acknowledge the wisdom of judicial deference
to the admissions decisions of academic institutions, so long as the
institution in question demonstrates an actual attempt at reasonable
accomodation. See Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19,
25 (1st Cir. 1991). Yet in the instant case, I am troubled that the Uni-
versity offered Betts an accommodation in the form of double time on
examinations, but then made its admissions decision largely on the

                     15
basis of Betts' prior poor performance under standard testing condi-
tions.

Upon further review, the district court may well conclude that the
University did not act arbitrarily or capriciously when it denied Mr.
Betts admission to the medical school. Notwithstanding this possibil-
ity, the district court must explain why Betts, who met the grade point
average criterion of the MAAP on all of his double-time examina-
tions, was not a qualified individual under the ADA. In this regard I
note with interest the majority's conclusion that when given the
double-time accommodation, "Betts more than satisfies the essential
eligibility requirements for admission." Because Mr. Betts' status as
a "qualified" person was the only issue contested below, if the major-
ity is correct Betts' complaint should survive a motion for summary
judgment.

I strongly disagree with the majority's decision to remand this case
for further consideration of whether Mr. Betts is"disabled" under the
ADA. See 42 U.S.C.A. § 12102(2) (West 1995). Although disability
is a required element of the prima facie case in an ADA claim, the
University has plainly conceded this issue.

The district court proceeded on this very assumption, noting that
"[t]he parties agree that the [disability and denial of benefits] criteria
are satisfied." Betts v. The Rectors and Visitors of the Univ. of Va.,
No. 96-0054-C (W.D. Va. May 27, 1997) (unpublished memorandum
opinion). At no point during the proceedings below did the University
contest the issue of disability. The University then waived the issue
on appeal, stating unequivocally in its brief, "the University does not
contest Betts' allegation that he has a learning disability that meets
the definition of `disability' under the ADA . . . ."

Given the University's posture on appeal, the issue of disability is
waived and this Court may not consider it further. Whatever doubts
we might have about the wisdom of the University's legal strategy,
we may not step into the shoes of either party and re-litigate the case
in a manner more to our own liking. Our role is limited to consider-
ation of the issues properly before us.

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