                  IN THE SUPREME COURT OF IOWA
                                 No. 12–0924

                              Filed June 27, 2014


PALMER COLLEGE OF CHIROPRACTIC,

      Appellee,

vs.

DAVENPORT CIVIL RIGHTS COMMISSION and AARON CANNON,

      Appellants.


      Appeal from the Iowa District Court for Scott County, Gary D.

McKenrick, Judge.



      Chiropractic      school   sought   judicial   review   of   civil   rights

commission’s determination school had discriminated on the basis of

disability.     The district court reversed the decision of the civil rights

commission. REVERSED AND REMANDED WITH INSTRUCTIONS.



      Judith J. Morrell, Davenport, for appellant Davenport Civil Rights
Commission.

      Scott C. LaBarre and Susan Rockwood Kern of LaBarre Law

Offices, P.C., Denver, Colorado, and Alan O. Olson of Olson Law Office,

P.C., Des Moines, for appellant Aaron Cannon.



      Robert D. Lambert of Stanley, Lande & Hunter, P.C., Davenport,

for appellee.
                                    2

         Mary Kay Klimesh and Karen L. Stephenson of Seyfarth Shaw LLP,

Chicago, Illinois, and Amanda G. Jansen of Ahlers & Cooney, P.C., Des

Moines, for amicus curiae National University of Health Sciences.

         Debra L. Hulett and Katie L. Graham of Nyemaster Goode, P.C.,

Des Moines, for amicus curiae Logan College of Chiropractic.

         Meghan Sidhu, Baltimore, Maryland, and Alan O. Olson of Olson

Law Office, Des Moines, for amicus curiae National Federation of the

Blind.

         Thomas G. Abram of Vedder Price, P.C., Chicago, Illinois, and

Mark E. Weinhardt, William B. Ortman, and Donielle M. Shelton of

Weinhardt & Logan, P.C., Des Moines, for amicus curiae National Board

of Chiropractic Examiners.
                                    3

HECHT, Justice.

        A student requested a chiropractic school make accommodations

for his visual disability.    When the school denied the requested

accommodations, the student filed a complaint with the civil rights

commission in the community where the school is located.             The

commission found the school failed to comply with applicable federal and

state disability laws and granted the student relief. The school sought

judicial review, and the district court reversed the commission’s ruling.

Upon appellate review, we reverse the district court’s ruling and remand

to the district court for reinstatement of the commission’s final agency

action.

        I. Background Facts and Proceedings.

        Palmer College of Chiropractic (Palmer) is a chiropractic school

with campuses located in Iowa, Florida, and California. At its Davenport,

Iowa location, Palmer administers bachelor of science and doctor of

chiropractic programs.    Aaron Cannon applied to Palmer’s bachelor of

science program at its Davenport, Iowa location, in the early spring of

2004.

        Cannon had informed Palmer he was blind early in the application

process.    Palmer directed him to its contact person for students with

disabilities, and Cannon met with the representative that spring. At that

meeting, Cannon explained he had sometimes taken examinations with

the assistance of a sighted reader in the past, he planned on completing

the graduate program’s undergraduate prerequisites and matriculating

in the graduate program in March 2005, and he was in the process of

registering and exploring additional accommodations for his blindness

with the Iowa Department for the Blind (IDOB).              The Palmer

representative told Cannon she would discuss this information further
                                    4

with key representatives of Palmer.       She also revealed to Cannon,

however, that Palmer had in the summer of 2002 adopted certain

technical standards for admission to and graduation from its degree

programs.

      The technical standards adopted for each of Palmer’s three

campuses across the country require that degree candidates have

“sufficient use of vision, hearing, and somatic sensation necessary to

perform chiropractic and general physical examination, including the

procedures of inspection, palpation, auscultations, and the review of

radiographs as taught in the curriculum.”     Based on these standards,

the Palmer representative explained, Cannon would find it difficult, if not

impossible, to enter and complete Palmer’s graduate program.

      Despite the caution Palmer’s representative expressed in the spring

2004 meeting, Cannon was admitted to Palmer’s undergraduate program

a few months later. He was also provisionally admitted to the graduate

program, contingent on his successful completion of the required

undergraduate coursework—without, apparently, any further inquiry as

to if or how Cannon might satisfy Palmer’s technical standards. Cannon

enrolled in July 2004 and began coursework in the undergraduate

program.

      In August, shortly after enrolling, Cannon met again with Palmer’s

disability representative to discuss possible accommodations.          The

Palmer representative indicated she would arrange a meeting with

Palmer’s Disability Steering Committee in the next two weeks to further

discuss possibilities.   While waiting for that meeting to materialize,

Cannon sent the Palmer representative an email detailing his skills and

capabilities for dealing with certain visual challenges. He noted in the

email his familiarity with various adaptive technologies, including
                                         5

technologies for note taking and producing tactile versions of images and

diagrams, and his history of success in previous classes having

significant visual components.           Two trimesters later, Cannon had

successfully completed the graduate program’s required undergraduate

coursework, achieving a cumulative grade point average of 3.44 on a 4.0-

point scale.1

       As he neared completion of the undergraduate coursework, a

meeting with Palmer’s Disability Steering Committee was finally arranged

in February 2005. Cannon reiterated his interest in preparing for and

enrolling in the graduate program at the meeting.                    The steering

committee again expressed doubt Cannon would be able to complete the

program because Palmer’s technical standards required sufficient use of

vision.   Cannon suggested several possible accommodations for the

visual components of the curriculum, including a sighted reader and

modifications of certain practical examinations, while acknowledging he

could not yet anticipate each challenge that might present itself in the

graduate program.       The steering committee suggested these could not

constitute acceptable accommodations for certain diagnostic portions of

the curriculum and explained Cannon would therefore reach a “stoppage

point,” after which he would no longer be able to meet Palmer’s

requirements for advancement in the program. That point, the steering

committee advised, would occur at the beginning of the fifth semester—

the point at which students were slated to begin radiology and other

diagnostic coursework. Cannon proposed that a sighted assistant might



       1The  record reveals Cannon’s grade point average may have been negatively
affected by the fact he missed his anatomy final in the winter of 2005 to be with his
wife, who gave birth on the same day.
                                     6

communicate to him the pertinent visual information in these courses

enabling him to analyze it and to learn to make diagnoses accordingly.

      The steering committee expressed doubt as to the feasibility of

Cannon’s proposed accommodation, suggesting it would place too much

responsibility on the assistant. The committee thus repeated its position

that the beginning of the fifth semester would constitute the stoppage

point, but Cannon proposed they cross that bridge later after further

investigation. Given the committee’s apparent reliance on the recently

adopted   technical    standards    in   concluding   Cannon’s   proposed

accommodations were unacceptable, Cannon asked about the purpose of

the standards and whether they might be modifiable.        The committee

explained modification would compromise Palmer’s compliance with

standards promulgated by the Council on Chiropractic Education (CCE),

the national accreditation body.     The CCE standards, the committee

explained, were “not negotiable.”

      Cannon was undeterred and enrolled in the graduate program,

apparently without objection from Palmer, a few days later.       Cannon

believed with further investigation, he and Palmer could find an

accommodation that would allow him to continue in the program and

eventually graduate.    Two weeks after his meeting with the steering

committee, Cannon sent a letter to Palmer’s president, expressing his

frustration with the trajectory the meeting had taken.      In the letter,

Cannon noted he was aware of numerous blind individuals who had

become successful chiropractors in the past, including at least two who

had graduated from Palmer. In addition, Cannon explained IDOB had at

its disposal “a wealth of information about strategies and techniques” for

coping with some of the challenges Palmer foresaw and suggested Palmer
                                         7

should consult with IDOB before rejecting out of hand his requests and

suggestions for accommodation.

      Palmer responded to Cannon’s letter a month and a half later in

mid-April.   Palmer explained its adoption of technical standards was

consistent with the purposes of the Americans with Disabilities Act (ADA)

of 1990 and the earlier-existing Section 504 of the Rehabilitation Act

(Rehabilitation Act). Those laws proscribed discrimination on the basis

of disability, Palmer explained, but they did not require an institution to

provide accommodations or curricular modifications if they would

fundamentally     alter   the    institution’s   educational   program.      The

curricular modifications Palmer had granted to blind students in the

past, Palmer explained, would not satisfy its current technical standards,

and thus any similar modification now would constitute a fundamental

alteration of its new program as defined by the technical standards.

Nevertheless, Palmer explained, it would contact IDOB to inquire about

other possible accommodations.

      A   month     later,      two   Palmer     representatives   met    with   a

representative from IDOB.         Notes from the meeting indicate “no new

information” was presented—Palmer explained its technical standards

were necessary for accreditation and the accommodations proposed by

Cannon would not satisfy these standards.              The IDOB representative

pointed out a blind individual had recently graduated from medical

school in Wisconsin and the school had maintained its accreditation, but

the Palmer representatives declined to explore further the investigation

and accommodations the school had made. Instead, they stressed the

importance of their own technical standards and their concern about the

time, effort, and money Cannon had already expended and would

continue to expend despite their indications he would be unable to
                                           8

complete the program.            Although the IDOB representative noted the

meeting       “concluded   with     no    real   progress    made,”       the   Palmer

representatives stated they remained open to further guidance from the

IDOB.

       Cannon received a meeting report, summarizing the Palmer–IDOB

conversation,      from    the     IDOB     representative      shortly    thereafter.

Frustrated,     and   without      any    indication   Palmer     intended      further

investigation, Cannon filed a notice of withdrawal from the graduate

program a few weeks later in early June 2005, before completing final

coursework for his first trimester in the program. His grade report for

the incomplete trimester indicated two grades of “C,” five grades of “No

Credit,” and withdrawal from one class. Cannon later testified that prior

to withdrawal, he had been confident he would receive strong grades for

the term given his prior record at Palmer, but because he had withdrawn

before final examinations and therefore missed and received no credit for

them, he was left with the weak record on the report.2

       Cannon filed a complaint with the Davenport Civil Rights

Commission (commission) in July, contending Palmer had discriminated

against him on the basis of his disability in violation of the Davenport
Civil Rights Ordinance (DCRO), the Iowa Civil Rights Act (ICRA), and

federal antidiscrimination laws. After reviewing the facts and applicable

laws, the commission found probable cause existed to demonstrate

discrimination, and the matter came before the commission for public

hearing in February 2010. The two-day hearing featured testimony and

exhibits from Cannon, Cannon’s wife, three Palmer faculty members and

       2The record reveals Cannon’s withdrawal near the end of the trimester came too
late for Cannon to receive grades of “Incomplete.” He nevertheless chose to withdraw
and miss his final examinations, which resulted in the grades of “C” and “No Credit.”
                                        9

officials, and a blind graduate of Palmer who now works as a

chiropractor.

       A few months after the hearing, the commission hearing officer

issued a proposed order, finding Cannon had proved by a preponderance

Palmer had discriminated on the basis of his blindness and granting

proposed relief of damages equal to Cannon’s previous cost of

attendance, emotional distress damages, and attorney fees and costs.

Cannon      submitted    exceptions    to    the   proposed   order,   requesting

readmission with reasonable accommodation and an order enjoining

Palmer’s strict application of its technical standards to blind individuals.

Palmer submitted its own exceptions, requesting that the commission

reject the proposed order in its entirety, dismiss the complaint, and

assess costs to Cannon.

       The parties addressed their exceptions at oral argument before the

commission in August.         After deliberations at its next two closed

sessions, the commission issued a final order adopting the hearing

officer’s   proposed    conclusion    that    Cannon    had   proven    disability

discrimination by a preponderance of the evidence.             The commission

supplemented its final order with the injunctive readmission and

accommodation Cannon had requested.

       In support of its order, the commission set forth extensive findings

of fact and conclusions of law. More specifically, the commission found

Cannon was a person with a disability and “an otherwise qualified”

student under the relevant federal, state, and municipal code provisions;

he had requested specific accommodations for his blindness from Palmer

on multiple occasions; and Palmer had denied these requests and failed

to engage in the interactive investigative process required by federal and

state disability law. Further, the commission found, Cannon’s requested
                                     10

accommodations would not fundamentally alter Palmer’s curriculum,

because Palmer had previously graduated blind students from its Iowa

campus, Palmer’s California campus already waived certain vision-

specific competencies in its technical standards based on California

antidiscrimination   law,   Palmer    had     presented   no   evidence   its

accreditation had been compromised by accommodations similar to those

Cannon had requested or by the California competency waivers, and

Palmer had presented no evidence state licensing boards would exclude

blind individuals from practice.     Based on these factual findings, the

commission concluded Cannon was otherwise qualified to participate in

Palmer’s graduate program and was denied participation in the program

on the basis of his disability.      The commission therefore concluded

Palmer’s strict application of its technical standards to Cannon violated

the DCRO, ICRA, and the ADA.

      Palmer sought judicial review of the final order. The district court,

explaining it was reviewing the commission’s legal conclusions for errors

of law and the commission’s factual findings for substantial evidence,

reversed the commission’s order.          Without explicitly suggesting the

commission’s factual findings were unsupported by substantial evidence,

the district court determined the commission had failed, as a matter of

law, to give appropriate deference to Palmer’s identification of its

curricular requirements, and therefore concluded substantial evidence

supported Palmer’s claims that Cannon’s suggested accommodation was

unreasonable and would constitute a fundamental alteration of the

Palmer curriculum.

      Cannon appealed the district court decision and we retained the

appeal.
                                    11

      II. Scope and Standards of Review.

      Our general assembly has directed that final decisions of

municipal civil rights commissions shall be reviewable to the same extent

as final decisions of the Iowa Civil Rights Commission (ICRC). See Iowa

Code § 216.19 (2013). We review decisions of the ICRC according to the

standards delineated in Iowa’s Administrative Procedure Act, set forth in

chapter 17A of the Iowa Code. Id. § 216.17; see Botsko v. Davenport Civil

Rights Comm’n, 774 N.W.2d 841, 844 (Iowa 2009).           We are therefore

bound by the commission’s findings of fact if supported by substantial

evidence. Botsko, 774 N.W.2d at 844; see also Iowa Code § 17A.19(10)(f).

We will not, however, give deference to the commission’s interpretation of

provisions of law not vested in its discretion and will review those

interpretations for legal errors. See Rent-A-Ctr., Inc. v. Iowa Civil Rights

Comm’n, 843 N.W.2d 727, 730 (Iowa 2014); Botsko, 774 N.W.2d at 844;

see also Iowa Code § 17A.19(10)(c). We apply the standards of chapter

17A on appeal to determine if our conclusions are the same as the

district court’s conclusions.   See Sunrise Ret. Cmty. v. Iowa Dep’t of

Human Servs., 833 N.W.2d 216, 219 (Iowa 2013).

      III. Discussion.

      Section 216.9 of ICRA provides, in general terms, that “[i]t is an

unfair or discriminatory practice for any educational institution to

discriminate on the basis of . . . disability in any program or activity.”

Iowa Code § 216.9. The DCRO sets forth the same general language in

extending its own protections against disability discrimination, to

“provide for the execution within the city of the policies embodied in the

Iowa Civil Rights Act of 1965 and” related federal civil rights laws. See

Davenport, Iowa, Mun. Code § 2.58.010(B) (2013); id. § 2.58.125(A).

Federal law extends its own disability discrimination protections in both
                                      12

the ADA and Section 504 of the Rehabilitation Act. See Americans with

Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101–12213 (2006);

Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794.

      We have often explained we will look to the ADA and cases

interpreting its language, as well as cases interpreting the Rehabilitation

Act, for guidance as we analyze disability discrimination claims brought

under ICRA. See, e.g., Fuller v. Iowa Dep’t of Human Servs., 576 N.W.2d

324, 329 (Iowa 1998).       We have also explained we may look to the

regulations underlying the federal acts in our analysis. Id. While these

authorities are often persuasive, we note we are also guided by the

breadth of the protections very clearly set forth in both ICRA and the

DCRO.    See Iowa Code § 216.18(1) (“This chapter shall be construed

broadly to effectuate its purposes.”); Davenport, Iowa, Mun. Code

§ 2.58.020 (“This chapter shall be construed broadly to effectuate its

purpose.”).

      While ICRA and the DCRO set forth their protections in general

terms, without language of limitation, the Rehabilitation Act and the ADA

contain additional content in their statutory provisions.           The ADA,

applicable to all academic institutions receiving federal funding, provides

that “no qualified individual with a disability shall, by reason of such

disability . . . be denied the benefits of the . . . programs . . . of a public

entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132. The Rehabilitation Act sets forth a similar standard, providing

“[n]o otherwise qualified individual with a disability . . . shall, solely by

reason of her or his disability . . . be denied the benefits of . . . any

program or activity receiving Federal financial assistance.”        29 U.S.C.

§ 794.   Both the ADA and the Rehabilitation Act specifically prohibit

discrimination against those with disabilities based not just on
                                         13

“affirmative    animus,”      but    also     any    discrimination      based      on

thoughtlessness, apathy, or stereotype.3 See, e.g., Alexander v. Choate,

469 U.S. 287, 295–97, 105 S. Ct. 712, 717–18, 83 L. Ed. 2d 661, 668–69

(1985).

       In the context of higher education, Rehabilitation Act regulations

explain a qualified individual is one “who meets the academic and

technical standards requisite to admission or participation in the

recipient’s education program or activity.” 34 C.F.R. § 104.3(l)(3) (2013).

Educational institutions are required, however, to provide “such

modifications . . . as are necessary” to aid individuals in meeting these

academic and technical standards, to ensure requirements do not

discriminate on the basis of disability.            Id. § 104.44(a).       The ADA

incorporates a closely related accommodation requirement in defining a

“qualified individual with a disability” as one “who, with or without

reasonable modifications to rules, policies, or practices . . . or the

provision of auxiliary aids and services, meets the essential eligibility

requirements for the receipt of services or the participation in programs

or activities provided.”      42 U.S.C. § 12131(2).          Various courts have

explained the ADA’s “reasonable modification” requirement and the

Rehabilitation Act’s accommodation requirement impose coextensive


       3The   ADA goes further, defining discrimination in the context of public
accommodation to include: (1) any use of criteria that unnecessarily “screen out” or
“tend to screen out” individuals with disabilities; (2) failure to make nonfundamental,
reasonable modifications of “policies, practices or procedures” when modification is
necessary to accommodate those with disabilities; and (3) failure to take necessary
steps “to ensure that no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals.”         42 U.S.C.
§ 12182(b)(2)(A) (defining “discrimination” under the ADA); see also 34 C.F.R.
§§ 104.43—104.44 (2013) (implementing Section 504 of the Rehabilitation Act); 28
C.F.R. § 36.103 (explaining the ADA “shall not be construed to apply a lesser standard
than the standard to be applied” under Section 504).
                                          14

obligations,    and    the    terms    and     standards     may     often   be    used

interchangeably.      See, e.g., Wong v. Regents of Univ. of Cal., 192 F.3d

807, 816 n.26 (9th Cir. 1999).

       Evaluating these statutory and regulatory standards in cases

involving claims of disability discrimination in higher education, courts

have required a claimant establish the following elements: (1) the

claimant is a person with a disability under the relevant statute or

statutes; (2) the claimant is qualified to participate in the program or, in

other words, can meet the essential eligibility requirements of the

program with or without reasonable accommodation; and (3) the

claimant was denied the benefits of the program because of his or her

disability.4   See, e.g., id. at 816; Ohio Civil Rights Comm’n v. Case W.

Reserve Univ., 666 N.E.2d 1376, 1383 (Ohio 1996). We have previously

adopted a substantially similar framework for analysis in the context of

employment discrimination claims brought under ICRA and its federal

analogues. See, e.g., Boelman v. Manson State Bank, 522 N.W.2d 73, 79

(Iowa 1994) (requiring discharge based on disability in place of denial of

benefits based on disability). The parties have not suggested we apply a

different framework for purposes of analyzing education discrimination
claims brought under ICRA and the DCRO, and thus we apply our

familiar disability discrimination framework to each of the claims at

issue here. Further, because the parties do not dispute that Cannon is a

person with a disability under each of the relevant statutes and do not

seriously dispute that he was denied the benefits of the program because


        4In analyzing claims brought under the ADA and Rehabilitation Act, courts have

added a fourth element: evidence the institution receives federal financial assistance or
is a public entity. See, e.g., Wong, 192 F.3d at 816. The parties concede here Palmer
receives federal financial assistance for purposes of Cannon’s federal claims and the
federal assistance requirement is inapplicable to Cannon’s state and municipal claims.
                                           15

of his disability, we consider here only the question of whether Cannon

was qualified to participate in the Palmer program with reasonable

accommodation.5
       1. The meaning of “Qualified with Reasonable Accommodation.” As

noted, the relevant federal acts and regulations define qualified

individuals as those individuals who, with reasonable accommodation or

“modification,” can meet the “essential eligibility requirements”6 of the

institution.     42 U.S.C. § 12131(2).7           In interpreting the meaning of

reasonable accommodation, the United States Supreme Court has noted

regulations implementing the Rehabilitation Act provide reasonable

“[m]odifications may include changes in the length of time permitted for

the completion of degree requirements, substitution of specific courses

required for the completion of degree requirements, and adaptation of the

       5Palmer   notes other courts have sometimes expressed the “was denied the
benefits of the program” element of the analysis as a requirement that a claimant has
been “dismissed” from the program. See, e.g., Wong, 192 F.3d at 816. Because Cannon
withdrew from the graduate program on his own, Palmer suggests he may not have met
a “dismissal” requirement. We note, however, the relevant statutes here require only
that a claimant be “denied the benefits” of the program for purposes of making out a
claim. 42 U.S.C. § 12132; 29 U.S.C. § 794; Iowa Code § 216.9(1)(a); Davenport, Iowa,
Mun. Code § 2.58.125(A)(1). Palmer concedes Cannon would have been denied the
benefits of the program by the fifth trimester, if not earlier, based on his blindness, and
thus we need not address the element further here.
       6As noted, relevant Rehabilitation Act regulations set forth slightly different
language in explaining a qualified individual may be required to “meet[] the academic
and technical standards requisite to admission or participation in the recipient’s
education program or activity.” 45 C.F.R. § 84.3(l)(3).
        7We note the Rehabilitation Act adds the term “otherwise” in prohibiting

discrimination against an “otherwise qualified individual with a disability.” 29 U.S.C.
§ 794(a). Numerous courts have explained despite this slight difference in terminology,
the analyses of claims under both laws proceeds in much the same way. See, e.g.,
Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 150 n.7 (2d Cir.
1999) (noting this linguistic difference between ADA and Rehabilitation Act); Nelson v.
Miller, 170 F.3d 641, 649 (6th Cir. 1999) (noting analyses under the two provisions do
not differ significantly). See generally Zukle v. Regents of Univ. of Cal., 166 F.3d 1041,
1045 n.11 (1999) (collecting cases pointing out relationship between the ADA and
Rehabilitation Act).
                                          16

manner in which specific courses are conducted.” See Se. Cmty. Coll. v.

Davis, 442 U.S. 397, 408 n.9, 99 S. Ct. 2361, 2368 n.9, 60 L. Ed. 2d

980, 990 n.9 (1979) (quoting 45 C.F.R. § 84.44); see also 29 C.F.R.

§ 1630.2(o)(2)     (providing,    in    employment        discrimination      context,

“[r]easonable accommodation may include but is not limited to: . . .

acquisition or modifications of equipment or devices; appropriate

adjustment or modifications of examinations, training materials or

policies; the provision of qualified readers or interpreters; and other

similar accommodations for individuals with disabilities” (emphasis

omitted)).

       Further, the Supreme Court has noted, reasonable modifications

in the form of “[a]uxiliary aids may include taped texts, interpreters or

other effective methods . . ., readers in libraries for students with visual

impairments, classroom equipment adapted for use by students with

manual impairments, and other similar services and actions.”                    Davis,

442 U.S. at 408 n.9, 99 S. Ct. at 2368 n.9, 60 L. Ed. 2d at 990 n.9

(quoting 45 C.F.R. § 84.44); Nelson v. Thornburgh, 567 F. Supp. 369, 380

(E.D. Pa. 1983) (“[T]he provision of readers is an express HHS example of

reasonable accommodation.” (Internal quotation marks and brackets

omitted.)). Reasonable modification need not include, however, “ ‘devices

or services of a personal nature.’ ”8 Davis, 442 U.S. at 408 n.9, 99 S. Ct.



       8Palmer  suggests this “personal nature” principle might apply to Cannon given
his status as the only student at Palmer currently requesting accommodation. We find
the suggestion unpersuasive—we cannot conclude the implementing regulation in
question simply absolves institutions of their obligation of accommodation in cases
where requests are made by individuals, as opposed to groups of students. Instead, we
believe the regulation indicates the “personal nature” principle is directed to services
and devices dedicated exclusively to individuals—services that cannot, by their nature,
typically also be used as accommodation by other individuals.            See 34 C.F.R.
§ 104.44(d)(2). Palmer has not suggested Cannon’s requests fit that latter description.
                                    17

at 2368 n.9, 60 L. Ed. 2d at 990 n.9 (quoting 45 C.F.R. § 84.44). In

addition, an accommodation may not be reasonable, the Supreme Court

has explained, if it imposes “undue financial [or] administrative burdens”

on the institution, or if it requires “a fundamental alteration in the

nature of [the] program” offered. Id. at 410–12, 99 S. Ct. at 2369–70, 60

L. Ed. 2d at 990–92. Because the parties have not raised below or on

appeal   an   issue   of   undue    burden    with   respect   to   possible

accommodations, and because Cannon’s requests fit plausibly within the

range of accommodations recognized as reasonable by courts and the

ADA’s implementing regulation, we consider here only the issue of

whether accommodation would constitute a fundamental alteration of

Palmer’s program.

      2. The general contours of the fundamental alteration analysis. In

Davis, the Supreme Court encountered a case of a student with

substantial hearing loss who sought nursing training at Southeastern

Community College, in pursuit of her eventual goal of state nursing

certification in North Carolina.     Id. at 400, 99 S. Ct. at 2364, 60

L. Ed. 2d at 985–86. Upon learning of the student’s hearing loss in the

application process, Southeastern consulted its entire nursing faculty,

an outside audiologist, and the director of the North Carolina nursing

board, as part of its process of determining whether the student could be

admitted to the Southeastern program and whether the student could

later safely participate in Southeastern’s clinical training program. Id. at

401–02, 99 S. Ct. at 2364–65, 60 L. Ed. 2d at 985–86. Based largely on

the views of the nursing board director that the student had “hearing

limitations which could interfere with her safely caring for patients,” and

limitations that could make it “impossible for [the student] to participate

safely in the normal clinical training program,” Southeastern denied the
                                        18

student admission.       Id. at 401–02, 99 S. Ct. at 2365, 60 L. Ed. 2d at

985–86.

       Relying on those conclusions, the Supreme Court explained

“Southeastern, with prudence, could [therefore] allow [the student] to

take only academic classes.”          Id. at 409–10, 99 S. Ct. at 2369, 60

L. Ed. 2d at 990.     Whatever benefits the student might have received

from an academic course of study, the Court explained, “she would not

receive even a rough equivalent of the training a nursing program

normally gives.” Id. at 410, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990. That

kind   of    modification,   the   Court     concluded,   would    constitute   a

“fundamental alteration” of Southeastern’s nursing program far greater

than the reasonable “modification” required by federal laws and

regulations. Id.

       In reaching its conclusion on the fundamental alteration question

thirty-five years ago, however, the Supreme Court explained the line

between reasonable accommodation and fundamental alteration would

not always be so neatly drawn in the future.           Id. at 412, 99 S. Ct. at

2370, 60 L. Ed. 2d at 992.         “It is possible to envision situations,” the

Court observed, “where an insistence on continuing past requirements

and practices” may deprive “genuinely qualified” persons of opportunities

for participation in educational programs. Id. Technological advances,

the Court explained, should be expected to enhance and appropriately

adapt opportunities for individuals with disabilities without undue

burden, and refusals to modify programs accordingly may then

constitute discrimination under the relevant laws.          Id. at 412–13, 99

S. Ct. at 2370, 60 L. Ed. 2d at 992.         Identification of instances where

refusal     to   accommodate       constitutes   discrimination,    the    Court

emphasized,      would   therefore    remain     an   important    and    ongoing
                                      19

responsibility of those tasked with implementation and application of our

disability discrimination laws. Id.

       Courts later applying the teachings of Davis have explained it

“struck a balance” between the statutory rights ensuring those with

disabilities “meaningful access” to the benefits offered by educational

institutions, and “the legitimate interests” of those institutions “in

preserving the integrity of their programs.” Alexander, 469 U.S. at 300,

105 S. Ct. at 720, 83 L. Ed. 2d at 671; Case W. Reserve Univ., 666

N.E.2d   at   1384   (quoting   Alexander).   To   strike   that   balance

appropriately, the Supreme Court has observed, courts and educational

institutions alike must take great care not to define the benefit or

program “in a way that effectively denies otherwise qualified . . .

individuals [with disabilities] the meaningful access to which they are

entitled.” Alexander, 469 U.S. at 301, 105 S. Ct. at 720, 83 L. Ed. 2d at

672.

       Recognizing this fine line, lower courts have elucidated two

principles in the fundamental alteration analysis that guide us in our

inquiry here.   First, courts have recognized that in considering the

interests of educational institutions in the integrity of their programs,

some deference to the institution’s professional or academic judgment

may often be appropriate. See, e.g., Wong, 192 F.3d at 817; Wynne v.

Tufts Univ. Sch. of Med., 932 F.2d 19, 25 (1st Cir. 1991).         Second,

however, whether and the extent to which that deference is appropriate

depends heavily on the institution’s satisfaction of several obligations.

See Wong, 192 F.3d at 817–18; Wynne, 932 F.2d at 25–26.               The

institution, for example, has a “real obligation” to seek out “suitable

means of reasonably accommodating” individuals with disabilities and to

submit “a factual record indicating” it “conscientiously carried out this
                                     20

statutory obligation.”   Wynne, 932 F.2d at 25–26; see also Wong, 192

F.3d at 818 (“Subsumed within this standard is the institution’s duty to

make itself aware of the nature of the student’s disability [and] to explore

alternatives for accommodating the student[.]”). That obligation requires

an individualized and extensive inquiry—an institution must “carefully

consider[] each disabled student’s particular limitations and analyz[e]

whether and how it might accommodate that student in a way that

would allow the student to complete the school’s program without

lowering academic standards.” Wong, 192 F.3d at 826; see Mark H. v.

Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010) (“ ‘[M]ere speculation

that a suggested accommodation is not feasible falls short of the

reasonable accommodation requirement; [the Rehabilitation Act] create[s]

a duty to gather sufficient information from the disabled individual and

qualified experts as needed to determine what accommodations are

necessary.’ ” (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1136

(9th Cir. 2001))); Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir.

1988) (“[T]he determination of whether physical qualifications are

essential functions of a job requires the [fact finder] to engage in a highly

fact-specific inquiry. Such a determination should be based upon more

than statements in a job description and should reflect the actual

functioning and circumstances of the particular enterprise involved.”

(Citation omitted.)); see also Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S.

273, 287, 107 S. Ct. 1123, 1130–31, 94 L. Ed. 2d 307, 320 (“[T]he [fact

finder] will need to conduct an individualized inquiry and make

appropriate findings of fact. Such an inquiry is essential if § 504 is to

achieve its goal of protecting handicapped individuals from deprivations

based on prejudice, stereotypes, or unfounded fear . . . .”).
                                       21

      Furthermore,    institutions     cannot      merely    look   to   “accepted

academic norms,” in exploring reasonable accommodations—because

reasonable alternatives may often “involve new approaches or devices

quite beyond ‘accepted academic norms.’ ”             Wynne, 932 F.2d at 26

(quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S. Ct

507, 513, 88 L. Ed. 2d 523, 532 (1985)); cf. Strathie v. Dep’t of Transp.,

716 F.2d 227, 231 (3d Cir. 1983) (rejecting “broad judicial deference

resembling that associated with the ‘rational basis’ test [which] would

substantially undermine Congress’ intent . . . that stereotypes or

generalizations not deny handicapped individuals equal access to

federally-funded programs” (footnote omitted)); Pushkin v. Regents of

Univ. of Colo., 658 F.2d 1372, 1383 (10th Cir. 1981) (“[The Rehabilitation

Act] provides that a recipient of federal financial assistance may not

discriminate on the basis of handicap, regardless of whether there is a

rational basis for so discriminating. The inquiry has to be on whether

the University has, in fact, discriminated on the basis of handicap. The

mere fact that the University acted in a rational manner is no defense to

an act of discrimination.”).

      We require institutions to fulfill these obligations, courts have

explained, because “courts still hold the final responsibility for enforcing

the [disability discrimination laws] . . . [and w]e must ensure that

educational   institutions     are   not    ‘disguis[ing]   truly   discriminatory

requirements’ as academic decisions.” Wong, 192 F.3d at 817 (quoting

Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999)).

Only if we determine an institution has satisfied its obligation of detailed,

individualized inquiry is it appropriate to defer to the institution’s

judgment regarding the integrity of its program. See Zukle, 166 F.3d at

1048; see also Wong, 192 F.3d at 817–18; Pandazides v. Va. Bd. of Educ.,
                                   22

946 F.2d 345, 349 (4th Cir. 1991) (“Accordingly, defendants cannot

merely mechanically invoke any set of requirements and pronounce the

handicapped applicant or prospective employee not otherwise qualified.

The district court must look behind the qualifications. To do otherwise

reduces the term ‘otherwise qualified’ and any arbitrary set of

requirements to a tautology.”).

      3. The appropriate level of deference here.    On appeal, Palmer

contends the commission erred, as a matter of law, in failing to grant

appropriate deference to Palmer’s position regarding Cannon’s ability to

complete the graduate program without fundamental alteration, and

relies on two distinct grounds.

      First, Palmer relies on an earlier Iowa higher education case where

we explained we “ ‘may not override’ ” an institution’s professional

judgment “ ‘unless it is such a substantial departure from accepted

academic norms as to demonstrate that the person or committee

responsible did not actually exercise professional judgment.’ ” See North

v. State, 400 N.W.2d 566, 571 (Iowa 1987) (quoting Ewing, 474 U.S. at

225, 106 S. Ct. at 513, 88 L. Ed. 2d at 532). In North, however, we were

not faced with claims of disability discrimination under the ADA or

ICRA—instead, we considered breach of contract, tortious interference,

and substantive due process and § 1983 civil rights claims. See id. at

568–71.    We imported that principle of academic deference from a

Supreme Court case that had also considered a due process claim, where

the Court had no occasion to consider the level of deference to be

accorded in discrimination cases and had taken pains to note it was not

considering claims beyond those before it. See Ewing, 474 U.S. at 225,

106 S. Ct. at 513, 88 L. Ed. 2d at 532 (“It is important to remember that

this is not a case in which the procedures used by the University were
                                   23

unfair in any respect; quite the contrary is true. Nor can the Regents be

accused of concealing nonacademic or constitutionally impermissible

reasons for expelling Ewing[.]”); North, 400 N.W.2d at 571 (quoting

Ewing). Given that context, we are unpersuaded by Palmer’s reliance on

North because, as numerous courts have explained, the application of

deference based on “accepted academic norms” is inadequate in the

disability discrimination context—courts must go significantly further in

their inquiries to ensure inappropriate generalizations do not deny

individuals meaningful access to the benefits provided by educational

institutions. Wynne, 932 F.2d at 26 (“[Ewing] was a context where no

federal statutory obligation impinged on the academic administrators;

their freedom to make genuine academic decisions was untrammeled.”);

Strathie, 716 F.2d at 231; Pushkin, 658 F.2d at 1383; see also

Guckenberger v. Boston Univ., 8 F. Supp. 2d 82, 89 (D. Mass. 1998)

(noting “a court should not determine that an academic decision is a

‘substantial departure from accepted academic norms’ simply by

conducting a head-count of other universities”); Laura F. Rothstein,

Health Care Professionals with Mental and Physical Impairments:

Developments in Disability Discrimination Law, 41 St. Louis U. L.J. 973,

995 (1997) [hereinafter Rothstein] (observing New Jersey federal court

“recognized the importance of individualized determinations” in holding

state medical boards’ use of physical and mental health inquiries “as a

screening device” “were likely in violation of Title II of the ADA” and

observing “these judges were affirming the principle that discrimination

on the basis of disability cannot be justified by generalizations about

such disabilities”).

      Perhaps just as importantly for purposes of our analysis here, the

Supreme Court in Ewing explained it was granting deference there only
                                       24

after noting “the faculty’s decision was made conscientiously and with

careful deliberation, based on an evaluation of the entirety of Ewing’s

academic career.”         Ewing, 474 U.S. at 225, 106 S. Ct. at 513, 88

L. Ed. 2d at 532. To the extent the Ewing deference analysis may inform

our analysis in the context of disability discrimination, then, we note the

Ewing court’s emphasis on the extensive individualized investigation

suggests, much like courts actually considering disability discrimination

claims have, application of any deference may only be appropriate after

an institution has established it has fulfilled its obligations of

conscientious inquiry.      Id.; see also Edward N. Stoner II & J. Michael

Showalter,     Judicial    Deference   to   Educational   Judgment:   Justice

O’Connor’s Opinion in Grutter Reapplies Longstanding Principles, As

Shown by Rulings Involving College Students in the Eighteen Months

Before Grutter, 30 J.C. & U.L. 583, 611 (2004) (noting one principle

“underlying judicial deference in ADA cases involving students is that

persons trained to have educational judgment are not necessarily experts

in disability accommodations”).

      Palmer’s second ground for its contention the commission erred in

failing to extend appropriate deference—namely, that Palmer fulfilled its

obligation of extensive individualized inquiry before denying Cannon the

opportunity to participate in its program—is no more persuasive. Palmer

advances a two-pronged exposition of its investigation with respect to

Cannon.      First, Palmer recounts the numerous discussions its faculty

had in developing the technical standards it seeks to apply here, points

to the evidence it presented below supporting its initial creation and

adoption of the standards, and notes the “standards are based upon

[Palmer’s] teaching experiences with disabled students including those

visually impaired.” Second, Palmer explains the “technical standards are
                                    25

applied on a case-by-case basis depending upon whether or not the

disabled individual meets those standards.” Based on this exposition, we

cannot conclude the commission’s findings regarding Palmer’s approach

were unsupported by substantial evidence or that the commission erred

in determining Palmer failed to advance evidence of an inquiry

resembling anything like the fact-specific, individualized inquiry required

by the caselaw.

      On the first point, Palmer appears to concede it seeks to invoke its

standards in Cannon’s case as an “essential requirement” based on no

investigation at all of Cannon’s condition or ability to perform with a

reader or the various technologies he noted he had or could have at his

disposal.   Instead, Palmer would invoke the standards based on its

experiences with past individuals with disabilities.          That strict,

generalized invocation of Palmer’s technical standard falls far short, we

think, of the conscientious, interactive, student-specific inquiry required

by the caselaw. See, e.g., Wong, 192 F.3d at 819 (“Dean Lewis failed to

discuss Wong’s proposal with any of the professionals who had worked

with Wong to pinpoint his disability and help him develop skills to cope

with it.”); Laura Rothstein, Disability Law and Higher Education: A Road

Map for Where We’ve Been and Where We May Be Heading, 63 Md. L.

Rev. 122, 142 (2004) (“In determining that it would not be a substantial

alteration to accommodate Casey Martin by allowing the use of a golf cart

in professional golf tournament play, the [Supreme Court] emphasized

the importance of an individualized assessment. The Court noted that

for Martin the use of a cart was not a fundamental alteration because the

essential aspect of fatigue was still present for him. The Court added

that other requests for golf carts would have to be individually assessed

to ensure that others would not be unfairly advantaged.”); see also
                                       26

D’Amico v. N.Y. State Bd. of Law Exam’rs, 813 F. Supp. 217, 223

(W.D.N.Y. 1993) (“The Board’s opinion as to what is ‘reasonable’ for a

particular applicant can be given very little weight when the Board has

no knowledge of the disability or disease, no expertise in its treatment,

and no ability to make determinations about the physical capabilities of

one afflicted with the disability or disease.”).

      Palmer fares no better on the second point—it invokes the phrase

“case-by-case basis,” but then concedes it applies its technical standards

depending solely on whether the individual meets the standards.               See

Case W. Reserve Univ., 666 N.E.2d at 1391 (Resnick, J., dissenting)

(“[B]lanket requirements are not ipso facto bona fide.           CWRU cannot

exclude all blind medical school applicants without first investigating

and considering reasonable accommodations . . . any more than it can

exclude     an   individual    applicant    without    conducting     such     an

investigation.”); Rothstein, 41 St. Louis U. L.J. at 994 (“One theme that is

consistent in virtually all disability discrimination decisions, even those

involving academic institutions or health care professions, is that an

assessment about whether a particular individual is otherwise qualified

should be made on an individualized basis. Courts have usually been

wary of generalized determinations that a particular condition renders all

persons with that impairment unqualified to carry out a particular job.”).

If there is an inquiry hidden in that apparent tautology as to how or

whether the standards might be modified in any individual case, or more

importantly, an indication as to the way the inquiry was made for

Cannon, we cannot discern it. Palmer’s generalized application did little

to satisfy its obligation of individualized investigation here.9       See, e.g.,

      9We   think it important to emphasize here Palmer’s apparent concession that
provision of Cannon’s requested accommodations would not fundamentally alter its
                                           27

Wynne, 932 F.2d at 26 (explaining institution must seek means of

reasonably accommodating individual and “[i]f the institution submits

undisputed facts demonstrating that the relevant officials within the

institution considered alternative means . . . the court could rule as a

matter of law that the institution had met its duty”); see also Pandazides,

946 F.2d at 349 (“The district court must look behind the qualifications.

To do otherwise reduces the term ‘otherwise qualified’ and any arbitrary

set of requirements to a tautology.”); Bentivegna v. U.S. Dep’t of Labor,

694 F.2d 619, 621 (9th Cir. 1982) (“[Davis] cannot mean [an institution]

can discriminate by establishing restrictive ‘program requirements’ where

it   could   not    so   discriminate      in   making      individual     employment

decisions.”).

       Turning to the commission’s analysis of the deference question, we

note the commission set forth extensive factual findings bolstering its

conclusion Palmer failed to satisfy its investigative obligation.                  More

specifically, the commission offered substantial evidence in support of

the following findings: Palmer engaged in minimal interaction with

Cannon; Palmer failed to investigate, with or without Cannon, how he

might actually use a reader given a specific task; Palmer failed to


___________________
curriculum until the fifth trimester may constitute probative evidence of the
reasonableness of duties to both provide and specifically investigate these
accommodations in the preceding trimesters. See, e.g., Lane v. Pena, 867 F. Supp.
1050, 1070 (D.D.C. 1994) (“Moreover, the Defendants admit that such requirements, if
any, do not even apply to students such as Lane who have not yet reached their third
year. Consequently, the Defendants cannot simply point to that statute and definitively
conclude that maintaining eligibility for such a commission is an essential requirement
to remaining at the USMMA and that, therefore, their actions were consistent with
Section 504.”), vacated in part on other grounds, 518 U.S. 187, 116 S. Ct. 2092, 135
L. Ed. 2d 486 (1996); Alicia Ouellette, Patients to Peers: Barriers and Opportunities for
Doctors with Disabilities, 13 Nev. L.J. 645, 666 (2013) (“The available evidence indicates
that medical schools graduate more medical students with sensory and motor
disabilities than they admit, suggesting that they make accommodations for students
who develop specific disabilities after they have started their course of study.”).
                                         28

investigate with the requisite depth how other former blind students had

performed specific tasks in the past; Palmer failed to investigate reports

of successful blind students at other schools and successful blind

chiropractic     practitioners;   Palmer      failed   to    investigate    reports   of

technologies used successfully elsewhere in school and professional

settings; and Palmer failed to engage individuals with experience

teaching Cannon or other blind individuals, among other failures. Given

those findings, and given the principle from the relevant caselaw that an

institution’s academic judgments are owed minimal, if any, deference in

the absence of a showing the institution has fulfilled its investigative

obligations, we cannot conclude the commission has erroneously

interpreted the applicable law on deference here.                    See Iowa Code

§ 17A.19(10)(c); Wong, 192 F.3d at 818 (“We do not defer to the academic

institution’s decision in the present case because the record that the

University presented falls short of [the requirement of in-depth,

individual analysis].”).

      4. The commission’s fundamental alteration analysis: specific

fundamental alteration principles and their application here.                 Because

Palmer has failed to establish it met the legal prerequisites for deference

to its determination accommodation would constitute fundamental

alteration here, we turn to the commission’s analysis of the fundamental

alteration inquiry.    Cf. Wong, 192 F.3d at 819–20 (noting, in different

appellate posture, court would “not defer to the institution’s decision”—

instead, it would “examine the rejection of Wong’s request for an eight-

week reading period de novo”).

      At   the    outset,   we    note   numerous           courts   have    explained

determinations of reasonable accommodation and fundamental alteration

within the meaning of the ADA generally require flexible, fact-specific
                                    29

inquiries and are typically resolved as questions of fact.       See, e.g.,

Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir. 1998)

(“The reasonableness of a requested accommodation is a question of

fact.”); Long v. Howard Univ., 439 F. Supp. 2d 68, 80 (D.D.C. 2006)

(“Based on the evidence proffered by the parties thus far, whether the

modifications would in fact constitute a fundamental alteration is a

question requiring jury resolution.”); see also Staron v. McDonald’s Corp.,

51 F.3d 353, 356 (2d Cir. 1995) (“Although neither the ADA nor the

courts have defined the precise contours of the test for reasonableness, it

is clear that the determination of whether a particular modification is

‘reasonable’ involves a fact-specific, case-by-case inquiry that considers

among other factors, the effectiveness of the modification in light of the

nature of the disability in question and the cost to the organization that

would implement it.”); Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th

Cir. 1996) (“[W]e have held that the determination of what constitutes

reasonable modification is highly fact-specific, requiring case-by-case

inquiry.”); Zimple v. Hancock Fabrics, Inc., 2013 WL 4069553, *3 (N.D.

Iowa 2013) (denying summary judgment on fundamental alteration

question and noting “there are many questions of fact in the record on

just what th[e] essential functions [of the job] were”); Powers v. MJB

Acquisition Corp., 993 F. Supp. 861 (D. Wyo. 1998) (“[C]ourts that have

considered the issue in any depth have generally followed . . . a fact-

specific, case-by-case inquiry. . . .   Regardless of how the standard is

phrased, one thing is clear: in most circumstances, the determination of

what constitutes a reasonable modification or accommodation is a fact-

intensive question ill-suited for resolution at the summary judgment

stage.” (quoting Staron, 51 F.3d at 356)); Boelman, 522 N.W.2d at 80

(explaining fact finder must answer question of whether claimant “could
                                     30

perform the essential functions of the job” and, if not, whether any

reasonable accommodation would enable performance); cf. Kerri Lynn

Stone, The Politics of Deference and Inclusion: Toward a Uniform

Framework for the Analysis of “Fundamental Alteration” Under the ADA,

58 Hastings L.J. 1241, 1270 (2007) (“Although the ultimate question [of

fundamental alteration] is quite fact-driven and circumstance-specific,

courts have no guidelines as to the scope of the considerations they

ought to look at regarding the facts and the law surrounding this most

philosophical question . . . .”). But see Sande L. Buhai, Practice Makes

Perfect: Reasonable Accommodation of Law Students with Disabilities in

Clinical Placements, 36 San Diego L. Rev. 137, 146 (1999) (“In

determining whether a function is essential, courts must address each

case individually.   Whether the plaintiff can perform the essential job

functions with reasonable accommodations is a mixed question of law

and fact, which involves primarily a factual inquiry.”).

      Before examining the commission’s findings regarding fundamental

alteration, however, we think it prudent to note several principles courts

and commentators have developed to aid the fact finder in determining

whether an accommodation is reasonable or might constitute a

fundamental alteration in a given case. See Easley by Easley v. Snider,

36 F.3d 297, 302 (3d Cir. 1994) (noting courts “cannot rely” on

institution’s characterization of its program, because the institution “may

attempt to define the benefit in a way that ‘effectively denies otherwise

handicapped individuals the meaningful access to which they are

entitled’ ” (quoting Alexander, 469 U.S. at 301, 105 S. Ct. at 720, 83 L.

Ed. 2d at 672)).     Courts considering education discrimination claims

have often looked to fundamental alteration considerations from the

employment context for guidance. See, e.g., Wong, 192 F.3d at 820–21.
                                     31

Implementing regulations for the ADA’s employment provision suggest

courts consider several factors in determining whether particular duties

constitute fundamental or essential functions of the job. See 29 C.F.R.

§ 1630.2(n)(3); see also Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787

(8th Cir. 1998). Those factors include, among others: job descriptions

prepared for advertising or used when interviewing applicants for the job;

the amount of time spent on the job performing the function in question;

consequences of not requiring the person to perform the function; the

work experience of persons who have held the job; and/or the current

work experience of persons in similar jobs. 29 C.F.R. § 1630.2(n); see

also Rothstein, 41 St. Louis U. L.J. at 976–77 (“The function may be

essential because that function is the purpose of the position, because

there are a limited number of employees among whom the function can

be distributed, or because the function is highly specialized and the

individual was hired specifically because of his or her expertise in that

specialty.”).

      Applying these “essential functions” principles from employment

cases, numerous courts in the education context have found the fact that

institutions have previously granted accommodations the same as or

similar to the accommodation at issue persuasive evidence the

accommodation is reasonable and does not fundamentally alter the

institution’s curriculum. See, e.g., Wong, 192 F.3d at 820 (“The fact that

the school previously made the exact modification . . . that Wong

requested . . . is certainly persuasive evidence from which a [fact finder]

could conclude that the accommodation was reasonable.”); Zukle, 166

F.3d at 1048–49 (considering student’s request for eight weeks off

between medical school rotations and noting institution’s previous

decisions to grant requests for decelerated schedule were probative of
                                    32

reasonableness); Matthews v. NCAA, 179 F. Supp. 2d 1209, 1226–27

(E.D. Wash. 2001) (“Most notably, the NCAA already has granted Plaintiff

two waivers, including one waiver of [its rule requiring student-athletes

to earn seventy-five percent of their annual credit hours during the

regular academic year]. The Court finds it difficult, particularly in light

of the individualized inquiry required by [PGA Tour, Inc. v.] Martin, [532

U.S. 661, 121 S. Ct. 1879, 149 L. Ed. 2d 904 (2001),] to see how granting

a third waiver to Plaintiff would fundamentally alter the NCAA’s purpose,

when the first two waivers did not.”); see also Forbes v. St. Thomas Univ.,

Inc., 768 F. Supp. 2d 1222, 1234 (S.D. Fla. 2010) (explaining school

could not invoke “across-the-board” GPA requirement as basis for

dismissal and noting court could not “ignore the fact that [school dean]

did   provide   accommodations,    and   with    them   Forbes   earned   a

[satisfactory GPA].”). In so doing, these courts have applied the general

principle from the ADA caselaw that an institution will bear a

“particularly heavy” burden in establishing an accommodation is

unreasonable where other institutions have provided accommodation for

the same deficit without significant issue.     Am. Council of the Blind v.

Paulson, 525 F.3d 1256, 1272 (D.C. Cir. 2008) (“[B]ecause other currency

systems accommodate the needs of the visually impaired, the [Secretary

of the Treasury’s] burden in demonstrating that implementing an

accommodation would be unduly burdensome is particularly heavy.”);

see also Tamara v. El Camino Hosp., 964 F. Supp. 2d 1077, 1084–85

(N.D. Cal. 2013) (“Tamara has provided the service animal policies for a

number of stand-alone psychiatric hospitals and individual wards within

general hospitals, whose policies allow for the admittance of service dogs.

. . . In light of the broad allowance for service animals, El Camino has

not met its burden to show that the presence of service dogs within the
                                    33

psychiatric ward is likely to fundamentally alter the nature of the facility

nor has it sufficiently established that it conducted an intensive fact-

based inquiry.” (Citations omitted.)).

      Similarly, courts have considered the current and past job

experiences of those with the same disability in considering whether

modification might fundamentally alter a professional curriculum. See,

e.g., Lane v. Pena, 867 F. Supp. 1050, 1070 (D.D.C. 1994) (“[G]iven that

many people with diabetes have obtained merchant marine licenses, and

at least 50 people with diabetes mellitus are currently operating under a

merchant marine license at sea, the Court finds that the rigid naval

reserve requirements are not ‘essential’ to at least one purpose of the

program, namely, training officers for the merchant marine.”), vacated in

part on other grounds, 518 U.S. 187, 116 S. Ct. 2092, 135 L. Ed. 2d 486

(1996). Courts have also looked to an individual’s past academic success

and considered whether later professional licensure actually requires

performance of the institution’s proposed function. Shaywitz v. Am. Bd.

of Psychiatry & Neurology, 675 F. Supp. 2d 376, 390–91 (S.D.N.Y. 2009)

(“Given Shaywitz’s alleged competence and success as a medical student,

resident, and fellow, and that the Board has largely eliminated its Part II

Oral Exam, the Court finds it plausible that certifying Shaywitz without

his having to pass the live-patient portion of the Part II Oral Exam, based

on the facts as alleged at the pleading stage, would not ‘fundamentally

alter the nature of’ the Board-certification process.” (Internal citations

omitted.)).

      With those propositions in mind, we turn to the commission’s

findings with respect to fundamental alteration.         We note we are

concerned on appeal with two principles regarding the commission’s

findings. First, in reviewing the commission’s factual findings we must
                                        34

determine merely whether the evidence “supports the findings actually

made” by the commission and need not concern ourselves with whether

the evidence might also support a different finding. See Meyer v. IBP,

Inc., 710 N.W.2d 213, 218 (Iowa 2006).              Second, in reviewing the

commission’s application of the law to the facts, we may look to other

grounds of error, such as erroneous interpretation of law, irrational

reasoning, or failure to consider relevant facts, in determining whether

the commission has abused its discretion in its application. Id. at 218–

19.

      As noted above, the commission made several noteworthy findings

in support of its determination Cannon’s proposed accommodation was

reasonable. First, the commission found the record revealed no evidence

state licensing boards required sight, or interpretation of radiographic

images in precisely the manner required by Palmer, for purposes of

licensure.       Second,    Palmer     presented    no   evidence    the   course

modifications and waivers it grants at its California campus have

jeopardized its accreditation with national accrediting bodies. Third, at

least two blind students had graduated previously from Palmer’s

Davenport       campus     and   are    currently   licensed   and     practicing

successfully.

      Palmer asserts, however, that it cannot accommodate Cannon, and

the commission’s decision must therefore be reversed as a matter of law,

because all chiropractic students must be able to see radiographic

images. We find this contention unpersuasive. Palmer itself concedes at

least twenty percent of current chiropractic practitioners practice without

“the ability to take plain film radiographs in their office[],” and concedes

the size of the fraction is currently on the rise. These concessions are at

odds with the contention radiographic image interpretation—regardless
                                     35

whether in the narrow sense Palmer has defined it or even the more

general sense of having the equipment available—must constitute an

“essential” component of the education or practice of chiropractic.

Furthermore, as Palmer has noted, frequent consultation between

chiropractors and radiology specialists is “oftentimes” “part of the clinical

practice [of chiropractic].”

        We also find it instructive that numerous medical schools,

ostensibly recognizing these realities, have admitted blind students and

made accommodation in recent years. See, e.g., Sarah M. Eickmeyer et

al., North American Medical Schools’ Experience with and Approaches to

the Needs of Students with Physical and Sensory Disabilities, 87 Acad.

Med. 567, 569–70 (2012) (finding at least sixty partially- or totally-blind

students matriculated at U.S. medical schools between 2001 and 2010

and noting schools have provided accommodations ranging from “[an]

assistant for observation” to “[an] assistant for physical exam[ination]”).

The accommodations made by these schools, coupled with Palmer’s own

previous accommodations, weigh particularly heavily against Palmer’s

fundamental alteration defense. See Am. Council of the Blind, 525 F.3d

at 1272; Tamara, 964 F. Supp. 2d at 1084–85.               Recent proposed

rulemaking by the Department of Justice bolsters this position, as it

seeks    “to   ensure   that   medical    diagnostic   equipment,   including

examination tables, examination chairs, . . . and other imaging

equipment used by health care providers for diagnostic purposes are

accessible to and usable by individuals with disabilities.”          Medical

Diagnostic Equipment Accessibility Standards, 77 Fed. Reg. 6916, 6916

(proposed Feb. 9, 2012) (to be codified at 36 C.F.R. pt. 1195); see also

Alicia Ouellette, Patients to Peers: Barriers and Opportunities for Doctors
                                          36

with Disabilities, 13 Nev. L.J. 645, 661 (2013) (“Congress also included

incentives in the Affordable Care Act for accessibility.”).

       We     conclude     substantial      evidence     supports      each    of    the

commission’s findings.10 Furthermore, given the widespread recognition
that the fundamental alteration inquiry is fact-intensive and typically to

be resolved as a question of fact, given the recognition in the caselaw

that each of the factors considered by the commission may constitute

persuasive evidence on the issue of reasonable accommodation, and

given the high burden courts have imposed where the same institution or

other institutions have made reasonable accommodation for the same

deficit, we cannot conclude the commission has erroneously interpreted

or irrationally applied the applicable law in concluding Palmer failed to


       10Despite   Palmer’s representations to the contrary, the medical literature also
provides substantial support for the proposition that accommodation of individuals with
sensory and physical deficits need not fundamentally alter the provision of medical
education. See, e.g., Sarah M. Eickmeyer et al., North American Medical Schools’
Experience with and Approaches to the Needs of Students with Physical and Sensory
Disabilities, 87 Acad. Med. 567, 568–70 (2012) (emphasizing the substantial number of
blind students accommodated at medical schools in recent years and explaining
“[m]any have questioned the emphasis placed on specific physical and sensory
capabilities in defining the technical skills required by medical schools”); Michael J.
Reichgott, The Disabled Student as Undifferentiated Graduate: A Medical School
Challenge, 279 JAMA 79, 79 (1998) (“In this era of technologic diagnostics and
professional assistants, the ‘essential functions’ of medical education might be restated
as acquiring fundamental knowledge; developing communication skills; interpreting
data; integrating knowledge to establish clinical judgment; and developing appropriate
professional attitudes and behaviors.”); see also Joel A. DeLisa & Peter Thomas,
Physicians with Disabilities and the Physician Workforce: A Need to Reassess Our
Policies, 84 Am. J. Physical Med. & Rehabilitation 5, 6 (2005) (“Healthcare professionals
adequately trained for the future will need to know what informational resources to use;
how to gather necessary data; how to integrate complex information, make diagnoses,
and develop treatment plans; and how to effectively use changing technological
resources, work with teams, and communicate with diverse populations. These skills
are largely cognitive and not physical, raising questions about the adequacy of the
current approach to medical training.”); cf. Demetrius Moutsiakis & Thomas Polisoto,
Reassessing Physical Disability Among Graduating US Medical Students, 89 Am. J.
Physical Med. & Rehabilitation 923, 926–27 (2010) (noting trend of steadily declining
medical school graduation rates over the last four decades for individuals with physical
and sensory disabilities and recommending schools “remove the requirement of the
undifferentiated graduate to allow [individuals] with, for example, blindness to train in
other capacities such as preventive medicine and public health”).
                                          37

establish provision of Cannon’s requested accommodations would

constitute fundamental alteration of its curriculum on these facts. See

Iowa Code § 17A.19(10)(c), (f), (i), (j), (l).

       IV. Conclusion.

       We conclude substantial evidence supports the commission’s

factual findings and the commission has not erred in interpreting the

relevant laws or applying them to the facts at issue here. We therefore

reverse the decision of the district court and remand the case to the

district court with instructions to affirm the commission’s order.

       REVERSED AND REMANDED WITH INSTRUCTIONS.

       All justices concur except Waterman and Mansfield, JJ., who

dissent.
                                        38
                                      #12–0924, Palmer Coll. v. Davenport CRC

WATERMAN, Justice (dissenting).

        I respectfully dissent.    The majority elevates political correctness

over common sense.          Obscured in its lengthy decision is the fact our

court and the Davenport Civil Rights Commission are requiring Palmer

College of Chiropractic to permit a student, blind since birth, to interpret

X-rays based on what an untrained reader tells him the X-ray films

depict and treat patients through vigorous spinal adjustments relying on

that    interpretation.       Aaron    Cannon   failed   to   prove   such   an

accommodation is reasonable. As the district court recognized, “vision is

indispensable for several critical functions that chiropractic students and

professionals must perform, such as reviewing X-rays, analyzing

radiographs, and assessing physical symptoms.” I defer to no one in my

admiration for Cannon and his blind attorney and the challenges they

both have overcome, but there is a point at which an accommodation

ceases to be reasonable, and it has been met here.

        What is next?        Are we going to require the Federal Aviation

Administration to hire blind air traffic controllers, relying on assistants to

tell them what is appearing on the screen? The principle is the same

here.    A misinterpreted X-ray could lead to improper treatment and

lifelong paralysis.       X-ray interpretation requires training and skilled

judgment to reach correct conclusions based on shades and shadows of

complex bony structures.          That is why many physicians with twenty–

twenty vision choose to outsource interpretation of X-rays to radiologists.

It is ludicrous to override Palmer’s academic decision and require it to

permit a blind person to interpret X-rays for patient treatment based on

what someone else claims he or she is seeing.
                                   39

      The majority’s intrusion into academic judgment on professional

health care standards is unprecedented. No other court in the country

has forced an academic institution to allow a blind student to interpret

X-rays relying on an untrained sighted assistant. The majority fails to

confront the well-reasoned decision of the Ohio Supreme Court applying

the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701–797b, to

uphold a medical school’s decision to deny admission to a blind student

who, like Cannon, requested a personal assistant to read X-rays and

help with clinical examinations.   Ohio Civil Rights Comm’n v. Case W.

Reserve Univ., 666 N.E.2d 1376, 1383, 1386 (Ohio 1996). The district

court correctly followed Case Western Reserve University in concluding

such an accommodation was unreasonable and would fundamentally

alter Palmer’s program.    I would affirm.   Our court and the local

commission comprised of laypersons have no business second-guessing

the professional academic judgment of our nation’s leading college of

chiropractic.   Palmer has reasonably concluded that its graduates

personally must be able to see and interpret X-rays. A student who has

never seen a spine cannot reliably interpret spinal X-rays based on what

someone else tells him the films show.

      I would follow the Ohio Supreme Court’s reasoning in Case

Western, the facts of which are strikingly similar to this case. A blind

student, Cheryl Fischer, applied to medical school at Case Western

Reserve University. Id. at 1379. To evaluate applicants, Case Western

applied technical standards promulgated by the Association of American

Medical Colleges (AAMC), which required that candidates must be able to

“observe a patient accurately at a distance and close at hand.”   Id. at

1379–80.    The AAMC technical standards explained, “The use of a

trained intermediary means that a candidate’s judgment must be
                                    40

mediated by someone else’s power of selection and observation.” Id. at

1380. Case Western “concluded that a blind student would be unable to

complete the requirements of the medical school program.”          Id.   An

associate professor of surgery at Case Western emphasized that “Fischer

would be unable to exercise independent judgment when reading an

X-ray, unable to start an I.V., and unable to effectively participate in the

surgery clerkship.” Id. (noting further that Fischer would be unable to

“identify tissue and organ structures through a microscope” or “observe

how such structures are affected by disease”).           “In the[] medical

educators’ opinions, the use of an intermediary would interfere with the

student’s exercise of independent judgment—a crucial part of developing

diagnostic skills.” Id. at 1387.

      The Ohio Supreme Court deferred to Case Western’s academic

judgment, as we should defer to Palmer’s.       The Ohio Supreme Court

emphasized that an educational institution is in the best position to

determine whether a student will be able to successfully complete the

program:

      [Case Western]’s decision not to modify its program by
      waiving course requirements or permitting intermediaries to
      read X-rays or perform physical examinations is an academic
      decision. Courts are particularly ill-equipped to evaluate
      academic requirements of educational institutions. As a
      result, considerable judicial deference must be paid to
      academic decisions made by the institution itself unless it is
      shown that the standards serve no purpose other than to
      deny an education to the handicapped.

Id. at 1386 (citations omitted).      Deferring to the AAMC technical

standards and the medical educators’ opinions, the court acknowledged

that waiving the requirement to read an X-ray—or using an intermediary

to perform that function—would fundamentally alter the nature of Case

Western’s program. Id. at 1387; see also Cunningham v. Univ. of N.M. Bd.
                                   41

of Regents, 531 F. App’x 909, 919–20 (10th Cir. 2013) (affirming

dismissal of vision-related disability claims by medical student, noting

“[t]o the extent [the plaintiff] avers UNM should have changed its

program   requirements,    such    an     accommodation   would   not   be

reasonable”). The Case Western court further recognized that providing a

blind student additional supervision and waiving courses for the student

is not required under the United States Supreme Court’s decision in

Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S. Ct.

2361, 2369, 60 L. Ed. 2d 980, 990 (1979), when such accommodations

would not change the fact that the student will be unable to satisfy the

degree requirements. Case W. Reserve Univ., 666 N.E.2d at 1386–87.

      Our case is also analogous to Davis. In Davis, the United States

Supreme Court upheld a nursing college’s decision to deny admission to

an applicant with a hearing disability, holding the law “does not

encompass the kind of curricular changes that would be necessary to

accommodate [the applicant] in the nursing program.” Davis, 442 U.S.

at 409, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990. Similarly to the nursing

applicant, Cannon “would not receive even a rough equivalent of the

training” Palmer normally gives.        Id. at 410, 99 S. Ct. at 2369, 60

L. Ed. 2d at 990.   “Such a fundamental alteration in the nature of a

program is far more than the ‘modification’ the regulation requires.” Id.

Like the proposed accommodations for the deaf applicant in Davis, it

appears unlikely “Cannon could benefit from any affirmative action that

the regulation reasonably could be interpreted as requiring.” Id. at 409,

99 S. Ct. at 2368, 60 L. Ed. 2d at 990.          Therefore, Palmer, “with

prudence,” could not allow Cannon to graduate from the program. Id. at

409, 99 S. Ct. at 2369, 60 L. Ed. 2d at 990.
                                       42

      As the majority notes, many practicing chiropractors lack X-ray

equipment and rely on other professional radiologists or chiropractors to

interpret their patients’ X-rays.   Cannon, however, is not asking for a

waiver to allow him to rely on the interpretation of a qualified expert.

Rather, his requested accommodation is to interpret X-rays himself,

based on what an untrained sighted assistant tells him. In any event,

the law does not obligate Palmer to waive program requirements. The

plaintiff in Case Western argued the school should waive certain medical-

school skill requirements because she planned to pursue a practice in

psychiatry, in which those skills were unnecessary. 666 N.E.2d at 1386.

The Ohio Supreme Court rejected this argument, stating:

             The goal of medical schools is not to produce
      specialized degrees but rather general degrees in medicine
      which signify that the holder is a physician prepared for
      further training in any area of medicine. As such, graduates
      must have the knowledge and skills to function in a broad
      variety of clinical situations and to render a wide spectrum
      of patient care. All students, regardless of whether they
      intend to practice in psychiatry or radiology, are required to
      complete a variety of course requirements, including
      rotations in pediatrics, gynecology, and surgery.

Id. at 1387.    In the same way, it is Palmer’s prerogative to decide the
skills necessary to graduate with a chiropractic degree.      A student’s

choice to focus his or her practice on certain skills to the exclusion of

others does not exempt that student from successfully completing degree

requirements.

      The majority recognizes that it is appropriate to give deference to

an institution’s professional or academic judgment, yet refuses to defer to

Palmer because the commission concluded Palmer did not seek out

“suitable   means    of   reasonably    accommodating”   individuals   with

disabilities. I disagree that Palmer’s investigation fell short. Palmer met

with Cannon multiple times, met Iowa Department of the Blind
                                       43

representatives, and expressed a willingness to continue the dialogue.

Nothing in the record supports a conclusion that further investigation by

Palmer would have found a way for Cannon to personally see and

interpret X-rays. Technological advancements may one day allow blind

individuals to interpret X-rays.      No such “app” exists today.         Cannon

simply   has   not   satisfied   his     burden     to   prove    a     reasonable

accommodation is possible regarding X-ray interpretation. See Boelman

v. Manson State Bank, 522 N.W.2d 73, 80 (Iowa 1994) (“[T]he plaintiff

must produce enough evidence to make a facial showing that reasonable

accommodation is possible.”).         The majority would require Palmer to

jump through additional hoops to establish what the record already

makes    clear—Cannon        cannot     satisfy   the    chiropractic     program

requirement that students master X-ray interpretation.

      We should defer to Palmer’s conclusion that accommodating

Cannon would fundamentally alter its chiropractic program. In North v.

State, we recognized “ ‘[c]onsiderations of profound importance counsel

restrained judicial review of the substance of academic decisions.’ ” 400

N.W.2d 566, 571 (Iowa 1987) (quoting Regents of Univ. of Mich. v. Ewing,

474 U.S. 214, 225, 106 S. Ct. 507, 513, 88 L. Ed. 2d 523, 532 (1985)).

Though North did not involve a claim under the ADA, the principle of

deference expressed in that opinion is a truism with broad application.

When presented with ADA claims, courts “have overwhelmingly extended

some level of deference to schools’ professional judgments regarding

students’   qualifications   when      addressing    disability   discrimination

claims.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 463

(4th Cir. 2012) (collecting cases and noting, “[b]ecause we are . . . at a

comparative disadvantage in determining whether Halpern is qualified to

continue in the Doctor of Medicine program and whether his proposed
                                    44

accommodations would effect substantial modifications to the Medical

School’s program, we accord great respect to Wake Forest’s professional

judgments on these issues”). I would follow the United States Supreme

Court’s guidance: “When judges are asked to review the substance of a

genuinely academic decision . . . they should show great respect for the

faculty’s professional judgment.” Ewing, 474 U.S. at 225, 106 S. Ct. at

513, 88 L. Ed. 2d at 532.

      The majority relies on Wong v. Regents of University of California,

192 F.3d 807 (9th Cir. 1999), and Wynne v. Tufts University School of

Medicine (Wynne I), 932 F.2d 19 (1st Cir. 1991), but the standards

elucidated in those cases favor Palmer.    The Court of Appeals for the

Ninth Circuit recognized in Wong that:

            Faculty members and administrators of a professional
      school are unquestionably in the best position to set
      standards for the institution and to establish curricular
      requirements that fulfill the school’s purpose of training
      students for the work that lies ahead of them.

192 F.3d at 825–26.         The court noted deference to an academic

institution is inappropriate only if the institution has not “carefully

consider[ed] each disabled student’s particular limitations and analyz[ed]

whether and how it might accommodate that student in a way that

would allow the student to complete the school's program without

lowering academic standards.” Id. at 826. The court declined to defer to

the University of California’s decision to dismiss a student because “the

record contain[ed] facts from which a reasonable jury could conclude

that the school made th[at] decision[] for arbitrary reasons unrelated to

its academic standards.”     Id.   In contrast, the record shows Palmer

carefully considered whether it could accommodate Cannon’s disability

with a sighted assistant to look at X-rays.       Palmer ultimately and
                                    45

reasonably concluded it could not.       No reasonable fact finder could

conclude Palmer’s decision was unrelated to academic standards.

      In Wynne I, the Court of Appeals for the First Circuit set forth the

appropriate analysis “to assess whether an academic institution

adequately has explored the availability of reasonable accommodations

for a handicapped individual.” 932 F.2d at 26.

      If the institution submits undisputed facts demonstrating
      that the relevant officials within the institution considered
      alternative means, their feasibility, cost and effect on the
      academic program, and came to a rationally justifiable
      conclusion that the available alternatives would result either
      in lowering academic standards or requiring substantial
      program alteration, the court could rule as a matter of law
      that the institution had met its duty of seeking reasonable
      accommodation.

Id. (noting “[i]n most cases, we believe that, as in the qualified immunity

context, the issue of 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’ ” (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9,

105 S. Ct. 2806, 2816 n.9, 86 L. Ed. 2d 411, 426 n.9 (1985))).         The

student in Wynne I asked Tufts University School of Medicine to

accommodate his disability by using a different testing method than

multiple choice to evaluate his progress. Id. at 22. The court concluded

the evidence was insufficient to grant summary judgment in favor of

Tufts because the record did not demonstrate the school considered

possible alternatives or discussed the unique qualities of multiple choice

examinations.    Id. at 28.   The court therefore remanded the case for

further fact-finding. Id.

      Following remand, Tufts provided additional evidence explaining

why “ ‘the multiple choice format provides the fairest way to test the

students’ mastery of the subject matter of biochemistry.’ ”      Wynne v.
                                     46

Tufts Univ. Sch. of Med. (Wynne II), 976 F.2d 791, 794 (1st Cir. 1992).

With the additional evidence, the district court concluded Tufts met the

standard elucidated in Wynne I and entered summary judgment in favor

of Tufts. Wynne II, 976 F.2d at 793. The student again appealed to the

First Circuit.   See id.   The Wynne II court acknowledged that “Tufts’

explanations, though plausible, are not necessarily ironclad.” Id. at 795.

But, the court emphasized “the point is not whether a medical school is

‘right’ or ‘wrong’ in making program-related decisions.” Id. Rather, “[t]he

point is that Tufts, after undertaking a diligent assessment of the

available options,” decided “no further accommodation could be made

without imposing an undue (and injurious) hardship on the academic

program.” Id. The First Circuit therefore affirmed summary judgment

for Tufts, stating “the undisputed facts contained in the expanded

record,   when    considered   in   the   deferential   light   that    academic

decisionmaking deserves, meet the required standard.”                  Id. at 796

(emphasis added) (citation omitted).        Likewise, Palmer has provided

compelling explanations why accommodating Cannon’s disability with a

sighted assistant to look at X-rays for him would fundamentally alter the

chiropractic program. We owe deference to Palmer’s explanations.

      In order to accommodate Cannon, Palmer would have had to lower

its academic standards—something the law does not require. See Wong,

192 F.3d at 826 (noting an institution is responsible for “carefully

considering each disabled student’s particular limitations and analyzing

whether and how it might accommodate that student in a way that

would allow the student to complete the school’s program without

lowering academic standards” (emphasis added)); Wynne II, 976 F.2d at

795 (deferring to Tufts’ conclusion that accommodating the student

“would require substantial program alterations, result in lowering
                                     47

academic standards, and devalue Tufts’ end product—highly trained

physicians carrying the prized credential of a Tufts degree”).         As a

professor explained, the Palmer radiology curriculum has three primary

goals: to teach students to (1) produce diagnostic-quality X-rays, (2)

interpret and glean clinical information off of X-ray film, and (3) apply the

information in a clinical sense for case management. The district court

summarized      how   Cannon’s    proposed     accommodation—a       sighted

assistant to describe X-rays to him—would work: “Cannon asks a series

of questions to the assistant, gradually posing those questions more and

more specifically as needed in order to obtain the information necessary

for him to visualize the displayed image or text.” A professor explained

why   this   accommodation      would     compromise   Palmer’s    academic

requirements:

      I haven’t been able to determine how a sighted assistant
      could give information to the blind student that would not
      compromise [the student’s] independent judgment of those
      films. [For the student to ask] the question, is the film too
      dark or is the film too light, immediately [the reader’s]
      answer to that is a judgment and it compromises the
      student’s ability to independently make that judgment
      themselves.
             ....
             And so if a student is told . . . the film is too dark,
      somebody has already made the judgment for them . . . . If
      they are told the patient is not aligned or they ask the
      question is the patient aligned and the answer is no, then
      that, once again, leverages their independent judgment as to
      whether or not the film needs to be repeated and/or what
      needs to be done to make the film better.

Essentially, a sighted assistant would have to interpret the X-rays and

then relay that interpretation to Cannon; Cannon would not be

interpreting the X-rays himself.        In light of these realities, Palmer

determined that Cannon would be unable to attain the goals of the
                                     48

radiology curriculum. Palmer has demonstrated that a sighted assistant

is not a reasonable accommodation.

      It is not as if Palmer adopted the technical standards lightly or did

not consider Cannon’s arguments for why he should be admitted.

Palmer has carefully considered the skills necessary to become a

chiropractor and determined that the ability to read X-rays is integral.

As one Palmer professor explained, the technical standards Palmer

adopted   are   “clearly   based   from   an    educational   perspective   on

individuals that we have interacted with in the curriculum and what has

worked and what has not worked.”               Palmer adopted its technical

standards in order to comply with the Council on Chiropractic

Education’s national accreditation standards, further supporting the

school’s conclusion that vision is necessary to earn a chiropractic degree.

See Case W. Reserve Univ., 666 N.E.2d at 1379–80, 1385–86 (deferring to

Case Western’s application of technical standards promulgated by the

AAMC).    As noted, Palmer met with Cannon multiple times, met with

Iowa Department of the Blind representatives, and expressed a

willingness to continue the dialogue. Cf. Wong, 192 F.3d at 819, 821

(reversing summary judgment in favor of university when “Dean Lewis

failed to discuss Wong’s proposal with any of the professionals who had

worked with Wong to pinpoint his disability and help him develop skills

to cope with it.”).   Yet, Palmer remained convinced that the program

modifications necessary to accommodate Cannon would fundamentally

alter its program.

      I do not find it legally significant that Palmer modifies its course

requirements and grants certain waivers for blind students enrolled at its

California campus. California law mandates these accommodations by

statute. See Cal. Bus. & Prof. Code § 1000–8 (West, Westlaw through ch.
                                    49

25 of 2014 Reg. Sess., Res. ch. 1 of 2013–2014 Ex. Sess., and all

propositions on the 6/3/2014 ballot) (stating “[n]o blind person shall be”

denied (1) admission to a chiropractic school, (2) the right to take a

chiropractic exam, (3) a chiropractic diploma, (4) admission into an

examination for a state chiropractic license, or (5) a chiropractic license

“on the ground that he is blind”). That California statute does not apply

extraterritorially in Iowa. Unlike California, the Iowa legislature has not

enacted a statute requiring Palmer to waive requirements for blind

persons. Simply because another state imposes such accommodations

on an institution does not mean that those accommodations are not

fundamental alterations of Palmer’s Iowa academic program. Palmer has

provided   ample    evidence    supporting    why    Cannon’s    proposed

accommodation would fundamentally alter its program, and our inquiry

should end there.

      Nor am I convinced otherwise by the fact that blind individuals

have previously graduated from Palmer.        These individuals attended

Palmer many years ago. See Case W. Reserve Univ., 666 N.E.2d at 1385

(discounting testimony of blind doctor who graduated from Case Western

because the doctor “attended [the university] twenty years ago, under

entirely different circumstances than proposed today”).     The academic

standards of the profession have changed since those individuals

graduated, and uniform technical standards have been adopted. Under

the majority’s analysis, a school could never strengthen its program

requirements for legitimate reasons if the result excludes a disabled

person.

      The commission erred, as a matter of law, by failing to defer to

Palmer’s decision that Cannon could not satisfy its academic standards.

See Wynne I, 932 F.2d at 26 (explaining institution must seek means of
                                     50

reasonably accommodating individual and “[i]f the institution submits

undisputed facts demonstrating that the relevant officials within the

institution considered alternative means . . . the court could rule as a

matter of law that the institution had met its duty”). Palmer fulfilled its

obligation of inquiry before denying Cannon’s requested accommodation

of a sighted assistant to read X-rays. Palmer has reasonably concluded

that the ability to personally see and interpret X-rays is essential in order

to successfully diagnose and treat patients, without relying on the

observations of an untrained sighted assistant. Considering the safety of

future patients, there is nothing unreasonable about this requirement.

The majority has not “struck a balance” between the statutory rights

ensuring those with disabilities “meaningful access” to the benefits

offered by educational institutions and “the legitimate interests” of those

institutions in preserving the integrity of their programs. See Alexander

v. Choate, 469 U.S. 287, 300–01, 105 S. Ct. 712, 720, 83 L. Ed. 2d 661,

671–72 (1985).     Rather, the majority and the commission have run

roughshod over Palmer’s legitimate interests and the integrity of Palmer’s

chiropractic program. Accordingly, I respectfully dissent.

      Mansfield, J., joins this dissent.
