Guckenberger v. Boston University

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF JUDGMENT

INTRODUCTION

This is a class action 1 brought by students with Attention Deficit Hyperactivity Disorder (“ADHD”), Attention Deficit Disorder (“ADD”), and learning disorders (collectively “learning disabilities”) against Boston University (“BU”) under the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101 et seq. (West Supp.1995), the Rehabilitation Act, 29 U.S.C.A. § 794 (West Supp. 1997), and state law. 2 The class claims that BU discriminates against the learning-disabled by: (1) establishing unreasonable, overly- burdensome eligibility criteria for qualifying as a disabled student; (2) failing to provide reasonable procedures for evaluation and review of a student’s request for accommodations; and (3) instituting an across-the-board policy precluding course substitutions in foreign language and mathematics. BU contends that its eligibility criteria are reasonably designed to ensure that a student is entitled to the requested accommodations, that its review procedures are adequate, and that it has the right to require that a student meet certain levels of proficiency in math and foreign language before it confers a liberal arts degree.

Particularly with respect to the issue of course substitution, this class action concerns the interplay between the rights of learning-disabled students to reasonable accommodation and the rights of institutions of higher education to establish and enforce academic standards.

The plaintiff class now seeks injunctive and declaratory relief against the continued implementation of BU’s accommodations policy. Moreover, the named individuals 3 request compensatory damages for the harm allegedly caused them by the university’s purported violation of federal law, and by its alleged breach of the promotional promise to provide reasonable accommodations for students with diagnosed learning disabilities.

After a two-week bench trial, and an evaluation of the witnesses and evidence in this case, I have made numerous findings of fact and conclusions of law. To assist the reader, the Court’s fundamental conclusions are summarized as follows:

1. Federal law prohibits private and public universities, colleges and post-secondary educational institutions from discriminating against students with specific learning disabilities.

2. In the fall of 1995, BU imposed new documentation requirements that required students with learning disabilities to be retested every three years, and that provided that evaluations by persons who were not physicians, clinical psychologists, or licensed psychologists were unacceptable. These new documentation requirements, as initially framed, violated the ADA and the Rehabilitation Act because they were “eligibility criteria” that “screen[ed] out or tended to screen *115 out” students with specific learning disabilities, and because BU did not demonstrate that the requirements were necessary to the provision of educational services or reasonable accommodations.

3. The documentation policies have changed, however, since the start of this litigation. Because BU now permits a student to obtain a waiver of the three-year currency retesting requirement where medically unnecessary, I conclude that the retesting requirement, as currently framed, does not screen out or tend to screen out learning disabled students.

4. BU has also restructured its policy with respect to the qualifications of evaluators by permitting evaluators with doctorates in education (and in “other appropriate specialties”) to document students’ learning disabilities. Nevertheless, by precluding any evaluations by persons with masters degrees, BU’s present policy still unnecessarily screens out or tends to screen out some students with specific learning disorders who have been evaluated by adequately trained professionals. BU has not demonstrated that an evaluator with a masters degree and appropriate training and experience cannot perform the testing for an assessment of learning disability as well as an evaluator with a doctorate. Accordingly, BU has not proven that a doctorate-level of qualification is necessary to the provision of reasonable accommodations with respect to students with learning disorders.

5. However, with respect to students with ADD and ADHD, BU has demonstrated that its “bright line” policy of requiring current evaluation by a person with a doctorate is necessary because ADD/ADHD is often accompanied by co-existing physical and psychological conditions, is frequently treated by medications, and is a rapidly changing condition that usually remits over the period from adolescence through early adulthood.

6. The administration of BU’s new accommodations policy during the 1995-1996 school year violated the ADA and the Rehabilitation Act because it was implemented without any advance warning to eligible students, in such a way as to have the effect of delaying or denying reasonable accommodations. Moreover, BU President Jon Westling and his staff administered the program on the basis of uninformed stereotypes about the learning disabled.

7. However, because BU has recently hired an experienced clinical psychologist to review student accommodation requests, and because President Westling and his assistant Craig Klafter now review recommended accommodations primarily to ensure that they meet academic standards, the university’s current procedure for evaluating requests for accommodation submitted by students with learning disabilities does not violate federal law.

8. The plaintiff class has no private right of action to challenge BU’s violation of Rehabilitation Act regulations that require a university to adopt grievance procedures that incorporate appropriate due process standards.

9. In general, federal law does not require a university to modify degree requirements that it determines are a fundamental part of its academic program by providing learning disabled students with course substitutions.

10. Here, BU’s refusal to modify its degree requirements in order to provide course substitutions, particularly in the area of foreign languages, was motivated in substantial part by uninformed stereotypes by the President and his staff that many students with learning disabilities (like the infamous, nonexistent “Somnolent Samantha”) are lazy fakers, and that many evaluators are “snake oil salesmen” who overdiagnose the disability.

11. BU failed to -demonstrate that it met its duty of seeking appropriate reasonable accommodations for learning disabled students with difficulty in learning foreign languages by considering alternative means and coming to a rationally justifiable conclusion that the available alternative (i.e., a course substitution) would lower academic standards or require substantial program alteration. Rather, the university simply relied on the status quo as the rationale for refusing to consider seriously a reasonable request for modification of its century-old degree requirements.

*116 12. Plaintiffs have failed to demonstrate that a request to modify the degree requirement in mathematics is reasonable in light of the dearth of scientific evidence that any specific learning disability in mathematics (i.e.dysealculia) is sufficiently severe to preclude any student from achieving sufficient proficiency in mathematics to meet BU’s degree requirements with appropriate accommodations.

13. BU breached its contract with three of the named plaintiffs by failing to honor the express representations of its representatives about the students’ ability to document their disabilities and to receive accommodations from the university.

FINDINGS OF FACT

I. BU’s Recruitment of the Learning Disabled

BU is one of the largest private universities in the United States, with 20,000 students, 2,000 faculty members, and fifteen undergraduate and graduate colleges that offer 150 separate degree-granting programs. The College of Arts and Sciences is the largest college in the university. It has longstanding course requirements, including one semester of mathematics and four semesters of a foreign language. Degree requirements at all of BU’s colleges are approved by the Provost, the President, and the Board of Trustees.

Before 1995, BU was a leader among educational institutions in seeking to provide comprehensive services to students with diagnosed learning disabilities. The university recruited learning-disabled enrollees by establishing the Learning Disabilities Support Services (“LDSS”), a renowned accommodations program that functioned as a unit within BU’s Disability Services office (“DSO”). LDSS was often described as a “model program.” Through LDSS, the university declared a commitment to enabling students with learning disabilities to reach their maximum academic potential. For example, LDSS promotional brochures offered learning-disabled students various complimentary accommodations including notetaking assistance, and extended time on examinations. For a fee, students who enrolled at BU also had access to comprehensive services such as private tutoring and support groups, while potential enrollees of the university had the option of attending two different summer programs geared toward helping learning-disabled pupils make the transition from high school to college.

Before 1995, not only did LDSS often authorize in-class notetakers, tape-recorded textbooks, and time and one half on final examinations for students with documented learning disabilities (the so-called “vanilla” accommodations), 4 but LDSS staff also occasionally recommended that disabled students receive a course substitution for required mathematics and foreign language classes. For example, students who received an LDSS recommendation for a math substitution were allowed to take classes such as Anthropology 245 (“Anthropology of Money”), Economics 320 (“Economies of Less Developed Regions”), or Geography 100 (“Introduction to Environmental Science”) instead of the required math curriculum. Similarly, learning-disabled students who received a foreign language exemption might opt instead for one of several foreign culture courses including Art History 226 (“Arts of Japan”) or History 292 (“African Colonial History”).

In developing lists of “approved” course substitutions and recommending waivers of math and foreign language requirements for certain students, LDSS worked with the heads of the various academic departments at the College of Liberal Arts (“CLA”) (now called the College of Arts and Sciences) (“CAS”). However, neither LDSS nor CLA notified or sought the approval of the President, Provost, or any other member of BU’s central administration. Eighty-eight students requested foreign language waivers at CLA during academic years 1992-1993 and 1993-1994. 5 On average, BU granted ap *117 proximately 10 to 15 requests for course substitutions a year.

Prior to 1995, the process of applying for accommodations, including course substitutions, from BU was relatively straightforward. A learning-disabled student submitted to LDSS a description of her need for accommodation, a statement of her accommodations history, and a current medical or psycho-educational evaluation (one that had been conducted within three years of entering the university). Once the student’s documentation was filed, members of the LDSS staff determined whether accommodation was appropriate. In 1995, LDSS was permanently staffed with a full-time director, two assistant coordinators and a secretary, and it also employed several part-time learning disabilities specialists. Several of these administrators had specific training in special education and in the provision of accommodations to post-secondary students with learning disabilities.

If LDSS granted a student’s request for accommodation, the student would be notified. An LDSS staff member would also write letters, referred to as “accommodations letters,” to the student’s faculty members and to the dean of the student’s particular school explaining the student’s disability and recommending that the student be provided with the listed accommodations. Students were responsible for distributing these letters to their professors, and for meeting with their instructors to arrange the provision of in-class and exam accommodations.

The results of LDSS’s “marketing” to students with learning disabilities were pronounced. In academic year 1990-1991, 42 students who self-identified as learning disabled applied, 24 were accepted and two enrolled. Four years later, 348 such students applied, 233 accepted and 94 enrolled. In late 1995, 429 learning-disabled students applied to the university. As its reputation developed, BU was recommended by guidance counsellors and college manuals as a desirable academic setting the learning disabled. Between 1990 and 1996, hundreds of students with learning disabilities came to BU and registered for academic accommodations and/or comprehensive services through LDSS. By the 1995-1996 school year, BU had approximately 480 learning disabled students.

II. Westling Orders Change

Current BU president Jon Westling became the university’s provost (i.e., its chief academic officer) in 1985. A graduate of Reed College and a Rhodes Scholar, Westling has spent a total of 23 years at BU. He has served as both an administrator and as a teacher in the humanities core curriculum at the CLA. Westling holds no graduate degrees.

In the spring of 1995, Provost Westling 6 discovered that LDSS and CLA had been allowing students with learning disabilities to substitute other classes for the mathematics and foreign language eoursework that was otherwise a long-standing prerequisite to obtaining a baccalaureate degree in the College of Arts and Sciences. 7 Chagrined that LDSS was facilitating alterations of the core curriculum without university approval, Westling assigned his assistant and troubleshooter, Craig Klafter, a Ph.D in Modern History, to research learning disabilities in general and LDSS’s process of granting accommodations in particular. Confronting LDSS-director Loring Brinckerhoff, Klafter sought proof of the existence of a disability that prevented a student from learning a foreign language. Brinckerhoff referred Klafter to a book that he had co-authored concerning learning disabilities in post-secondary education. After reading BrinckerhofPs book and other secondary materials, Klafter determined that there was no scientific proof of the existence of a learning disability that prevents the successful study of math or foreign language.

As a result of Klafter’s investigation, in June of 1995 Westling informed W. Norman Johnson, BU’s Vice President and Dean of Students, and the College of Liberal Arts that the university was to cease granting *118 course substitutions, “effective immediately.” In addition, Westling told Johnson to direct LDSS to send all accommodation letters to the Provost’s office for review before they were distributed to the students or faculty. Westling made the decision to end the course substitution practice without convening any committees or panels, and without speaking to any experts on learning disabilities or to any faculty members on the importance of math and foreign language to the liberal arts curriculum. With the course substitution “bee” in his academic bonnet, Westling decided to become personally involved with the accommodations evaluation process, even though he had no expertise or experience in diagnosing learning disabilities or in fashioning appropriate accommodations.

III. “Somnolent Samantha”

At around the time that Westling ordered the first changes in the accommodations practice at BU, he also began delivering speeches denouncing the zealous advocacy of “the learning disabilities movement.” In addresses delivered in Australia and in Washington, D.C., Westling questioned the rapidly increasing number of children being diagnosed with learning disorders, and accused learning-disabilities advocates of fashioning “fugitive” impairments that are not supported in the scientific and medical literature. Although Westling’s orations recognized a need to “endorse the profoundly humane goal of addressing the specific needs of individuals with specific impairments,” his public addresses resonated with a dominant theme: • that “the learning disability movement is a great mortuary for the ethics of hard work, individual responsibility ^ and pursuit of excellence, and also for genuinely humane social order.”

At the beginning of one such speech entitled “Disabling Education: The Culture Wars Go to School,” which was delivered on July 22, 1995, Westling introduced a student named Samantha, who was, he said, a freshman in one of his classes at BU. Westling recounted how Samantha approached' him on the first day of class and how, “shyly yet assertively,” she presented a letter addressed to him from the Disability Services office.

The letter explained that Samantha had a learning disability “in the area of auditory processing” and would need the following accommodations: “time and one-half on all quizzes, tests, and examinations;” double-time on any mid-term or final examination; examinations in a room separate from other students; copies of my lecture notes; and a seat at the front of the class. Samantha, I was also informed, might fall asleep in my class, and I should be particularly concerned to fill her in on any material she missed while dozing.

Westling’s speech went on to name the student “Somnolent Samantha” and to label her “an unwitting casualty of the culture wars.” To Westling, Samantha exemplified those students who, placated by the promise of accommodation rather than encouraged to work to achieve their fullest potential, had become “sacrificial victims to the triumph of the therapeutic.” Throughout his twenty-page address, Westling reiterated the view that, by “seizing] on the existence of some real disabilities and conjur[ing] up other alleged disabilities in order to promote a particular vision of human society,” the learning disabilities movement cripples allegedly disabled students who could overcome their academic difficulties “with concentrated effort,” demoralizes non-disabled students who recognize hoaxes performed by their peers, and “wreak[s] educational havoc.” In closing, Westling remarked:

The policies that have grown out of learning disabilities ideology leach our sense of humanity. We are taught not that mathematics is difficult for us but worth pursuing, but that we are ill. Samantha, offered the pillow of learning disability on which to slumber, was denied, perhaps forever, access to a dimension of self-understanding.

Westling fabricated the student named Samantha to illustrate his point regarding students with learning disorders. Remarkably, at trial, Westling admitted not only that such a student never existed, but that his description of her did not even represent a prototype of the learning-disabled students he had encountered. Rather, Somnolent Samantha represented Westling’s belief — fuelled mostly by popular press and anecdotal accounts— *119 that students with learning disabilities were often fakers who undercut academic rigor.

As in the speech “Disabling Education,” since the spring of 1995, many of Westling’s addresses, statements, and letters regarding accommodations for the learning disabled have reflected his opinion that “hundreds of thousands of children are being improperly diagnosed with learning disabilities by self-proclaimed experts who fail to accept that behavioral and performance difficulties exist.” Even though Westling has referred to students with learning disabilities as “draft dodgers” and has repeatedly voiced his concern that students without established learning disorders might be faking a disability to gain an educational advantage, to date, there has not been a single documented instance at BU in which a student has been found to have fabricated a learning disorder in order to claim eligibility for accommodations.

IV. The Twenty-Eight Files

By the fall semester of the 1995-1996 academic year, BU was at a bureaucratic impasse. LDSS head Loring Brinckerhoff 8 was ignoring Westling’s directives, and LDSS was continuing the practice of approving course substitutions and granting accommodations without Westling’s involvement. Although Dean Johnson had specifically conveyed Westling’s orders to Brinckerhoff in a memo dated June 29, 1995, LDSS issued 58 accommodations letters (some of which allowed course substitutions) to students between July and September of 1995 without seeking Westling’s approval.

Irate that his mandates were being disregarded, in October of 1995, Westling directly ordered that all of the accommodations letters that LDSS had prepared but that had not yet been picked up by the affected students be delivered to his office. At the time, LDSS held 28 such letters. Westling also requested that he be given access to the documentation files for each of the students who were the subject of the 28 letters.

After receiving the letters and files, Westling and his staff reviewed the documentation to determine if the students’ evaluations actually supported LDSS’s recommended accommodations. Specifically, when reviewing the files, the provost’s office looked for current evaluations done by eredentialed evaluators, clear diagnoses, an evaluator’s recommendation listing specific accommodations, and an LDSS recommendation that was consistent with the recommendations made by the student’s evaluator. None of the provost office staff members who were involved in this review had any expertise in learning disabilities.

In a letter dated November 2, 1995, Westling communicated his analysis of the letters and files to Brinckerhoff’s supervisor, the director of the Office of Disability Services, William P. (“Kip”) Opperman. Of the 28 files, Westling determined that, “[i]n all but a few cases, the requested accommodations [were] not supported by the attached documentation.” With respect to several of the students, Westling reached the reasonable conclusion that there was actually “insufficient information” to determine whether or not students were entitled to accommodation because the documentation provided by LDSS was not current, did not support the requested accommodation, or was missing. 9 For example, in regard to one student, Westling states that the testing psychologist “does not say [the student] is incapable of learning a foreign language,” only that the student “ ‘has had a history of difficulty with foreign language.’ ” Rather than authorizing a course substitution as LDSS had done, Westling remarks that the student should be “encouraged to avail himself of the tutoring available to him through the University.” With respect to other students, Westling incorrectly determined that the documentation did not support a claim of learning disability.

After describing in detail the perceived shortcomings of each file, Westling’s letter to Kip Opperman concludes:

*120 [I]t is clear to me that the staff of the Learning Disabilities Support Services does not meet any reasonable standard of professional competence in their field. There is also considerable evidence that in addition to being incompetent, the staff has willfully and knowingly undermined University academic standards, distributed false information about University policy, and directly disobeyed University policy. I do not know whether it is possible to make Learning Disabilities Support Services perform its appropriate functions under its current management and with its current staff. While I am still considering this issue, I strongly advise you to take the corrective actions indicated in this letter.

Among the “corrective actions” Westling suggests throughout the letter are: (1) that students “be required to provide current evaluations” in light of federal guidelines stating that evaluations that are more than three years old are unreliable; (2) that the evaluations provide actual test results that support the tester’s conclusions; (3) that “[individuals who provide evaluations of learning disabilities should be physicians, clinical psychologists or licensed psychologists and must have a record of reputable practice”; (4) that all requests for accommodation contain an analysis by LDSS staff, an academic history of the student, and the student’s academic status at BU; and (5) that LDSS “should not misinform students that course substitutions for foreign language or mathematics requirements are available.” Although Westling had no evidence that learning disabilities changed or abated after students finished high school, he mandated that BU students provide current evaluations (i.e., those that are less than three years old) on the basis of regulations promulgated by the Department of Education for grades kindergarten through twelve. In establishing standards for the credentials of evaluators, Westling relied on consultations with doctors at BU’s School of Medicine that Klafter sought in late 1995.

In crafting the November 2, 1995 letter to Opperman, Westling did not intend for LDSS to deny all accommodations to the students whose files he reviewed. Rather, Westling hoped to castigate ODS officials regarding the office’s method of approving accommodation requests for students who claimed to have a learning disability, and to obtain better documentation prior to granting a requested accommodation. Nonetheless, as a result of Westling’s correspondence, Brinckerhoff sent a letter on behalf of LDSS to most of the 28 students whose files Westling had reviewed, denying the student’s request for accommodation and informing the student of his right to appeal the decision to the Provost. For example, in a letter dated December 3, 1995, addressed to named plaintiff Scott Greeley, Brinckerhoff states that Greeley’s request for accommodation “was reviewed” and that “the proposed accommodation of requiring the instructor to provide an opportunity to clarify test questions is not supported by the ‘educational therapist’ who evaluated you.” As a further example, in the fall of 1995, plaintiff Michael Cahaly received an accommodations letter from the LDSS office authorizing him to receive up to double time on his exams and to use a notetaker in his classes. However, in December 1995, he received another letter refusing accommodation because his evaluation was not conducted within the past three years. Cahaly had never been informed that there was any problem with the qualifications of his evaluator.

LDSS staff members later told several worried students to disregard Brinckerhoffs letter denying accommodations; however, no formal letter or statement retracting the denial of accommodations was ever issued.

V. Chaos

On December 4, 1995, Brinckerhoff sent a form letter to all BU students who had previously registered with LDSS. The letter, which purported “to inform [students] of recent policy changes at LD Support Services,” stated that the following requirements must be fulfilled by January 8, 1996, if students were to remain eligible for accommodations through LDSS:

(1) Students whose documentation was more than three years old “must be reevaluated in order to continue to receive services *121 and accommodations through the LDSS office;”

(2) Students must submit to LDSS documentation of a learning disability that has been prepared by “a licensed psychologist, clinical psychologist, neuropsychologist, or reputable physician;” and

(3) Students seeking accommodations for the spring semester of 1996 must provide LDSS with a high school transcript, a college transcript, and a current BU course schedule including course numbers, course descriptions, and the names and addresses of the professors.

Brinekerhoff distributed the letter to students just prior to final examinations for the fall semester of 1995. He did not forward a copy of the letter to Westling for his approval; nor did he check that it accurately conveyed Westling’s policy directives. When Westling learned of the letter, he requested that Norm Johnson issue a statement retracting some of the requirements for accommodation that Brinekerhoff had articulated.

On December 22, 1995, approximately three weeks after BrinckerhofPs correspondence, Johnson sent a letter to the learning-disabled students at BU. Johnson’s letter notified students that the university was deferring the deadline for submitting current documentation from January 8, 1996 — the date set forth by Brinekerhoff — -until August 31, 1996. Moreover, it sought “to correct a significant error in Dr. BrinckerhofPs letter” regarding the need for reevaluation. Although BrinckerhofPs letter stated that students with old documentation must be retested if they were to continue to receive assistance from LDSS, Johnson maintained (without explanation) that “[n]o such reevaluation will be necessary in order to continue receiving services from Learning Disability Support Services.” Johnson also expressed his “regret” that students “were notified of these proposed changes during the examination period,” and he apologized “for any inconvenience.”

Throughout the first semester of the 1995 — 1996 school year, learning-disabled students, parents and professors received mixed and inconsistent messages from university administrators regarding the requirements for seeking and receiving academic accommodations at BU. As a result of the confusing and chaotic climate occasioned by BU’s new accommodations policy, there was a substantial reduction in the number of students with self-identified learning disabilities who have attended BU since 1995. Whereas 94 students with self-proclaimed learning disabilities enrolled at BU in 1994, the number of such students had dropped to 71 by the 1996 — 1997 academic year.

VI. Resignation, Reorganization, and Restructure

Early in 1996, several members of the disability services office resigned, including Brinekerhoff and Opperman, and the Provost’s office became the primary decision maker in determining whether a student was to receive an accommodation for a learning disability. In evaluating requests for reasonable accommodations, the Provost’s office consulted with specialists like neuropsychologists or the remaining staff at LDSS. With the LDSS office virtually unstaffed, the university undertook to restructure the entire disability services department. Instead of having a self-contained unit within the disability services office to evaluate the accommodations requests of learning-disabled students, the new Office of Disability Services (“DS”) was structured to manage accommodations for all students with disabilities, whether physical, mental, or in learning. The reconfigured DS staff consisted of a full-time director, an assistant director, a clinical director of learning disability support services, an LD coordinator, a coordinator of interpreter services, and two senior staff assistants. The office was also designed to employ several part-time learning specialists, tutors, interpreters, readers, and notetakers.

On March 25,1996, BU hired Allan Macurdy, an adjunct assistant professor of law, as the new DS director. Macurdy, a quadriplegic, is a specialist in laws affecting the physically disabled. Soon after his arrival, in the absence of a complete staff, Macurdy personally undertook to review the accommodation requests of students with learning disabilities, even though the student files were *122 in complete disarray (many were inaccurate, incomplete or missing), and neither he nor the other newly-hired DS staff members had any expertise in diagnosing learning disabilities or in fashioning appropriate accommodations. 10 Between March of 1996 and January of 1997, Macurdy’s office reviewed over 80 student files and made recommendations about the requested accommodations. During this time, BU also retained neuropsychologists with expertise in learning disabilities to review student files and make accommodations determinations with regard to learning-disabled students. All recommendations for accommodations made by the DS staff were forwarded to the Provost’s office for approval.

By May 31, 1996, the Office of the Provost at BU had reviewed DS recommendations for 77 learning-disabled students. Students whose requests for accommodation were denied by Westling’s office were often told to contact the Provost in order to seek reconsideration. However, because there was no established appeal procedure, students and their parents were occasionally not given any information at all regarding further review. As a matter of informal, unwritten policy, the only appeal from the denial of a requested accommodation was to seek reconsideration by the Provost. Students with physical disabilities grieved any denials through the Section 504 procedure handled by the Office of the Dean of Students.

VII. Present Accommodations Process

In January of 1997, BU hired Dr. Lorraine Wolf as the new clinical director for learning disability support services. Before being appointed, Wolf was a practicing neuropsychologist and an assistant professor of Clinical Psychology at Columbia University. Wolf had also done consulting work for BU since November of 1996.

From early 1997 until the present, Wolfs responsibilities as clinical director have included reviewing the documentation submitted by learning-disabled students and making recommendations regarding the accommodations that should be provided to a student on the basis of a learning disability. Although Wolf officially began the clinical director’s task of reviewing student files in January, she did so remotely — from her office in New York City 11 — until late May, when she completed her maternity leave and moved to Boston to begin her full-time, in-house position.

At present, students with documented learning disabilities at BU may request accommodations such as reduced course loads, use of special computer technology, books on tape, extra time on examinations in a distraction-free environment, and note takers. BU’s eligibility requirements for receiving such accommodations are summarized as follows:

(1) Learning-disabled students must be tested for a learning disorder by a physician, licensed clinical psychologist or a person with a doctorate degree in neuropsychology, educational or child psychology, or another appropriate specialty. The evaluator must have at least three year’s experience in diagnosing learning disorders.

(2) Documentation must be current, as it is recognized by BU for only three years after the date of the evaluation. A learning-disabled student whose documentation is too old at the time he matriculates, or whose documentation “expires” during his time at BU, must be reevaluated (including retesting). If retesting is deemed unnecessary by the student’s evaluator, the evaluator is *123 required to fill in a form explaining why it is not “medically necessary.”

The procedure for requesting and receiving an accommodation for a learning disability at BU is as follows. First, a student requesting accommodations submits an application to the DS office. 12 Wolf reviews the submitted documentation and makes a determination regarding the accommodations that are appropriate for the student. Then, the student’s file and Wolfs recommendations are forwarded to the President’s Office. Klafter reviews each student’s documentation for consistency and, when necessary, discusses with university faculty and administrators how the recommended accommodation will affect a particular academic program or course of study. If the President’s Office accepts Wolfs accommodation recommendations, as is mostly the case, the DS office notifies the student. Generally within two weeks of the request, the DS office also generates accommodations letters to be given to the affected faculty members.

As of April 1997, the President’s office endorsed most of Wolfs recommendations for a grant or denial of a request for accommodations due to a learning disability. In several situations, Westling consulted with Wolf and with the relevant department head and denied a requested accommodation where he believed the request was inconsistent with academic standards. For example, Westling rejected a request for a notetaker by a learning-disabled ROTC student in a course on manufacturing engineering; however, he authorized the student’s use of a tape-recorder. In other situations, despite initial hesitation, Westling agreed to a note-taker for a student studying social work and a calculator for a student in a math course. In the Wolf era, the interaction between the President’s Office and DS in evaluating student files focuses on determining which modifications of academic requirements are appropriate for a given learning-disabled student, rather than on ascertaining the nature and extent of a student’s learning disability.

BU admits that it has yet to articulate a single, specific process for students to follow if their request for accommodation is denied. In this litigation, the university takes the position that either the appeal to President Westling or the university’s Section 504 grievance procedure is adequate to address student concerns.

VIII. Impact on Individual Students

The experiences of several of the plaintiffs in attempting to secure accommodations from BU under the new accommodations policy are summarized as follows. 13

A. Elizabeth Guckenberger

Elizabeth Guckenberger was diagnosed with dyslexia in 1990 during her freshman year at Carleton College. As an undergraduate she received double time on her examinations, exemptions from her language requirements, and the option of a notetaker. Based on her 1990 diagnosis, Guckenberger also received testing accommodations for the LSAT. With these accommodations, Guckenberger was successful enough academically to be accepted to BU’s School of Law in the spring of 1993.

Guckenberger enrolled at BU Law School in the fall of 1994. She chose BU in part because her letters of acceptance specifically acknowledged her learning disorder and stated that the university would accommodate *124 her “to the full extent required by law.” Guckenberger also spoke to Brinckerhoff before she matriculated about the services provided by LDSS.

To document her disability as required, Guckenberger submitted to LDSS the evaluation that had been prepared in 1990, when she was first diagnosed, by a learning disabilities consultant from the Dyslexia Institute of Minnesota. Based on this documentation, LDSS determined that Guckenberger “has problems with both visual and auditory processing,” and recommended to the Dean of Academic Affairs at the Law School that she be given notetaking assistance, a reduced course load, priority registration for a section with afternoon classes, and time and one half on exams in a quiet, distraction-free room. During her first year of law school, Guckenberger received these accommodations without incident.

Early in November of 1995, during the first semester of her second year, Guckenberger went to LDSS to verify that she would be receiving accommodations for her fall examinations. Brinckerhoff informed her that, pursuant to the new accommodations policy, she would have to be completely retested for dyslexia before exams began (within the ensuing three weeks) in order to receive accommodations. Stunned, Guckenberger asked for the names of testing specialists who would be acceptable to the school. Brinckerhoff told her that no such list was available.

Confused and upset, Guckenberger arranged a meeting with Kip Opperman, BU’s Director of Disability Services. Opperman told her that she definitely needed to be retested due to the insufficiency of her documentation; however, he could not provide her with a formal statement of the new policy or with the names of any doctors approved by LDSS. Guckenberger then met with Law School Associate Dean Beerman, who told her that accommodations would be made for her impending examinations as long as she made an effort to comply with the new accommodations policy. Over the next few days, Guckenberger contacted two qualified LD specialists; however, neither doctor could evaluate her until the middle of January. Guckenberger notified BU administrators Opperman and Beerman that a reevaluation before the end of the semester would not be possible.

In early December of 1995, Guckenberger received Brinckerhoff’s letter stating that she had to be retested by January 8, 1996. At the end of the month, she received Norman Johnson’s letter deferring the retesting deadline until August of the following year.

In the months that followed, Guckenberger and a few of her colleagues met with Klafter to discuss BU’s new accommodations policy for students with learning disabilities. Klafter expressed the concern about students who might be “faking” a learning disorder to procure special accommodations. At some point, he referred to non-licensed, learning-disabilities specialists as “snake oil salesmen.” Klafter told her that it was significant that mostly “rich kids” had diagnoses of learning disorders and expressed concern that the diagnoses were not genuine. Then, without clarification, Klafter told the group that not all learning-disabled students with insufficient documentation needed to be completely retested under BU’s new policy.

On April 10, 1996, Guckenberger spoke with Carolyn Suissman, an LDSS coordinator, and was told that she must be retested in order to comply with BU’s new requirements. Although she was unsure of whether retesting actually was required, to avoid future problems Guckenberger arranged for a complete reevaluation by a licensed clinical psychologist beginning in late April of 1996. The retesting process spanned four days and cost over $800.00. The test results confirmed that Guckenberger had dyslexia, and the psychologist, who had been recommended by BU, suggested the same accommodations that Guckenberger had received during her first and second years of law school.

Guckenberger received all of the accommodations that she had requested throughout her time at BU Law School, including being allowed to take one class less per semester than the average law student. She also received time and one-half on her examinations, a distraction reduced environment in *125 which to take examinations, and the use of a notetaker. Nevertheless, Guckenberger, who has a history of depression, suffered anxiety during the 1995 — 1996 school year after her accommodations were threatened as a result of BU’s new documentation requirements. During the spring semester of 1996, she organized the Law Disability Caucus, a student group that is a co-plaintiff in this class action, to confront the university about its treatment of learning-disabled students seeking reasonable accommodation.

Guckenberger has apparently rebounded well. She is currently completing a joint-degree program, and is working for the office of the United States Attorney in Boston this summer.

B. Avery LaBrecque

A school psychologist identified Avery LaBreeque’s language-based learning disability when LaBrecque was in the first grade. The disorder, which impairs her ability to process, memorize, and understand the mechanics of languages, prevented LaBrecque from being successful at reading, mathematics, and spelling. At a very early age, she began a twelve-year odyssey of private tutoring.

LaBrecque took her first foreign language class in the ninth grade. Because of her extremely low performance, her Latin teacher recommended that she be exempted from the high school’s language requirement, and be formally tested for a learning disability. In 1990, a neuropsychologist’s evaluation revealed that LaBrecque had a language-based learning disorder as well as Attention Deficit Hyperactivity Disorder (“ADHD”).

In high school, LaBrecque was placed in a special education program that met once a day. In her regular courses, she received accommodations such as extra time on examinations and a separate testing room. Although she was completely exempted from the foreign language requirement, she nonetheless continued to receive private tutoring for her regular classes.

In 1992, LaBrecque attended BU’s “Taste of College” summer program for high school students with learning disorders. During the program, Loring Brinckerhoff informed her that, even though she did not take foreign language in high school, she was still eligible for admission into a competitive university such as BU. Brinckerhoff also discussed the option of substituting cultural courses for BU’s foreign language requirement. At the conclusion of the summer program, LaBrecque was retested by a psycho-educational clinician and a school psychologist at the recommendation of support service administrators at LDSS. The specialists confirmed that LaBrecque had a language-based learning disorder and ADHD.

LaBrecque entered the College of General Studies (“CGS”) at BU as a freshman in 1993. 14 For her first two years, she received double time on exams in a separate room, a spellchecker for exams, taped lectures, and a note taker. In the fall of 1995, she transferred to the College of Liberal Arts and four semesters of foreign language became a required part of her course of study. Seeking a course substitution through LDSS, LaBrecque submitted an application to LDSS and took a foreign language aptitude test in August of 1995 to determine i