NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REBEKAH J. BREYER, 

Plaintiff-Appellant, 

 v. 

PACIFIC UNIVERSITY, a domestic 

nonprofit corporation, 

Defendant-Appellee.

No. 20-35304 

D.C. No. 3:17-cv-00036-AC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

John V. Acosta, Magistrate Judge, Presiding

Argued and Submitted July 9, 2021

Portland, Oregon

Before: O'SCANNLAIN, PAEZ, and BENNETT, Circuit Judges.

Partial Dissent by Judge BENNETT

Rebekah Breyer (“Breyer”) appeals the district court’s grant of summary 

judgment in her action under § 504 of the Rehabilitation Act and Title III of the 

Americans with Disabilities Act (“ADA”) (collectively, “the Acts”) against Pacific 

University (“the University”). Breyer, who has cerebral palsy, alleged ten counts 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

of disability discrimination during the admissions process for, and during her time 

as a student in, the University’s doctor of clinical psychology program. 

Summary judgment is appropriate when “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a); Monzon v. City of Murrieta, 978 F.3d 1150, 1155–56 (9th Cir. 

2020). No genuine issues of material fact preclude summary judgment on Breyer’s 

various theories of discrimination. Reviewing de novo, we affirm.

1. The district court correctly applied a “meaningful access” standard to assess 

Breyer’s discrimination claims and correctly reasoned that whether a student has 

received meaningful access depends on viewing the program as a whole. Bird v. 

Lewis & Clark Coll., 303 F.3d 1015, 1020, 1022 (9th Cir. 2002); see also 28 

C.F.R. § 35.150(a).

2. The district court did not err in granting summary judgment on Breyer’s

claim that the University failed to provide her an equal opportunity in the 

admissions process and doctor of psychology program once she was admitted. The 

Acts permit the University to investigate further whether an applicant meets all 

academic and technical requirements for admission. Se. Comm. Coll. v. Davis, 442 

U.S. 397, 405 (1979). The University determined that Breyer was a strong 

candidate for admission and she was admitted. After admission and before Breyer 

began classes, the University sought to determine appropriate accommodations for 
3 

Breyer such that she would be afforded an equal opportunity to participate in her 

academic program.

After Breyer began classes, the University counseled her about her intended 

career path, informing Breyer that the adult psychology track in which she was 

enrolled was not well-matched with her stated career interest in forensic 

psychology. The University sought to inform Breyer that internships and 

practicum placements might have differing requirements for certain fine motor 

skills. Breyer requested meetings and sought information from the University 

about upcoming course requirements and the need for accommodations to 

complete certain coursework. Contrary to Breyer’s argument, the undisputed facts 

do not establish that the University tried to steer Breyer away from her program or 

provided her with an unequal opportunity on account of her disability. Nor do the 

undisputed facts show that University officials believed that she was unable to 

succeed as a student with disabilities. 

The University’s refusal to provide Breyer with a paid personal assistant to 

complete certain future course requirements did not threaten Breyer’s meaningful 

participation in the doctor of psychology program nor render her access to it 

unequal overall. See Bird, 303 F.3d at 1020, 1022. Breyer’s insistence that she 

needed a paid personal assistant, and her subsequent withdrawal from the 

University two days after she made the request, occurred before the University had 
4 

determined whether certain course requirements could be modified for the 

following semester. Moreover, the record shows that the University granted 

Breyer all other accommodations requested by Breyer during the semester in which 

she was enrolled. 

3. The district court did not err in granting summary judgment to the 

University on Breyer’s retaliation claim. Retaliation claims arising under the ADA 

are evaluated using the burden-shifting framework established in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973).1 T.B. ex rel. Brenneise v. San 

Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015). Under that 

framework, a plaintiff must first establish a prima facie claim of retaliation by 

demonstrating that (1) she was engaged in protected activity; (2) she suffered an 

adverse action; and (3) a causal connection exists between the protected activity 

and the adverse action. Id. (quoting Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 

(9th Cir. 2012)); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). 

An adverse action is any action “reasonably likely to deter [individuals] 

from engaging in protected activity.” Pardi v. Kaiser Found. Hosp., 389 F.3d 840,

850 (9th Cir. 2004); see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 

1 Because the ADA and the Rehabilitation Act are interpreted consistently, 

retaliation claims arising under the Rehabilitation Act are analyzed under the same 

rubric. See Douglas v. Cal. Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th 

Cir. 2002) (O’Scannlain, J., dissenting from denial of reh’g en banc).
5 

53, 68 (2006). Adverse actions include, among other things, tolerating harassment, 

depriving a person of available support services, and requiring an individual to go 

through unnecessary hoops. See Ray, 217 F.3d at 1241–42 (outlining cases finding 

adverse actions).

The record does not show a genuine dispute of material fact as to whether 

the University engaged in retaliation against Breyer. Breyer initiated several 

meetings with university officials to discuss possible accommodations and course 

requirements, and university officials proactively reached out to Breyer to discuss 

concerns that Breyer expressed during class time. There is no evidence that the 

University took any adverse action against Breyer to dissuade her from 

complaining of discrimination. Nor is there any evidence that the University failed 

to respond to her complaints—the University responded to each of Breyer’s 

concerns as they arose and instructed Breyer on how to file a formal complaint. 

See White, 548 U.S. at 57; Pardi, 389 F.3d at 850.

4. The district court declined to recognize a hostile environment theory of 

disability discrimination under the Acts. Indeed, we have not held that such a 

claim is cognizable. But even assuming, without deciding, that such a claim is 

cognizable, it fails here. The record does not demonstrate that the University’s 

actions rise to the level of severe or pervasive harassment. See Arizona ex rel. 

Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016). Breyer has not 
6 

pointed to any evidence in the record that suggests she experienced an abusive 

educational environment. See id.

5. The district court did not err in granting summary judgment on Breyer’s 

discrimination claims relating to the admissions process. Breyer made several 

references to her disability status throughout her application materials. The

University did not discriminate against Breyer when it asked Breyer programrelated questions about her self-disclosed functional limitations. See 34 C.F.R. § 

104.42(b)(4). Inquiries about an applicant’s functional limitations are permissible 

because they address whether a person is qualified for a program. See Wong v. 

Regents of Univ. of Cal., 192 F.3d 807, 817 (9th Cir. 1999); 34 C.F.R. § 104.42(a); 

45 C.F.R. § 84.3(1)(3). 

6. The district court did not err in granting summary judgment on Breyer’s 

reasonable modification and auxiliary aid claims. A university is only required to 

make reasonable accommodations, Baughman v. Walt Disney World Co., 685 F.3d 

1131, 1135 (9th Cir. 2012), and is not required to make fundamental or substantial 

modifications to its programs for a student with disabilities, Bird, 303 F.3d at 1020 

(citing Alexander v. Choate, 469 U.S. 287, 300 (1985)). See also 42 U.S.C. 

§ 12182(b)(2)(A)(ii); 34 C.F.R. §§ 104.44(a), 104.44(d)(2); 28 C.F.R. 

§§ 36.303(a), 36.306. Although Breyer withdrew from the university mid-way 

through her first semester, after the University denied her request for a paid 
7 

personal assistant, the officials in charge of her academic program were still 

researching which reasonable accommodations would be appropriate in light of 

future course requirements. The record shows that the University granted Breyer 

every accommodation that she requested to facilitate her participation in her first 

semester classes. 

7. The district court did not err in granting summary judgment on all of 

Breyer’s claims. The University moved for summary judgment against each of 

Breyer’s claims as alleged in the Second Amended Complaint. Summary 

judgment is appropriate where, as here, there is no genuine dispute of material fact,

Fed. R. Civ. P. 56(a), and the moving party is entitled to judgment as a matter of 

law.

AFFIRMED.
1 

Breyer v. Pacific University, No. 20-35304

BENNETT, Circuit Judge, dissenting in part: 

The failure to reasonably accommodate an otherwise qualified individual’s 

disability is discrimination under Section 504 of the Rehabilitation Act. Alexander 

v. Choate, 469 U.S. 287, 300–01 (1985). An individual is “otherwise qualified” if 

she “is able to meet all of a program’s requirements in spite of [her] handicap.” Se. 

Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Title III of the ADA likewise makes 

it actionable discrimination to fail to make reasonable modifications that are 

necessary to accommodate an individual’s disability, unless a proposed modification 

would “fundamentally alter” the service being offered. 42 U.S.C. 

§ 12182(b)(2)(A)(ii).

Defendant-Appellee Pacific University (“Pacific”) was concerned that 

Plaintiff-Appellant Rebekah Breyer would be unable to complete certain parts of her 

cognitive assessment course unaccommodated. During one meeting, the Director of 

Diversity, Dr. Susan Li, expressed that Breyer’s current accommodations “did not 

appear to be sufficient to provide [her] the support that she would need in the area 

of assessment.” In particular, Dr. Li was concerned that the standardized testing 

component of the assessment course would “require timed administrations and 

manipulation of materials,” and that “any nonstandard administration might result 

in unreliable and invalid test results.” Those concerns were reiterated in a 

FILED

AUG 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

subsequent meeting between Breyer and the Director of the School of Professional 

Psychology, Dr. Jennifer Clark, who also explained that the cognitive assessment 

course would require “manipulation of materials and using a [stopwatch] to 

administer timed subtests”; that the validity of test results might be affected “if not 

administered according to standardized procedures”; and that Pacific would “gather 

more information about accommodations.”

Responding to those concerns, Breyer took the initiative to research and 

request a possible accommodation—an assistant provided by Pacific to perform the 

tasks that she would be unable to perform due to her disability. Dr. Clark granted 

this request on behalf of Pacific, allowing Breyer to “complete the requirements of 

the coursework with the assistance of someone who would administer the testing.” 

Yet there was one important caveat: the cost of an assistant would be Breyer’s 

responsibility.1

In other words, Pacific determined that Breyer did not have to administer the 

standardized tests to complete the cognitive assessment course and thus necessarily

1 The relevant portion of Dr. Clark’s email summarizing her meeting with 

Breyer reads in full:

We discussed your request via email about the possibility of having an 

assistant for the test administration requirements in assessment coursework 

and in practicum training. I let you know that you could complete the 

requirements of the coursework with the assistance of someone who would 

administer the testing, but that the expense for this service would be your 

responsibility.
3 

determined that doing so was not a “requirement” of the Doctor of Clinical 

Psychology Program and would not “fundamentally alter” it. Those determinations 

meant that under both the Rehabilitation Act and the ADA, Pacific owed Breyer a 

duty to reasonably accommodate her disability. Pacific failed that duty, and thus

discriminated against her, when it refused to provide the accommodation she 

requested or to suggest a reasonable alternative. See Stewart v. Happy Herman’s 

Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (“[A] qualified 

individual with a disability is not entitled to the accommodation of her choice, but 

only to a reasonable accommodation.” (quotation marks and citation omitted)). 

The majority avoids that conclusion and affirms summary judgment on 

Breyer’s reasonable accommodation claim under the belief that “officials in charge 

of [Breyer’s] academic program were still researching which reasonable 

accommodations would be appropriate in light of future course requirements.” 

Majority at 6–7. But this belief finds no support in the record. At the very least, it 

is subject to a genuine factual dispute. 

On the Sunday before Dr. Clark decided to allow Breyer to use an assistant at 

her own expense, Dr. Clark was indeed still exploring “what accommodations would 

be allowable and acceptable.” It was her “plan to address/discuss these issues on 

Monday with involved faculty,” and indeed by Monday, Dr. Clark had determined 

that allowing Breyer to use an assistant to administer the standardized tests was an 
4 

allowable and acceptable accommodation. Pacific was simply unwilling to pay for 

the accommodation, or to offer to provide any of the obvious alternatives to a paid 

assistant, such as allowing another student to administer the tests on Breyer’s behalf.

In short, Pacific has presented no evidence that it was “still researching what 

reasonable accommodations would be appropriate” when it refused to pay for a 

personal assistant—i.e., it has presented no evidence to undermine Breyer’s claim 

that it outright denied her request for a reasonable accommodation. Nor has it

shown—or even argued—that providing Breyer an assistant (or any other available 

accommodation) would have caused undue hardship. See Vinson v. Thomas, 288 

F.3d 1145, 1154 (9th Cir. 2002) (under the Rehabilitation Act, the defendant bears 

the burden of producing evidence that an accommodation is not reasonable after the 

plaintiff produces evidence that an accommodation is possible); Karczewski v. DCH 

Mission Valley LLC, 862 F.3d 1006, 1010 (9th Cir. 2017) (under Title III of the 

ADA, “[i]f Plaintiff establishes a prima facie case, then Defendant must make the 

requested modification unless it proves that doing so would alter the fundamental 

nature of its business” (quotation marks and citation omitted)). And yet, Pacific has 

defeated Breyer’s reasonable accommodation claim at summary judgment.

Thus, because I would remand the reasonable accommodation claim for trial, 

I respectfully dissent from this portion of the majority disposition.

2

 

2 I concur in the remainder of the disposition.