UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-1567

ROBERT W. BETTS, II,

Plaintiff - Appellant,

versus

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-96-54-3)

Argued: December 3, 2003 Decided: August 5, 2005

Before WIDENER and KING, Circuit Judges, and Richard D. BENNETT,

United States District Judge for the District of Maryland, sitting

by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Dexter Brock Green, JONES & GREEN, L.L.P., Charlottesville,

Virginia, for Appellant. Richard Croswell Kast, Associate General

Counsel and Special Assistant Attorney General, Office of the

General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,

for Appellee. ON BRIEF: Paul J. Forch, General Counsel and Special

Assistant Attorney General, Susan M. Davis, Associate General

Counsel and Special Assistant Attorney General, Office of the

General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,

for Appellee. 
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

This case has been argued on three previous occasions in this

court and has been decided by written opinion on two of those

occasions: Betts v. The Rector & Visitors, etc., No. 97-1850 (4th

Cir. 1999)(unpublished); and Betts v. The Rector & Visitors, etc.,

No. 00-2305 (4th Cir. 2001)(unpublished). It has also been the

subject of three published opinions in the district court: Betts

v. Rector & Visitors, etc., 967 F. Supp. 882 (W.D. Va. 1997); Betts

v. Rector & Visitors, etc., 113 F. Supp. 2d. 970 (W.D. Va 2000);

and Betts v. Rector & Visitors, etc., 198 F. Supp. 2d 787 (W.D. Va.

2002). We now affirm.

In this appeal, Robert W. Betts challenges the district

court’s order granting summary judgment to the Rector and Visitors

of the University of Virginia on his discrimination claims brought

under the Americans with Disabilities Act (ADA), 42 U.S.C. §§

12101-12213 (2000) and the Rehabilitation Act of 1973, 29 U.S.C. §§

701-797b (1995). At issue is the University’s decision to dismiss

Betts from a post-baccalaureate program and revoke a conditional

offer to accept him as a student in the University’s School of

Medicine upon successful completion of the post-baccalaureate

program. We are of opinion that the University afforded Betts a

reasonable accommodation within the meaning of the statutes,

whether Betts was actually disabled within the meaning of 42 U.S.C.

§ 12102(2)(A) or perceived to be disabled under 42 U.S.C. §
4

12102(2)(C). We thus affirm the district court, which held that no

causal connection existed between Betts’ perceived disability and

the University’s refusal to grant him admission. 

I.

The essential facts are undisputed. Betts applied to the

University’s School of Medicine for entry in 1995 and was not

admitted but was placed on the alternate waiting list. As an

alternative to the waiting list, the University offered him a spot

in its Medical Academic Advancement Post-Baccalaureate program

(MAAP Postbacc). The Postbacc program was a one-year program

designed to prepare minority and economically disadvantaged

applicants for the first year of medical school. Acceptance into

the Postbacc program carried with it admission to the School of

Medicine in the class ending in 1996 if that student completed the

Postbacc program’s requirements, which included maintaining a 2.75

grade-point average and receiving no grade lower than a C.

Satisfactory performance was judged by the faculty of the program.

Betts enrolled in that program in the summer of 1995, but he

did not meet the minimum requirements. For the fall semester, he

had a 2.2 GPA and received a D- in Physics. Rather than dismissing

Betts, the Postbacc Promotions Committee allowed him to remain in

the program on a probationary basis. Betts was required to arrange

tutoring and to contact the University’s Learning Needs and
5

Evaluation Center for testing to determine whether he had a

learning disability. The Committee also informed Betts that his

performance would be re-evaluated by the Postbacc Promotions

Committee following the spring semester.

After conducting a series of tests, the Learning Needs Center

concluded in April 1996 that Betts exhibited difficulties with

short-term memory and reading speed. This was reported to his

professors. Later a more complete evaluation of the same tests

showed that Betts demonstrated “high average verbal conceptual

skills and average intellectual ability.” The evaluation also

revealed “significant weaknesses in particular patterns of

abilities” and evidence suggesting that Betts “lacks adequate

strategies when information exceeds the storage capacity of his

short term memory.”

The Learning Needs Center recommended that Betts be given

twice the allotted time to complete his timed examinations. On his

five spring term exams, taken using the double time accommodation,

Betts had a 3.5 GPA. However, Betts had taken several of his

spring exams prior to receiving the accommodation, and his

composite spring GPA was 2.84. Betts’ cumulative GPA for the

entire year was 2.53. 

The Postbacc Promotions Committee then met again and reviewed

Betts’ record. Basing its decision on Betts’ failure to “meet the

overall 2.75 GPA standard for the academic year,” the Committee
1

 Betts initially alleged that the University’s actions also

violated 42 U.S.C. § 1983 and Virginia contract law. In a previous

opinion, we affirmed the district court’s grant of summary judgment

on these claims. See Betts v. The Rector & Visitors of Univ. of

Va., No. 97-1850, 1999 WL 739415 (4th Cir. Sept. 22, 1999)

(unpublished op.) aff’g 967 F. Supp. 882 (W.D. Va. 1997).

6

voted to drop him from the MAAP Postbacc program and rescind its

conditional offer of admission to the entry class of 1996 in the

School of Medicine. Betts unsuccessfully appealed the decision to

the Dean of the School of Medicine. He then filed this suit.1

II.

Title II of 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 public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132 (1995).

Similarly, the Rehabilitation Act states that “[n]o otherwise

qualified individual with a disability . . . shall, solely by

reason of his of her disability, be excluded from the participation

in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial

assistance . . . .” 29 U.S.C. § 794(a) (1999). 

The ADA and the Rehabilitation Act are generally construed to

impose the same requirements. See Baird ex rel. Baird v. Rose, 192

F.3d 462, 468-69 (4th Cir. 1999). This principle follows from the
2

 While the general requirements of a disability

discrimination claim under the ADA and the Rehabilitation Act are

the same, the standard of causation is not. 29 U.S.C. § 794

plaintiffs must demonstrate that the discrimination occurred

“solely by reason of” their disability. 29 U.S.C. § 794(a). ADA

plaintiffs, on the other hand, need only demonstrate that their

disability played a motivating role in the discriminatory action.

See Baird, 192 F.3d at 468-70. Because Betts has failed to show

causation under the more lenient ADA standard, we need not dwell on

this distinction.

7

similar language employed in the two acts. It also derives from

the Congressional directive that implementation and interpretation

of the two acts “be coordinated to prevent[] imposition of

inconsistent or conflicting standards for the same requirements

under the two statutes.” Baird, 192 F.3d at 468 (citing 42 U.S.C.

§ 12117(b)) (alteration in original).

Thus, to state a cause of action under the ADA or the

Rehabilitation Act, Betts must show that (1) he has a disability as

defined by the statute; (2) he is otherwise qualified for the

benefit in question; and (3) he was excluded from the benefit on

the basis of his disability. Baird, 192 F.3d at 467 (citing Doe v.

Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995)).2

III.

In our second decision in this case, Betts v. The Rector &

Visitors of Univ. of Va., No. 00-2305 (2001), we decided that Betts

was not disabled under the provisions of 42 U.S.C. § 12102(2)(A).

In that same decision however, we decided that Betts did have a
8

perceived disability under 42 U.S.C. § 12102(2)(C) so that in order

to recover, Betts must prove that the University “mistakenly

believe[d] that [he] has a physical impairment that substantially

limits his ability to learn.” Slip op. at 6 (alteration in

original). We also recited in that second appeal that our decision

was limited to whether or not Betts had a disability under the ADA

and that neither party had raised the issue of causation, defined

as “whether the University denied Betts benefits because of his

disability.” Slip op. at 9 n.2.

On remand, the district court addressed the causation issue,

not decided in our second decision. It decided that Betts had not

demonstrated the causal link of his perceived disability to his

dismissal from the MAAP Postbacc program. It held that Betts had

been dismissed “solely because Betts failed to meet the objective

GPA requirement.” Betts v. Rector & Visitors of Univ. of Va., 198

F. Supp. 2d 787, 798 (W.D. Va. 2002). The district court did not

decide the case on the basis of Eleventh Amendment immunity of the

University, rather, on the merits.

From that order Betts appeals. In this appeal, the University

takes the position that the decision of the district court as to

causation is correct, but that if not correct, an Eleventh

Amendment defense should be considered.

The question of the application of the Eleventh Amendment was

raised in the district court, which did not decide the same.
9

Instead, it held that it “need not decide the Eleventh Amendment

question, and instead can proceed to the merits.” 198 F. Supp. 2d

at 791. That the district court was correct in that ruling is

illustrated by two recent decisions of the Supreme Court, Idaho v.

Coeur D’Alene Tribe of Idaho, 521 U.S. 261 (1997), and Wisconsin

Department of Corrections v. Schacht, 524 U.S. 381 (1998). Coeur

D’Alene was a case in which the Indian tribe sued the State of

Idaho to ascertain the extent of the tribe’s ownership in the banks

and submerged lands of Lake Coeur D’Alene, various of its

tributaries, and streams flowing from the lake. The Court applied

the Eleventh Amendment, holding that the Eleventh Amendment barred

the suit in the federal court. It held the State of Idaho was

entitled to rely on its Eleventh Amendment immunity and to insist

upon responding to the claims fo the tribe in the courts of that

State. Important to this case is its reasoning:

Rather, a State can waive its Eleventh Amendment

protection and allow a federal court to hear and decide

a case commenced or prosecuted against it. The

Amendment, in other words, enacts a sovereign immunity

from suit, rather than a non-waivable limit on the

federal judiciary’s subject matter jurisdiction.

521 U.S. 261, 267. 

Consistent with that reasoning is the Schacht case, which was

a case in which a dismissed prison guard sued the State of

Wisconsin Department of Corrections on account of his discharge

and, as well, several employees of the Department, both in their

personal and official capacities. The action was brought in a
10

state court of Wisconsin, and because Schacht had sued for

deprivation of his liberty and property without due process of law,

in violation of the federal Constitution and laws, the defendants

removed the case to the federal court. The Court considered that

Schacht’s claims against the officials in their personal capacities

were not claims against the State of Wisconsin, rather against them

personally. So the Eleventh Amendment defense asserted by the

State was permissible as to the Department and officials in their

official capacities, but could not be asserted against the

officials in their personal capacities. Despite this, the Court

held that the removal was permissible and that the district court

could hear the claims against the officials in their personal

capacities but could not hear the claims against the officials in

their official capacities nor against the Department. Its

reasoning is much the same as in Coeur D’Alene:

The Eleventh Amendment, however, does not automatically

destroy original jurisdiction. Rather, the Eleventh

Amendment grants the State a legal power to assert a

sovereign immunity defense should it choose to do so.

The State can waive the defense. Nor need a court raise

the defect on its own. Unless the State raises the

matter, a court can ignore it.

524 U.S. 381, 389 (citations omitted).

Thus, we conclude, in accordance with Coeur D’Alene and

Schacht that the district court was within its authority in

proceeding to the merits and in not deciding the Eleventh Amendment

question.
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IV.

A.

We finally consider whether the district court properly

awarded summary judgment to the University on causation grounds.

We review this issue de novo, construing the facts in the light

most favorable to Betts. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Even under the deferential summary judgment

standard, however, the record does not support Betts’ contention

that his disability motivated the University’s decision.

Furthermore, we believe that the University provided reasonable

accommodations to Betts that satisfied applicable statutory

mandates, whatever the nature of Betts’ disability and whether

actual or perceived. In sum, because the record taken as a whole

could not lead a rational trier of fact to find for Betts on

causation, or failure to accommodate, no genuine issue for trial

existed and summary judgment was appropriate. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

As discussed above, ADA plaintiffs must demonstrate that they

are (1) “disabled” for purposes of the ADA, (2) otherwise

qualified, and (3) discriminated against on the basis of their

disability. Baird, 192 F.3d at 467 (citing Doe, 50 F.3d at 1265);

see also 42 U.S.C. § 12132 (prohibiting discrimination “by reason

of” disability). In No. 97-1850, our first opinion, we held that

Betts was otherwise qualified, and in No. 00-2305, we held that he
12

was regarded as disabled under the ADA. As Betts now acknowledges,

only the causation prong of Baird has not yet been decided by this

court. Br. of Appellant at 12 (“This brings the analysis to the

third and final element of an ADA claim, causation.”).

It is not even claimed that there is evidence in this case of

any intent or motivation on the University’s part to discriminate

against Betts because of his perceived disability. To the

contrary, the record demonstrates that the University dismissed

Betts because he did not meet the MAAP Postbacc’s objective

performance standards. For example, the deposition testimony of

Dr. Benjamin Sturgill, chairman of the Promotions Committee,

addressed the specific issue of what the Committee considered in

its evaluation:

Q: All right. And that was the reason the

committee decided not to allow him to continue

in the program, that his cumulative annual

grade point average was below a 2.75?

A: I think that is a fair assessment of that

decision, yes.

Q: Okay. And that was the only criteria that he

hadn’t met. There weren’t other criteria that

he hadn’t met?

A: That’s correct.

* * *

A: We only looked at his grades.

Q: And when you say his grades, you’re talking

about his overall grades for that entire

semester?
13

A: Yes.

JA 107-08, 112. The other evidence confirms the objectivity of the

University’s decision. See, for example, JA 120-127 (Aff. of Dir.

of Admissions Beth Bailey); and JA 113-114, a part of the testimony

of Dr. Robert Carey, Dean of the Medical College, as to how he

decided Betts’ appeal from the Committee decision:

Q: That’s fine. In making your June 10 decision

to uphold the decision of the committee

dismissing him from the program, did you take

into account the fact that his academic

performance had significantly improved after

he had received accommodations --

A: Yes.

Q: -- sometime in April of 1996?

A: Yes. I have that knowledge, and I did take

that into account in my decision.

Q: Okay. How did that factor into your

decision?

A: I think it was a matter of trying to make a

decision about whether he was qualified to

enter medical school with the information that

we had at hand at that time, including the

results of those examinations which occurred

after accommodation. And my decision was

based on the bulk of the evidence as to

whether he was qualified or not and was really

based on the bulk of the evidence as to

whether he was qualified or not and was really

based on the fact that we had only a few

examinations in which he had done well during

accommodation as compared to a very lengthy

track record during that year of lack of

success and even beyond that, his academic

record before he came into the MAAP program,

although that was a minor factor.
14

I think the major factor was he had gone

through the year, he had not achieved the

academic record minimum that we had required,

and that with the amount of time and effort

that went into that part of it as compared to

the few exams that we had at the end, I just

didn’t feel that the bulk of the evidence was

there that he could -- that he was qualified

to enter into and be successful.

At this point, we note especially the GUIDELINES FOR

IMPLEMENTATION OF POST-BACC PROGRAM:

3. If at the end of the second semester of the post-bacc

academic year the GPA for either semester falls below the

standard, the student will be evaluated by the post-bacc

promotions committee who will advise the admissions

office as to whether the student should be allowed to

continue in the program.

Confronted with the evidence from the faculty members and the

Admissions officer, which is supported by Betts’ grades, which we

do not individually enumerate, Betts argues that the University’s

decision had the effect of discriminating against him on the basis

of his perceived disability.

In light of its well-founded and ADA-benign concerns about

Betts’ academic record, the end of the MAPP Postbacc program and

Betts’ imminent matriculation in the medical school, we think that

the University had two choices: ignore years of objective

evidence, within the MAPP Postbacc program and without, and allow

Betts to matriculate based solely on good grades on five tests

taken (with double-time) over 18 days; or rely on Betts’ entire

academic record, particularly his performance in the MAAP Postbacc

program, and render its academic judgment. Betts’ argument would
15

preclude the Committee from considering, much less choosing, the

latter option. We decline to limit the faculty’s academic judgment

in this fashion. “Courts must also give deference to professional

academic judgments when evaluating the reasonable accommodation

requirement.” Kaltenberger v. Ohio Coll. of Podiatric Med., 162

F.3d 432, 436 (6th Cir. 1998).

B.

In addition to lack of causation, we affirm the judgment of

the district court on the alternate ground that the University

provided Betts with the reasonable accommodation required by the

ADA and the Rehabilitation Act, regardless of the nature of his

disability. Indeed, a listing of the University’s accommodations

requires our conclusion:

1. Placing Betts on the Alternate List rather than rejecting

outright his application;

2. Offering Betts admission into the MAPP Postbacc program;

3. Allowing Betts to remain in the MAAP Postbacc program

after his fall semester GPA of 2.2 fell below 2.75 and after he had

earned a grade below a C; 

4. Initiating Betts’ testing for a learning disability, and

allowing Betts to stay in the MAAP program, one reason being that

testing could be had at no cost to Betts; 
16

5. Providing Betts with individualized help from Learning

Needs Center tutors and staff during the spring semester;

6. Granting Betts regular meetings with a faculty adviser

during the spring semester;

7. Allowing Betts double-time on the five exams from April

12 to April 30, 1996; and

8. Offering Betts even another admission to the medical

school in the matriculating class of 1997, contingent upon the

completion of another year of, and improved, course work and

improved MCAT scores.

Instead of accepting the last offer, Betts brought this suit

three days thereafter.

It is true, of course, that the first two accommodations

listed above were put in place before any formal indication of

Betts’ learning impairment (or perception of disability) surfaced.

But the other six accommodations, particularly the University’s

initiating and insistence on testing for Betts and, at the same

time, allowing him to remain in the program despite his fallsemester grades, at least partly to allow him to obtain testing at

no personal cost, represented the University’s ongoing and morethan-reasonable efforts to help Betts attain admission to the

medical school despite his academic troubles.

We are especially persuaded by the University’s final

accommodation to Betts, which demonstrated its stated desire to
17

give Betts more time to demonstrate his capabilities with

accommodation. The district court, in 967 F. Supp. 882, 885 n.1,

refused to consider this accommodation because it determined it to

be a settlement offer under Fed. R. Evid. 408. We are of opinion

that when, as here, the question to be decided is whether an offer

of accommodation has been made, the fact that the same offer may be

considered one of settlement or accommodation does not make it

inadmissible. So we consider the offer.

The only conclusion permitted by the record is that the

University wanted Betts to matriculate right up until the end.

Indeed, we find it noteworthy that not once (until his dismissal)

did the University deny Betts any help or accommodation he sought.

But once the University decided to discontinue the MAAP Postbacc

program in its same form (a decision unrelated to Betts), it simply

ran out of ways to accommodate Betts short of suspending its

academic judgment. Even at that late point, the University devised

a last way to accommodate Betts consistent with its principles.

We need not here demarcate what accommodations are reasonable

in every case involving the ADA or academic institutions.

Considering these facts, we hold simply that the University made

all reasonable accommodations consistent with its fundamental

educational judgment, its duty to the medical profession, and its

obligation to the Commonwealth. See Wynne v. Tufts Univ. Sch. of

Med., 932 F.2d 19, 26 (1st Cir. 1991) (en banc) (“[T]he issue of
18

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. Only if essential facts were genuinely disputed or if there

were significantly probative evidence of bad faith or pretext would

further fact finding be necessary.”) (citation and quotation

omitted). There is no bad faith or pretext on the part of the

University in this case.

In reaching this fact-bound conclusion, we emphasize that we

do not decide one issue briefed by the parties and reached by the

district court. In No. 00-2305 we held that Betts was not actually

disabled but was regarded as disabled. The parties dispute whether

the ADA’s accommodation requirement applies with equal force to a

“regarded as” disabled plaintiff. The district court suggested

that it does not. 

This question has not been decided by this circuit, and our

sister circuits are divided on the issue. Compare Weber v.

Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999), cert. denied,

528 U.S. 794 (2000) and Shannon v. New York City Transit Auth., 332

F.3d 95, 104 n.3 (2d Cir. 2003) (“It is not at all clear that a

reasonable accommodation can ever be required in a ‘regarded as’

case (such as this one) in which it is undisputed that the

plaintiff was not, in fact, disabled.”) with Katz v. City Metal

Co., 87 F.3d 26, 33-34 (1st Cir. 1996) (stating that “Katz

established that City Metal regarded him as having an impairment
19

constituting a disability under section 12102(2)(c) of the Act”).

We think that the extensive accommodations actually offered by the

University are sufficient under either theory, so we express no

opinion on that question.

V.

Because the record as a whole demonstrates that a rational

trier of fact could not find for Betts on the causation element of

his claim, and neither could a fact finder find that Betts was not

reasonably accommodated in all events, the district court properly

granted the University’s motion for summary judgment.

The judgment of the district court is accordingly

AFFIRMED.