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

2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Washington County, ss.: Docket No. 484-9-01 Wncv 

SPARKES 

v. 

NORWICH UNIVERSITY 

 FINDINGS OF FACT, 

 CONCLUSIONS OF LAW, 

 AND NOTICE OF DECISION 

On the basis of the evidence presented at trial, the following decision 

is announced. 
 FINDINGS OF FACT 

1. Plaintiff Jeffrey Sparkes is an Ontario resident who applied and 

was admitted as a student to Norwich University. Cynthia and Roland 

Sparkes are his parents, who paid approximately $30,000 to Norwich in 

tuition and fees. Norwich is an institution which receives federal funding. 

2. Jeff Sparkes attended Norwich, as an undergraduate, for four 

academic years, the last semester having been spent at Buckinghamshire 

College, England as part of a Norwich-sponsored study-abroad program. 

He was an accounting major. Through the four years, Jeff=s performance at 

Norwich was mediocre, at best. His grades slipped down into the Ds and 

Cs, and some courses were failed. At one point, he was suspended from 

participation in rugby. As a very general matter, he did better in the area of 

accounting and business than in English. 

3. As an accounting major, he had certain requirements for 

graduation. Two final required accounting courses turned out not to be 

available at Buckinghamshire, so Jeff found himself at the end of four years 

not having completed the requirements for graduation. To resolve that 

problem, his mother, Cynthia, contacted Professor Murtaugh, Jeff=s adviser. 

Although Murtaugh returned her call in June, he did not respond to letters 

she mailed to him regarding finding the two required courses. It is not at all 

clear why he failed to respond, although the circumstances suggest it may 

have been because the letters were sent during the summer recess while 

Murtaugh may have been off campus. 

4. Jeff did, however, learn that the courses (Cost Accounting and 
3 

Auditing) were available from Nipissing University, an Ontario institution. 

Norwich indicated it would accept credits from Nipissing for the stated 

courses. Jeff attended Nipissing, but failed the first semester, dropped out, 

and still did not have the courses required for the Norwich degree. 

5. It was planned by the family that Jeff would return to Norwich for 

the Fall 2000 semester to complete the remaining requirements. That would 
4 

have been the start of the sixth academic year since matriculating at 

Norwich. In August, however, after the unsuccessful stint at Nipissing, Jeff 

broke down and made clear to his parents that he would not return to 

Norwich–AI can=t go any more.@ The words Abroke down@ are Plaintiffs=, 

but we have little doubt that it was an emotional moment. Jeff was clearly 

distraught at the prospect of returning to Norwich, where he still feels that 

his reading problems made him appear inept in classroom situations. 

6. Being disappointed by this turn of events and the failure to 

complete college degree requirements, the Sparkes family began to ask 

why. This led to an evaluation of Jeff, which revealed that he is seriously 

dyslexic. A report was completed by August 22, 2000. Its conclusions 

include the following: 

 The prognosis for successful intervention to assist 

people with dyslexia varies according to the nature of the 

dyslexia and its severity. In general, more severe and 

complex forms of dyslexia will require longer intervention 

programs. Intervention programs for adults also require a 

longer period of therapy. Although intervention programs 

will offer assistance to overcome the handicapping 

consequences of the disability, dyslexia cannot be cured. 

Individuals with dyslexia will have a lifelong difficulty with 

language-based tasks. Because of the severity of Jeffrey=s 

dyslexia, an exemption for second language requirement is 

recommended. 
5 

7. Such a conclusion is quite consistent with Jeff’s long-term failure 

to perform well in school, particularly in English, reading, and related 

subjects. Indeed, that poor performance stretches back to his first grade 

performance, which had led the first grade teacher to recommend against 

promotion to second grade. That recommendation was overruled by Jeff=s 

parents. At approximately six years of age, the parents had Jeff seen by a 

psychologist for evaluation. It is not clear what follow-up ever was done 

regarding that person=s recommendations. Not only were grades 

consistently poor in these subjects, but his standard test scores in them were 

poor, and consistently below his performance and mathematics scores on 

such tests. This disparity extended to the American College Testing (ACT) 

scores, which were sent to Norwich as part of its admissions process, albeit 

after the positive admissions decision already had been reached and 

communicated to Jeff. Along with all his fellow 1995 freshmen, Jeff was 

administered a Nelson-Denny standardized test, or at least part of it, but his 

comprehension score on that test, by itself, did not Ared flag@ a learning 

disability. Again, however, it was below the math score on that same test. 

8. Mrs. Sparkes sent the Canadian dyslexia evaluation to Norwich, 

where it was routed to Ms. Gills, the head of Norwich=s Learning Center. 

She reviewed the evaluation and communicated to the Sparkes that it was 

insufficient because it lacked a proper diagnosis. In particular, she noted 

that there was a request to drop a required French course, but that such was 

not supported by a clear and specific diagnosis directed to any impediment 

that would be imposed by studying French. The Sparkes had further 
6 

evaluation done in Ontario and sent to Ms. Gills a second evaluation report. 

This evaluation recommended that Jeff be exempted from taking French 

and that he be given extra time to complete written reports, spell-checking 

programs, mentors to aid with such items as spell-checking, and Atemplates@

for written reports. 

9. There is no evidence supporting a finding, and we are not 

persuaded, that Jeff Sparkes would have returned to Norwich in 2001, for 

what would have been his sixth year of college, no matter what 

accommodations might have been made. 

10. There is also no evidence supporting a finding that Jeff needed 

accommodation to complete the final two Accounting courses at Norwich. 

The credible evidence suggests that he did quite well in Accounting, 

ranking, for example, maybe in the top third of Professor Rotondi=s classes. 

Although Jeff did very poorly at the accounting courses at Nipissing, after 

leaving Norwich, it is clear that his psychological state by that time had 

become very negative. This seems beyond doubt, given his graphic 

testimony. He was, by then, consumed with anger and frustration. 

11. Norwich has a Learning Support Center to assist students with 

learning difficulties. Jeff knew of this center and knew it was located in the 

Library. He nevertheless long delayed going to the center, saying he could 

not find it in the Library. He never asked anyone in that structure Awhere=s 

the Learning Center?@ When he finally did find and enter the Center, while 

matriculated, he was met by a receptionist or secretary. He asked that 
7 

person to see someone for assistance in learning. She responded that before 

seeing anyone he would have to fill out the prescribed form. She gave him 

a copy. Jeff placed the copy with his things, brought it back to his room, 

and either lost or forgot it. From his point of view, it was just one more 

printed page, a printed form, relatively indistinguishable from all others. 

He never filled out the form, never spoke with anyone at the Learning 

Center, and continued at Norwich. 

12. We are not persuaded that providing Jeff the kinds of support 

suggested in the August 2000 dyslexia evaluation would have made a 

difference. He did and apparently continues to suffer from a difficult 

disability. In the years since leaving Norwich, roughly ages 25-30, a time in 

which Jeff has clearly been a mature adult, he has not overcome the 

difficulties. If his family did not provide the support indicated necessary 

back in the first grade; if Jeff never followed through with Norwich’s 

Learning Center, as by even mailing the demanded form to his mother to fill 

out; if Jeff has found spell-checkers more confusing than helpful, as he has 

made clear; what is the court=s basis now for making the factual inference 

that he would then have used all the aids recommended, if supplied? It is 

tragic that a talented person such as Jeff saw his problem ignored for as 

long as it was, starting in the first grade. But it is speculative to think that 

the 25 year old Jeff of 2000, having the angry attitude toward returning to 

the classroom that he so obviously did, simply would have swallowed that 

attitude and accepted the accommodations had they been supplied by 

Norwich, and then finished the two or three remaining courses necessary for 

a degree. 
8 

 13. Even today, given the perspective and maturity of five additional 

years, Jeff firmly rejects the kinds of assistance recommended in that 

Canadian Dyslexia report. He does not want spell-checkers. He was never 

asked about Atemplates@ or thesauruses. But given his antipathy to the 

world of words, in which he becomes afraid and confused in a library, 

report templates seem an unpropitious and unpersuasive aid. Instead, 

Sparkes testified he wants Acorrespondence courses@ to be offered him by 

Norwich, for the two accounting courses. He wants the degree to be 

awarded. The fact that Norwich does not offer those courses in such a form 

seems irrelevant to him. We will not engage in the speculation necessary to 

make the finding that correspondence courses, now or five years ago, would 

permit plaintiff to successfully complete the two remaining accounting 

courses. At Norwich, with accounting courses, he had generally done well 

in the traditional class context. The real reason correspondence courses are 

now on the horizon is that Sparkes refuses to return to campus. Hence their 

desirability would seem to flow more from the flexibility to remain off 

campus, rather than the need for accommodation. 

14. Jeff now operates a small business with a partner. They have 

two pizza shops, at locations somewhat distant from each other. The shops 

have had some difficulties unrelated to this litigation of Jeff’s dyslexia, but 

are continuing after two years. They employ more than fifteen workers, in 

addition to delivery drivers. They are not yet producing much income for 

Jeff, but their continued operation after more than two years demonstrates 
9 

that he has business ability. Because of the dyslexia, however, he never 

takes down telephone orders and all books are kept by his mother. 

15. Jeff admitted on the stand that he is ill-suited to become an 

accountant. He cannot deal with all the figures, looking for the mistakes of 

others. Indeed, the books for his own small business, kept by his mother, 

must be reproduced in large type on colored paper for him to be able to read 

it. He did express an interest in becoming a ACMA,@ a Canadian term 

apparently designating one with some level of accounting background, but 

who is pursuing a management, rather than auditing, career path. There 

was no evidence regarding requirements for a CMA designation, whether 

Jeff would have the ability to meet those requirements, whether with some 

reasonable accommodations or otherwise, or what CMAs make in the 

Toronto area. No finding of likelihood of success as a CMA is supported 

by the evidence. 

 CONCLUSIONS OF LAW 

 16. Generally, the purpose of the Rehabilitation Act of 1973 is to 

prohibit discrimination on the basis of disability in programs conducted by 

Federal agencies, in programs receiving Federal financial assistance, in 

Federal employment, and in the employment practices of Federal 

contractors. 29 U.S.C. § 794. 

 17. Section 504 of the Act, at issue here, states that no “qualified 

individual with a disability in the United States . . . shall . . . be excluded 
10 

from . . ., be denied the benefits of . . ., or be subjected to discrimination 

under” any program or activity that receives Federal financial assistance, as 

Norwich University does. 29 U.S.C. § 794(a). To establish a claim for a 

violation of Section 504, a plaintiff must prove that he is disabled under the 

Act, is otherwise qualified for the program from which he was excluded, 

and was discriminated against on the basis of that disability. “Otherwise 

qualified” connotes the ability to meet program requirements with 

reasonable accommodations for the disability. Kaltenberger v. Ohio 

College of Podiatric Medicine, 162 F.3d 432, 435 (6th Cir. 1998). 

 18. Notice of the disability, though moot in the many cases where 

the disability is obvious, is integral to such a claim. In cases of less than 

obvious disabilities, such as here, a post-secondary academic institution 

without reasonable notice cannot be said to have failed to reasonably 

accommodate it. 

 In the section 504 milieu, an academic institution can 

be expected to respond only to what it knows (or is chargeable 

with knowing). This means, as the Third Circuit has recently 

observed, that for a . . . school “to be liable under the 

Rehabilitation Act, [it] must know or be reasonably expected 

to know of [a student’s] handicap.” Nathanson v. Medical 

College of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991). A 

relevant aspect of this inquiry is whether the student ever put 

the . . . school on notice of his handicap by making “a 

sufficiently direct and specific request for special 

accommodations.” Id. at 1386. Thus, we must view the 

reasonableness of [the school’s] accommodations against the 

backdrop of what [the school] knew about [the student’s] 

needs while he was enrolled there. 
11 

Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 795 (1st Cir. 1992) 

(emphasis added). Norwich never had actual notice of Jeff’s disability at 

any time during which he was enrolled there. The evaluation that first 

formally revealed the dyslexia diagnosis was conducted after Jeff’s efforts 

at Nipissing, when he had ceased taking classes at Norwich. 

 19. Plaintiffs argue instead that the various symptoms that Jeff 

suffered, and their academic effects, were sufficient alone to charge 

Norwich with notice of the disability. However, those facts suggest only 

consistently poor performance in English and reading-related courses, the 

problem Jeff had endured his entire academic career, and not more. Though 

Jeff at one point approached Norwich’s Learning Center for help, he did not 

follow through by filling out the required form, or by requesting help in 

filling out the form. Even if he had, merely filling out a form would not 

have been sufficient to obligate Norwich to provide accommodations. 

Norwich “was not obligated to provide accommodation until plaintiff had 

provided a proper diagnosis . . . and requested specific accommodation.” 

Kaltenberger, 162 F.3d at 437 (telling “an academic counselor at the 

College that she thought she might have [a disability] simply did not impose 

an obligation to offer accommodations”). That simply did not occur in this 

case. We are not at all persuaded that some hostile environment at Norwich 

burdened Jeff with insurmountable obstacles to making known his 

disability. Plaintiffs have produced no cases – and we have found none – 

suggesting that circumstances such as those present in this case could be 

sufficient to trigger a postsecondary academic institution’s obligation to 
12 

accommodate a disability. A post-secondary academic institution is not a 

guarantor of its students’ academic success, and the discovery of all 

impediments to it, including undiagnosed learning disabilities of which it 

reasonably is unaware. In effect, plaintiffs seek to impose on Norwich a 

burden or duty greater than mere accommodation--they would hold it liable 

for failing to recognize and diagnose. We are aware of no law imposing 

such a duty. 

 20. We thus conclude that Plaintiffs have no basis for any damages 

arising out of Jeff’s time at Norwich. 

 21. Nevertheless, with the disability finally documented after the 

end of Jeff’s academic career, Plaintiffs request that Norwich be required to 

accommodate it by allowing Jeff to complete the final credits necessary for 

graduation by waiving certain language requirements, and by allowing him 

to take the remaining accounting classes by correspondence. Ignoring that 

Jeff seeks this relief at a time when, so far as the court can tell, he no longer 

is enrolled at Norwich University, still we find such relief unfounded. First, 

Jeff does not need accommodations to complete accounting courses 

successfully. Second, Norwich does not offer the classes Jeff seeks by 

correspondence, and we are not persuaded that it would be reasonable to 

provide them specially to him in that way. Third, even if Jeff’s disability 

did affect his ability to complete these classes, no evidence suggests that the 

correspondence nature of the request addresses the effects of the disability. 

It would seem to exacerbate them by placing heavy emphasis on the skills 

that are so problematic: reading, computer usage, etc. Correspondence 
13 

courses would not accommodate the disability; they merely would allow 

him to take the classes while not in residence, something not obviously 

related to Jeff’s disability. Given his strongly voiced antipathy to computer 

screen and difficulty with reading, correspondence courses seem an illsuited attempt to accommodate--to master material in the remaining 

accounting courses. Plaintiffs concede that Norwich eventually offered 

“accommodations regarding time allowances, report templates, spell 

checkers, mentors, and foreign language substitution,” but that he dismissed 

them as untimely and unhelpful. Plaintiffs’ Supplemental Memorandum of 

Law 7 (filed May 25, 2005). Plaintiffs had the burden of making 

sufficiently specific requests for accommodations. In these circumstances, 

Norwich cannot be held accountable for the timing of efforts to 

accommodate. Moreover, the rejected accommodations are the ones 

recommended to the school with the diagnosis supplied by Jeff’s family. 

There is no basis for any relief he now seeks. 

 22. Plaintiffs’ breach of contract claim is so vague that the court 

considers it waived. Plaintiffs allege without specification that Norwich 

made “oral and written representations,” in the student handbook or 

elsewhere, to the effect that Jeff “would not fall through the cracks.” 

Plaintiffs’ Trial Memorandum 14 (filed May 3, 2005). As the court 

understands it, they claim Norwich breached this promise by allowing Jeff 

to fall through the cracks. This is really just a general objection to their 

view of the quality of Jeff’s educational experience at Norwich. “Contract 

claims that in fact attack the general quality of educational experiences 
14 

provided to students have generally been rejected.” Cencor, Inc. v. Tolman, 

868 P.2d 396, 399 (Colo. 1994). 

NOTICE OF DECISION 

 For the foregoing reasons, Defendant Norwich University is entitled 

to judgment on the Sparkes’ claims. Counsel for Defendant to submit a 

proposed form of judgment. 

 

Dated at Montpelier, Vermont, _______________________, 20__. 

__________________________ 

Judge