                                     Filed:    September 14, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 00-2305
                             (CA-96-54-C)



Robert W. Betts, II,

                                                Plaintiff - Appellant,

           versus


The Rector and Visitors of the University of
Virginia,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed September 7, 2001, as

follows:

     On the cover sheet, section 3, line 3 -- Judge Michael’s name

is deleted, and the district judge’s name is corrected to read

“Samuel G. Wilson, Chief District Judge.”

                                          For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT W. BETTS, II,
Plaintiff-Appellant,

v.
                                                               No. 00-2305
THE RECTOR AND VISITORS OF THE
UNIVERSITY OF VIRGINIA,
Defendant-Appellee.

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

Argued: June 4, 2001

Decided: September 7, 2001

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Dexter Brock Green, JONES & GREEN, L.L.P., Char-
lottesville, Virginia, for Appellant. Richard Croswell Kast, Associate
General Counsel/Special Assistant Attorney General, OFFICE OF
THE GENERAL COUNSEL, Charlottesville, Virginia, for Appellee.
ON BRIEF: Paul J. Forch, General Counsel/Special Assistant Attor-
ney General, Susan M. Davis, Associate General Counsel/Special
Assistant Attorney General, OFFICE OF THE GENERAL COUN-
SEL, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Robert W. Betts appeals from the district court's grant of summary
judgment in favor of the Rector and Visitors of the University of Vir-
ginia (the University) on Betts's Americans with Disabilities Act
(ADA) and Rehabilitation Act claims. The district court held that
Betts does not have a disability as defined by the ADA. Specifically,
the district court held (1) that Betts does not have an actual disability
because his learning impairment does not substantially limit his abil-
ity to learn in comparison to the general population and (2) that the
University did not regard Betts as having a disability. Although we
agree with the district court that Betts does not have an actual disabil-
ity under the ADA, the undisputed record reveals that the University
regarded Betts as being disabled. See 42 U.S.C. § 12102(2)(C). We
therefore reverse the district court's grant of summary judgment on
the issue of disability and remand for further proceedings.

I.

After graduating from North Carolina Wesleyan College with
degrees in biology and chemistry, Betts applied for admission in 1995
to the University's School of Medicine and was subsequently placed
on the wait list. As an alternative to remaining on the wait list, Betts
was offered a spot in the University's Medical Academic Advance-
ment Post-Baccalaureate Program (MAAP), which was a one-year
post college program designed to prepare minority and disadvantaged
students for admission to the University's School of Medicine. The
University guaranteed admission to the School of Medicine to every
MAAP student who maintained a 2.75 GPA per semester and
received no grade lower than a C.

Betts accepted the offer to join the MAAP and enrolled in June
1995. After completion of the fall semester, Betts had a 2.2 GPA and

                   2
a D- in Physics. Despite his failure to meet the program's require-
ments, the MAAP Promotions Committee (the Committee) informed
Betts that he could remain in the program on a probationary basis. As
a condition of his probation, Betts was required to receive tutoring
and to undergo testing at the University's Learning Needs and Evalu-
ation Center (LNEC) to determine if he had a learning disability. In
addition, the Committee indicated that it would reevaluate his aca-
demic performance at the end of the spring semester and decide
whether he would be allowed to enter the School of Medicine with
the 1996 entering class.

Betts submitted to the testing, and the LNEC prepared a report for
the Committee and a letter for his professors. The report concluded
that Betts "had high average verbal conceptual skills and average
intellectual ability" but demonstrated "significant weakness in partic-
ular patterns of abilities." It indicated that he lacked "adequate strate-
gies when information exceed[ed] the storage capacity of his short
term memory" and that he "demonstrated a pattern of uneven cogni-
tive processing skills consistent with a mild learning disability." The
LNEC recommended to Betts's professors that he be given "double
the standard time allotment on timed tests and exams." Finally, the
LNEC informed Betts's professors that "[u]nder the provisions of the
Americans with Disabilities Act (ADA), it is the responsibility of fac-
ulty to implement reasonable and appropriate accommodations." At
the time it recommended accommodations for Betts, the LNEC had
a policy of proposing accommodations for a student only if it believed
that the student had a disability under the ADA.

Betts's professors adopted the LNEC's recommendation and
allowed him double time for five of his exams in the spring semester.
Betts achieved a 3.5 GPA for the five exams, and the lowest grade
that he received was a B. However, because several of Betts's spring
semester exams were taken prior to the double time accommodation,
he only had a GPA of 2.84 for that semester. As a result, he attained
a 2.53 cumulative GPA for the entire year.

Because Betts failed to attain a 2.75 GPA, the Committee rescinded
the conditional offer of acceptance to the University's School of Med-
icine. At the time of the Committee's decision, it knew that the LNEC
had determined that Betts was disabled under the ADA and that he

                  3
had been provided accommodations. The Committee nonetheless
believed that Betts "needed a longer period of time to demonstrate
that the accommodation would in fact allow him to do well." Betts
appealed the decision to Dr. Robert Carey, Dean of the School of
Medicine, on June 10, 1996, but the appeal was unsuccessful.

Betts subsequently filed this suit in federal district court, claiming
that the University violated the ADA, the Rehabilitation Act, and the
Due Process Clause. Betts also asserted a state law contract claim.
Both parties moved for summary judgment. The district court granted
summary judgment in favor of the University. The court held that
Betts was not a qualified individual under the ADA because he could
not meet the academic requirements of the program. The district court
also entered judgment for the University on Betts's due process and
contract claims. When Betts appealed to this court, we affirmed the
summary judgment on Betts's due process and contract claims, but
we reversed on the ADA and Rehabilitation Act issues. We held that
Betts was a qualified individual under the ADA and Rehabilitation
Act. See Betts v. The Rector and Visitors of the Univ. of Va., No. 97-
1850, 1999 WL 739415, at *5 (4th Cir. Sept. 22, 1999) (hereinafter
Betts I). Because the district court assumed (without deciding) that
Betts had a disability within the meaning of the ADA and Rehabilita-
tion Act, we remanded with instructions that the district court deter-
mine whether Betts was disabled. See id. at *7. On remand the parties
cross-moved for summary judgment on the disability issue. The dis-
trict court held that Betts was not disabled and entered summary judg-
ment once again in favor of the University. The court determined that
Betts's learning disability does not substantially limit his ability to
learn in comparison to the rest of the population. In addition, the court
held that the University did not regard Betts as having a learning dis-
ability. Betts now appeals the district court's second award of sum-
mary judgment to the University. We review the district court's grant
of summary judgment de novo. See Porter v. United States Alumo-
weld Co., 125 F.3d 243, 245 (4th Cir. 1997).

II.

The ADA provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a

                   4
public entity, or be subjected to discrimination by such entity." 42
U.S.C. § 12132. The primary issue on this appeal is whether Betts has
a "disability" within the meaning of the ADA.1 The ADA defines the
                                              1
term "disability" as "(A) a physical or mental impairment that sub-
stantially limits one or more of the major life activities of such indi-
vidual; (B) a record of such impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. § 12102(2). Betts claims that
he is disabled under §§ 12102(2)(A) and (C). For the reasons that fol-
low, we conclude that Betts is not disabled under § 12102(2)(A)
because he has failed to show that his learning impairment substan-
tially limits his ability to learn in comparison to the rest of the popula-
tion. However, we agree with Betts that he has a disability under
§ 12102(2)(C). Because the University regarded him as having a dis-
ability that substantially limited his ability to learn, we hold that Betts
has a disability under the ADA.

A.

Betts claims that he is disabled under 42 U.S.C. § 12102(2)(A). In
Betts I we held that in order to establish a disability under
§ 12102(2)(A), Betts must prove that "his learning disorder restricts
his ability to learn in comparison to the general population." Betts I,
1999 WL 739415, at *7 (emphasis added). See also 29 C.F.R.
§ 1630.2(j)(1); Bartlett v. N.Y. State Bd. of Law Exam'rs, 226 F.3d 69,
75 (2d Cir. 2000). Betts argues that there is a genuine issue for trial
regarding whether he is disabled under § 12102(2)(A). We disagree.
Although the record shows that Betts has a learning impairment, his
impairment does not substantially limit his ability to learn in compari-
son to the general population. Betts has a history of academic
achievement, and his learning abilities are comparable to the general
population. Betts received biology and chemistry degrees from North
Carolina Wesleyan College. In addition, the LNEC concluded that
_________________________________________________________________

1 Betts contends that the University in its original motion for summary
judgment did not contest that he is disabled within the meaning of the
ADA. He therefore argues that the district court should not have
addressed the disability issue on remand. We disagree. The district court
acted within its discretion to consider the disability issue notwithstanding
the University's previous strategy. See Saviano v. Comm'r, 765 F.2d
643, 645 (7th Cir. 1985).

                  5
Betts's learning impairment was "mild" and that he has "high average
verbal conceptual skills and average intellectual ability." Although
Betts's expert witness concluded that the LNEC understated the
severity of Betts's learning impairment, the expert did not indicate
that Betts's impairment substantially limited his ability to learn in
comparison to the general population. In fact, Betts's expert noted
that Betts has a superior IQ and that he has developed coping mecha-
nisms to mitigate his learning impairment. Because no reasonable
factfinder could conclude that Betts's learning impairment substan-
tially limited his ability to learn in comparison to the general popula-
tion, the district court's grant of summary judgment on the issue of
disability under § 12102(2)(A) was appropriate.

B.

Betts also asserts that he has a disability under 42 U.S.C.
§ 12102(2)(C). He has a disability under § 12102(C) if the University
regarded him as having an impairment that substantially limited his
ability to learn. See 42 U.S.C. § 12102(2)(C). Thus, Betts must prove
that (1) the University "mistakenly believe[d] that [he] has a physical
impairment that substantially limits" his ability to learn, or (2) the
University "mistakenly believe[d] that an actual, nonlimiting impair-
ment substantially limits" his ability to learn. Sutton v. United Air
Lines, 527 U.S. 471, 489 (1999). "In both cases, it is necessary that
[the public entity] entertain misperceptions about the individual -- it
must believe either that [the individual] has a substantially limiting
impairment that [the individual] does not have or that [the individual]
has a substantially limiting impairment when, in fact, the impairment
is not so limiting." Id. at 489.

The undisputed record reveals that the University regarded Betts as
having a disability under the ADA. The University delegated to the
LNEC the responsibility and authority to determine whether individu-
als are entitled to accommodations under the ADA. At the time Betts
was enrolled in the MAAP program, the LNEC maintained a policy
that it would not recommend learning or testing accommodations
unless it believed that a student had a disability as defined by the
ADA. Here, the LNEC recommended that Betts should receive a
double-time accommodation for his exams and advised Betts's pro-
fessors that "[u]nder the provisions of the Americans with Disabilities

                  6
Act (ADA), it is the responsibility of faculty to implement reasonable
and appropriate accommodations." According to the LNEC's own
policy, it would not have proposed the double-time accommodation
for Betts unless it regarded him as having a disability under the ADA.
After receiving the LNEC's recommendation, Betts's professors
essentially adopted the LNEC's conclusions and treated Betts as if he
had a disability under the ADA. His professors did not question the
LNEC's assessment and provided the accommodation for all of his
remaining exams.

Several MAAP Promotions Committee members admitted in depo-
sitions that the University regarded Betts as being disabled. For exam-
ple, Dr. Benjamin Sturgill, Chairman of the University Medical
School Admissions Committee and a member of the MAAP Promo-
tions Committee testified:

       Q. All right. Your understanding is that he did get evalu-
       ated by the Learning Needs and Evaluation Center?

       A. That's my understanding, yes.

       Q. Okay. And that he was determined to be eligible for
       services and accommodations under the Americans
       with Disabilities Act by the LNEC?

       A. Correct.

       ***

       Q. So the [MAAP] committee was then aware that he had
       been evaluated by the LNEC, and they had documented
       that he did have some disabilities under the ADA?

       A. Yes.

       ***

       Q. What do you recall about the discussions of the com-
       mittee at the May 28 meeting about the fact that he had

                  7
       been determined to be disabled under the ADA and had
       been receiving accommodations?

       A. The [MAAP] committee felt, as I recall, that he cer-
       tainly might benefit from this accommodation but did
       not feel like we had enough information to allow him
       to begin Medical School. The committee felt like we
       needed a longer period of time to demonstrate that the
       accommodation would in fact allow him to do well.

In addition, Dr. Robert Carey, Dean of the University's Medical
School and the arbiter of Betts's appeal of his dismissal from the
MAAP, confirmed that the University regarded Betts as being dis-
abled:

       Q. You were aware [on June 10] that the LNEC had deter-
       mined that he did have documented disabilities as of
       April 1996?

       A. Yes.

       Q. Okay. And that he was eligible for services and accom-
       modations under the Americans with Disabilities Act as
       of that time?

       A. Yes.

       Q. Okay. And that the accommodations that were recom-
       mended were that on the remainder of his tests for that
       semester that he be allowed double time on those tests?

       A. Yes.

       Q. Okay. Were you aware on June 10 that he had actually
       received double time on the remainder of his tests for
       that second semester beginning some time in April of
       1996?

       A. Yes.

                  8
Based on the foregoing undisputed evidence, we conclude that the
University regarded Betts as being disabled under the ADA. As Betts
himself points out, "the University in this case treated [him] in every
respect as if he had a learning disability protected by the ADA." In
short, the record establishes that Betts has a disability under 42 U.S.C.
§ 12102(2)(C). Accordingly, we reverse the district court's grant of
summary judgment on the disability issue and remand for further pro-
ceedings.2
         2

REVERSED AND REMANDED
_________________________________________________________________

2 Our decision is limited to the question of whether Betts has a disabil-
ity under the ADA. We note that on appeal neither party raised the issue
of causation, that is, whether the University denied Betts a benefit
because of his disability. See 42 U.S.C. § 12132; Doe v. Univ. of Md.
Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).

                  9
