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

2005)

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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, th e following decision

is announced.FINDINGS OF FACT

1. Plaintiff Jeffrey Sparkes is an Ontario residen t who applied and was admitted as a student to Norwich University. C ynthia 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 undergradua te, for four academic years, the last semester having been spent at Buckinghamshire College, England as part of a Norwich-sponsored stu dy-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 requirem ents 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 graduatio n. To resolve that problem, his mother, Cynthia, contacted Professor M urtaugh, Jeff = s adviser. Although Murtaugh returned her call in June, he did not respond to letters she mailed to him regarding finding the two require d courses. It is not at all clear why he failed to respond, although the circum stances 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 and3

Auditing) were available from Nipissing University, an Ontario institution. Norwich indicated it would accept credits from Nipi ssing for the stated courses. Jeff attended Nipissing, but failed the f irst 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 re turn to Norwich for the Fall 2000 semester to complete the remaining re quirements. That would4

have been the start of the sixth academic year sinc e matriculating at Norwich. In August, however, after the unsuccessfu l stint at Nipissing, Jeff broke down and made clear to his parents that he wo uld not return to

Norwich– A I can = t go any more. @ The words A broke down @ are Plaintiffs =

, but we have little doubt that it was an emotional m oment. Jeff was clearly distraught at the prospect of returning to Norwich, where he still feels that his reading problems made him appear inept in class room situations.

6. Being disappointed by this turn of events and t he failure to complete college degree requirements, the Sparkes f amily began to ask why. This led to an evaluation of Jeff, which reve aled that he is seriously dyslexic. A report was completed by August 22, 200 0. Its conclusions include the following:

The prognosis for successful intervention to assis t 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 inter vention programs. Intervention programs for adults also re quire a longer period of therapy. Although intervention pr ograms will offer assistance to overcome the handicapping consequences of the disability, dyslexia cannot be cured. Individuals with dyslexia will have a lifelong diff iculty with language-based tasks. Because of the severity of J effrey = s dyslexia, an exemption for second language requirem ent 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 pa rents 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 standa rd test scores in them were poor, and consistently below his performance and ma thematics scores on such tests. This disparity extended to the America n College Testing (ACT) scores, which were sent to Norwich as part of its a dmissions process, albeit after the positive admissions decision already had been reached and communicated to Jeff. Along with all his fellow 19 95 freshmen, Jeff was administered a Nelson-Denny standardized test, or a t least part of it, but his comprehension score on that test, by itself, did no t A red flag @ a learning disability. Again, however, it was below the math score on that same test.

8. Mrs. Sparkes sent the Canadian dyslexia evaluat ion to Norwich, where it was routed to Ms. Gills, the head of Norwi ch = 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 dir ected to any impediment that would be imposed by studying French. The Spar kes had further6

evaluation done in Ontario and sent to Ms. Gills a second evaluation report. This evaluation recommended that Jeff be exempted f rom taking French and that he be given extra time to complete written reports, spell-checking programs, mentors to aid with such items as spell-c hecking, and A templates @ 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 we ll in Accounting, ranking, for example, maybe in the top third of Pro fessor Rotondi = s classes. Although Jeff did very poorly at the accounting cou rses at Nipissing, after leaving Norwich, it is clear that his psychological state by that time had become very negative. This seems beyond doubt, giv en his graphic testimony. He was, by then, consumed with anger an d frustration.

11. Norwich has a Learning Support Center to assis t students with learning difficulties. Jeff knew of this center an d 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 A where = s the Learning Center? @ When he finally did find and enter the Center, wh ile matriculated, he was met by a receptionist or secre tary. He asked that7

person to see someone for assistance in learning. She responded that before seeing anyone he would have to fill out the prescri bed form. She gave him a copy. Jeff placed the copy with his things, brou ght it back to his room, and either lost or forgot it. From his point of vi ew, it was just one more printed page, a printed form, relatively indistingu ishable from all others. He never filled out the form, never spoke with anyo ne at the Learning Center, and continued at Norwich.

12. We are not persuaded that providing Jeff the k inds of support suggested in the August 2000 dyslexia evaluation wo uld have made a difference. He did and apparently continues to suf fer from a difficult disability. In the years since leaving Norwich, ro ughly 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 su pport indicated necessary back in the first grade; if Jeff never followed thr ough with Norwich’s Learning Center, as by even mailing the demanded fo rm to his mother to fill out; if Jeff has found spell-checkers more confusin g 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 recommend ed, 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 i t is speculative to think that the 25 year old Jeff of 2000, having the angry atti tude toward returning to the classroom that he so obviously did, simply woul d have swallowed that attitude and accepted the accommodations had they b een supplied by Norwich, and then finished the two or three remaini ng courses necessary for a degree.8

13. Even today, given the perspective and maturi ty of five additional years, Jeff firmly rejects the kinds of assistance recommended in that Canadian Dyslexia report. He does not want spell-c heckers. He was never

asked about A templates @ or thesauruses. But given his antipathy to the world of words, in which he becomes afraid and conf used in a library, report templates seem an unpropitious and unpersuas ive aid. Instead, Sparkes testified he wants A correspondence 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 thos e 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 o r five years ago, would permit plaintiff to successfully complete the two r emaining accounting courses. At Norwich, with accounting courses, he h ad generally done well

in the traditional class context. The real reason correspondence courses are now on the horizon is that Sparkes refuses to retur n to campus. Hence their desirability would seem to flow more from the flexi bility to remain off campus, rather than the need for accommodation.

14. Jeff now operates a small business with a part ner. They have two pizza shops, at locations somewhat distant from each other. The shops have had some difficulties unrelated to this litiga tion of Jeff’s dyslexia, but are continuing after two years. They employ more t han fifteen workers, in addition to delivery drivers. They are not yet pro ducing much income for Jeff, but their continued operation after more than two years demonstrates9

that he has business ability. Because of the dysle xia, 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-suit ed to become an accountant. He cannot deal with all the figures, l ooking for the mistakes of others. Indeed, the books for his own small busine ss, kept by his mother, must be reproduced in large type on colored paper f or him to be able to read it. He did express an interest in becoming a A CMA, @ a Canadian term apparently designating one with some level of accou nting background, but who is pursuing a management, rather than auditing, career path. There was no evidence regarding requirements for a CMA de signation, whether Jeff would have the ability to meet those requireme nts, whether with some reasonable accommodations or otherwise, or what CMA s 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 fin ancial 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 excluded10

from . . ., be denied the benefits of . . ., or be subjected to discrimination under” any program or activity that receives Federa l financial assistance, as Norwich University does. 29 U.S.C. § 794(a). To e stablish a claim for a violation of Section 504, a plaintiff must prove th at he is disabled under the Act, is otherwise qualified for the program from wh ich he was excluded, and was discriminated against on the basis of that disability. “Otherwise qualified” connotes the ability to meet program req uirements with reasonable accommodations for the disability. Kalt enberger v. Ohio College of Podiatric Medicine , 162 F.3d 432, 435 (6 th Cir. 1998).

18. Notice of the disability, though moot in the many cases where the disability is obvious, is integral to such a cl aim. In cases of less than obvious disabilities, such as here, a post-secondar y academic institution

without reasonable notice cannot be said to have fa iled 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 ha s recently observed, that for a . . . school “to be liable und er the Rehabilitation Act, [it] must know or be reasonably expected to know of [a student’s] handicap.” Nathanson v. M edical College of Pa. , 926 F.2d 1368, 1381 (3d Cir. 1991). A relevant aspect of this inquiry is whether the stud ent ever put the . . . school on notice of his handicap by makin g “a sufficiently direct and specific request for specia l accommodations.” Id . at 1386. Thus, we must view the reasonableness of [the school’s] accommodations aga inst the backdrop of what [the school] knew about [the stude nt’s] needs while he was enrolled there

.11

Wynne v. Tufts Univ. Sch. of Medicine , 976 F.2d 791, 795 (1 st Cir. 1992) (emphasis added). Norwich never had actual notice of Jeff’s disability at any time during which he was enrolled there. The e valuation that first formally revealed the dyslexia diagnosis was conduc ted after Jeff’s efforts at Nipissing, when he had ceased taking classes at Norwich.

19. Plaintiffs argue instead that the various sym ptoms that Jeff suffered, and their academic effects, were sufficie nt alone to charge Norwich with notice of the disability. However, th ose facts suggest only consistently poor performance in English and readin g-related courses, the problem Jeff had endured his entire academic career , and not more. Though Jeff at one point approached Norwich’s Learning Cen ter 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 filli ng 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 spe cific accommodation.” Kaltenberger , 162 F.3d at 437 (telling “an academic counselor a t the College that she thought she might have [a disabili ty] simply did not impose an obligation to offer accommodations”). That simp ly did not occur in this case. We are not at all persuaded that some hostil e environment at Norwich

burdened Jeff with insurmountable obstacles to maki ng known his disability. Plaintiffs have produced no cases – an d we have found none – suggesting that circumstances such as those present in this case could be sufficient to trigger a postsecondary academic inst itution’s obligation to12

accommodate a disability. A post-secondary academi c institution is not a guarantor of its students’ academic success, and th e discovery of all impediments to it, including undiagnosed learning d isabilities of which it reasonably is unaware. In effect, plaintiffs seek to impose on Norwich a burden or duty greater than mere accommodation--the y would hold it liable for failing to recognize and diagnose. We are awar e of no law imposing such a duty.

20. We thus conclude that Plaintiffs have no basi s for any damages arising out of Jeff’s time at Norwich.

21. Nevertheless, with the disability finally doc umented after the end of Jeff’s academic career, Plaintiffs request t hat Norwich be required to accommodate it by allowing Jeff to complete the fin al credits necessary for graduation by waiving certain language requirements , and by allowing him to take the remaining accounting classes by corresp ondence. Ignoring that Jeff seeks this relief at a time when, so far as th e court can tell, he no longer is enrolled at Norwich University, still we find su ch relief unfounded. First, Jeff does not need accommodations to complete accou nting courses successfully. Second, Norwich does not offer the c lasses Jeff seeks by correspondence, and we are not persuaded that it wo uld 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, n o evidence suggests that the correspondence nature of the request addresses the effects of the disability. It would seem to exacerbate them by placing heavy e mphasis on the skills that are so problematic: reading, computer usage, e tc. Correspondence13

courses would not accommodate the disability; they merely would allow him to take the classes while not in residence, som ething not obviously related to Jeff’s disability. Given his strongly v oiced antipathy to computer screen and difficulty with reading, correspondence courses seem an illsuited attempt to accommodate--to master material i n the remaining accounting courses. Plaintiffs concede that Norwic h eventually offered “accommodations regarding time allowances, report t emplates, spell checkers, mentors, and foreign language substitutio n,” but that he dismissed them as untimely and unhelpful. Plaintiffs’ Supple mental Memorandum of Law 7 (filed May 25, 2005). Plaintiffs had the bur den of making sufficiently specific requests for accommodations. In these circumstances, Norwich cannot be held accountable for the timing o f efforts to accommodate. Moreover, the rejected accommodations are the ones recommended to the school with the diagnosis suppli ed by Jeff’s family. There is no basis for any relief he now seeks.

22. Plaintiffs’ breach of contract claim is so va gue that the court considers it waived. Plaintiffs allege without spe cification that Norwich made “oral and written representations,” in the stu dent 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 pr omise 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 experienc e at Norwich. “Contract claims that in fact attack the general quality of e ducational experiences14

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 Unive rsity is entitled to judgment on the Sparkes’ claims. Counsel for De fendant to submit a proposed form of judgment.

Dated at Montpelier, Vermont, _____________________ __, 20__.

__________________________ Judge