Robert T. McGregor v. Louisiana State University Board of Supervisors

Robert T. McGregor suffered permanently disabling head and spinal injuries from a series of unfortunate accidents that occurred in 1968, 1972, and 1979. 2 His injuries have required and continue to require extensive treatment and a number of surgical procedures. Despite these setbacks, McGregor was determined to pursue a legal career. He took the LSAT in October 1987; his score was a 26. Upon recommendation of Professor Joseph from the Louisiana State University Paul M. Hebert Law Center (“Law Center”), McGregor took the LSAT a second time. He scored a 33. This score, combined with his undergraduate grade point average (“GPA”) of 2.6, gave him an index of 93. The index cutoff for admission at the Law Center was 90. The Law Center admitted McGre-gor as a law student in 1988.

This action began after McGregor repeatedly failed to achieve a passing cumulative GPA and after the Law Center refused to allow McGregor to advance to the junior year. Eventually, the district judge granted the defendants’ motions for summary judgment and dismissed the case in its entirety. McGregor filed a timely notice of appeal. This Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1291.

I. REHABILITATION ACT

Section 504 of the Rehabilitation Act of 1973 provides that:

[n]o otherwise qualified individual with handicaps ... shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity[, including those operated by a college, university, or other postsecondary institution, or a public system of higher education,] receiving Federal financial assistance.

29 U.S.C. § 794. No one in this case disputes that McGregor is handicapped or that the Law Center receives federal funding. The question here is whether McGregor is an “otherwise qualified individual” who has been denied the benefits of the Law Center’s program solely because of his handicap. McGregor suggests that he is otherwise qualified by virtue of admittance into the Law Center’s program. McGregor is correct that his undergraduate record and LSAT score render him otherwise qualified for admission. In argument, McGregor often ignores the difference between being otherwise qualified for admission and being otherwise qualified for retention. Many students, handicapped or not, who qualify for admission into law school flunk out. They are not qualified for retention. The question here is whether McGregor is otherwise qualified for retention in the Law Center’s program. 3

*855 Retention requirements generally take the form of minimum cumulative GPAs in a designated curriculum. Freshman students at the Law Center must attend full-time and achieve an overall average of 68 in the designated freshman course load in order to return for the junior year. A separate set of academic requirements, however, apply in the first freshman semester — a student must achieve at least an overall average of 65 to proceed to the second semester. A student who makes less than a 65 average during the first freshman semester may not attend the second semester and must apply for readmission. Ordinarily, the student is not readmitted for the following fall, but must wait an additional year to return.

To be otherwise qualified for retention, McGregor must be capable of satisfying the academic and technical requirements set by the Law Center with the aid of reasonable accommodations. 45 C.F.R. § 84.3(k)(3) (1992); Brennan v. Stewart, 834 F.2d 1248, 1262 (5th Cir.1988). 4 Judge Duplantier essentially found that despite the Law Center’s reasonable accommodations, McGregor failed to meet the academic standards and was not otherwise qualified. Moreover, the judge determined that the additional accommodations McGregor sought were not reasonable because they required the Law Center to alter substantially its academic standards.

We will affirm the district judge’s grant of summary judgment if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When reviewing the record on summary judgment, we must draw all reasonable inferences in favor of McGregor, the nonmoving party. Harbor Ins. Co. v. Urban Constr. Co., 990 F.2d 195, 199 (5th Cir.1993). To avert summary judgment, the nonmoving party must present specific facts showing a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The parties agree as to what accommodations were and were not made. The heated argument concerns their reasonableness. As we recognized in Brennan, whether a handicapped person is otherwise qualified, and consequently whether the accommodations are reasonable, are questions of fact. Brennan, 834 F.2d at 1260. So we can affirm the lower court’s findings only if reasonable men could not differ from the conclusions that the Law Center provided reasonable accommodations and McGre-gor was not otherwise qualified. Id. To decide this, we must review exactly what the Law Center did with McGregor.

A. Accommodations Made

Prior to freshman registration in the fall 1988, McGregor asked that the Law Center accommodate his disability by permitting him to be a part-time student. The Law Center said no and told him that it had made an academic decision that a full-time freshman schedule is required. Instead, the Law Center made two accommodations for the upcoming freshman year: a handicapped parking permit and, upon McGregor’s request toward the end of the first semester, additional time to complete his Criminal Law Examination. 5

McGregor’s overall GPA for the first semester was 61, below the required 65. McGregor, therefore, was supposed to sit out the second semester, reapply for admission, and wait an additional year to return. Instead, during the spring 1989 semester, the Law Center permitted McGregor to audit Professor Devlin’s Constitutional Law I, along with a Legal Writing and Research class. 6 The Law Center also assigned Pro *856 fessor-Devlin with the specific task of providing McGregor with concentrated and individualized tutorial instruction. Devlin attested that he spent one hour each week working with McGregor outside class, which is considerably more time than he has ever spent with any other student. McGregor received a grade of 70 in Constitutional Law I and passed Legal Writing and Research. However, according to McGregor, these passing grades were at the expense of losing full use of his legs. Toward the end of the spring semester, McGregor’s treating physician, Dr. Charles Kennon, authorized a wheelchair, apparently only for endurance purposes. Regardless of the reason, McGregor needed a wheelchair by May 1989.

The Law Center eventually readmitted McGregor as a freshman on scholastic probation for the fall 1989 semester, without waiting an additional year after reapplying to return. In a letter dated June 27, 1989, Professor Howard W. L’Enfant, then also the Chairman of the Admissions Committee, informed McGregor of his readmittance under the following conditions:

1. You shall forfeit all credits and quality credits previously earned and shall begin anew as a first year student in the curriculum in effect for 1989-90.

2. You shall be on scholastic probation, and required to earn an average of 68 or better during each of the next two semesters.

3. You shall carry a full load of work during each of the next two semesters.

4. You will not be permitted to engage in any outside work during the fall semester 1989 and spring semester 1990.

In addition to early readmittance, the Law Center made other adjustments for McGre-gor during this next semester. Prior to the 1989-90 academic year, the Law Center sent McGregor a proposed schedule of first year classes. It is undisputed that classes were switched so that he would attend them in the new instead of the old building, for easier access with a wheelchair. To accommodate further his wheelchair, the Law Center acquired special handicapped tables for the classrooms and removed the inner door in the first floor bathroom. Throughout the year, many of McGregor’s professors assisted him with his academic work outside of class. 7

In the fall 1989, McGregor was allowed to take three of his examinations at home. In the fourth course (Criminal Law), he was allowed eight hours, instead of the usual four, to complete the examination. When examinations came around in the spring 1990 semester, McGregor requested the same arrangements for at-home examinations. Katherine Spaht, as Vice-Chancellor, responded to McGregor’s requests by providing alternative accommodations that the Law Center determined were “reasonable while still maintaining the integrity of the examination process.” The Law Center gave McGre-gor: (1) extra examination time; (2) a choice of taking the exams on the first or third floor; (3) a room equipped with a handicapped table, a special bench from the library, a typewriter and/or dictaphone; (4) a student proctor to take care of his personal needs as well as assisting him with the men’s rest room door; (5) permission to eat and drink in the room to maintain his sugar level.

McGregor did not meet the Law Center’s probationary requirements. Although McGregor received a 70.2 in the fall semester, he received an average of 65.53 in the spring semester. The acceptable minimum GPA on probation for each semester is a 68. *857 McGregor again faced flunking out of law school. And again, McGregor petitioned the Law Center for more accommodations.

In response to the spring 1990 petition, the Law Center agreed to readmit McGregor for the 1990-91 academic year as a first year student subject to two conditions. These conditions were first spelled out in the August 20 letter sent by Katherine Spaht, Vice-Chancellor, to McGregor:

1. permission and encouragement to audit the course in Criminal Law during the fall semester 1990, if, your physical condition permits; and

2. during the second semester, a course load for credit of the four courses in which you made a grade of less than 68 in spring, 1990 (Obligations, Property, Constitutional Law I, Torts II), unless a committee to be appointed by the Chancellor alter[s] the conditions of readmission for the second semester. You will be timely notified of any such change.

McGregor was unsatisfied and sent a letter renewing his demands for advancement to the junior level in addition to a reduced schedule. For the first time, he threatened litigation. The Law Center responded to each of the items listed by McGregor as a “good faith offer to settle this controversy.” The Law Center stood by their August 17, 1990 decision that McGregor be readmitted as a freshman. The faculty committee, however, did perhaps the next best thing and reduced his schedule to make room for junior level courses. Under the new modified schedule, McGregor needed to take only Constitutional Law and Obligations in the spring 1991, scheduled so that he had a day between classes for rest or treatment. Torts and Civil Law Property could be taken in the spring 1992. Moreover, McGregor could take one junior preference course in the summer 1991 and one or two junior preference courses in the fall 1991. If McGregor attained an average of at least 68 in the four first year courses, he could proceed to the junior year; grades in the junior preference courses would not be considered in determining his eligibility to enroll in any semester up to and including the spring 1992 semester. The faculty committee also determined that McGregor could take his examinations at home in the presence of a proctor from the Law Center. After they wrote, McGregor sued them.

B. Accommodations Required

McGregor attacks the accommodations because they did not directly address his disability, i.e., fatigue and pain that impaired his ability to learn, and argues that the Law Center discriminated against him by insisting on a full-time schedule, in-class examinations, and advancement only upon achievement of a 68 average in each freshman semester. He says this was equal treatment which resulted in unequal opportunity to participate in the law program. The Law Center says that they “bent over backward” to help McGre-gor; that what McGregor seeks is to blame the Law Center for his mental ineptitude; and that his additional requests for accommodations amount to demands for preferential treatment or a substantial modification of its program, which is not required by law.

The Supreme Court’s decision in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), sets the stage for almost every § 504 handicap discrimination suit involving post-secondary educational programs. 8 There, *858 the Supreme Court emphasized that § 504 proscribes use of the “mere possession of a handicap ... [as] a ground for assuming an inability to function in a particular context.” Id. at 405, 99 S.Ct. at 2366. Here, the Law Center has not and does not assume that McGregor cannot function in its legal educational environment. Unlike the plaintiff in Davis, McGregor gained admission to the law school program. Some accommodations were made to allow McGregor to participate and to remain a participant in the program. Despite the Law Center’s joint efforts and McGregor’s repeated attempts, McGregor did not achieve the necessary GPA to advance to the junior year. McGregor’s repeated attempts demonstrate that he cannot function successfully in the Law Center’s program. 9

McGregor argues that he could succeed in law school if the Law Center accommodated him with (1) a part-time schedule and (2) at-home examinations. 10 As proof of his abilities, he points to the spring 1989 semester (during which he earned a 70 in Constitutional I and passed Legal Writing and Research) and the fall 1989 (during which he received a 70.2 cumulative GPA with three at-home examinations and extra time on the fourth in-class examination). First, we are unpersuaded that this is competent evidence that McGregor can meet the academic demands set by the Law Center on a part-time schedule. McGregor received these passing scores after having a second crack at the courses. Second, his ability to pass given a part-time schedule is not dispositive of the issue here. We agree with the Law Center that many more students could succeed in law school on a part-time schedule. While other law schools in Louisiana and in other states have part-time students, the Law Center has made an academic decision to require that all freshman students carry a full-time course load. Any deviation from this constitutes an accommodation for McGregor’s disability. We must decide whether § 504 requires the Law Center to accommodate McGregor either by giving him a part-time freshman schedule or at-home examinations or by advancing him to the junior year despite his failure to satisfy the minimum standard GPA, and later the minimum probationary GPA.

The Supreme Court in Davis made clear that § 504 does not mandate that an educational institution “lower or [] effect substantial modifications of standards to accommodate a handicapped person,” assuming such standards are reasonable. Id. at 423, 99 S.Ct. at 2377. This rule was crafted in an effort to balance the institution’s right to decide the basic requirements pertinent to its program and the handicapped student’s right to participate. Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985). The extent of an institution’s affirmative duties to accommodate handicapped individuals is far from clear. The best that opinions following Davis have been able to state definitively is that an educational institution must make “reasonable,” but not “fundamental” or “substantial” modifications to accommodate the handicapped. E.g., Brennan, 834 F.2d at 1261. McGregor, therefore, is entitled to the requested accommodations only if he can demonstrate that the accommodations constitute reasonable deviations from the Law Center’s usual requirements “which meet[] his special needs without sacrificing the integrity of the [Law *859 Center’s] program.” 11 However, absent evidence of discriminatory intent or disparate impact, we must accord reasonable deference to the Law Center’s academic decisions. Brennan, 834 F.2d at 1261 (quoting Doe v. Region 13 Mental Health-Mental Retardation Comm’n, 704 F.2d 1402 (5th Cir.1983) and Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)).

The record on summary judgment is devoid of evidence of malice, ill-will, or efforts on the part of the Law Center to impede McGregor’s progress. Therefore, we must accord deference to the Law Center’s decisions not to modify its program if the proposed modifications entail academic decisions. McGregor characterizes the proposed changes as reasonable schedule modifications since the ABA accredits programs with part-time or evening students and the Law Center’s bulletin allows such deviation in exceptional circumstances. This does not persuade.

First, whether the ABA accredits part-time programs is not determinative of reasonableness under the Rehabilitation Act, and we refrain from giving ABA accreditation such adjudicatory effect. Second, the fact that the Law Center has recognized in its Bulletin that exceptional circumstances may prompt the institution to alter its full-time attendance does not mean that such an alteration is not substantial. Given the Law Center’s history and admittance practices, the full-time attendance requirement is critical to their program and the requested deviation would be a substantial modification under any circumstance. 12 Whether the Law Center yields to such a request and whether § 504 requires the Law Center to yield to such a request are two different questions.

We conclude that the Law Center’s decisions to require full-time attendance and in-class examinations for first year students are academic decisions, ones which we find reasonable in light of the Law Center’s admittance practices. The first year courses are specifically chosen to simulate the same challenges found in the practice of law, i.e., to assess and assimilate various legal theories in an intelligible manner. The Law Center has structured an intensive program with *860 high academic standards, which it believes is best equipped to produce high quality lawyers. Essential to its program is a level playing field for all students: First year students cannot engage in outside work during the semester; they must take the same required courses in the same semesters; the examinations are given in class at the same time for each class section; and the final grades are generally -based entirely on the final examinations.

The Law Center’s program, though strict, is effective by some accepted measures. The Law Center has had and continues to have the highest bar passage rate in Louisiana. McGregor proposes that the Law Center create for him a law school program, either with a part-time schedule and at-home examinations or with lowered passing GPA requirements. These additional accommodations clearly force the Law Center either to lower its academic standard and pass McGregor to the next level or to compromise the reasonable policy of its academic program and allow McGregor to attend part-time and take his examinations at home. Section 504 does not require this much. 13

The Law Center proved, by way of L’En-fant’s affidavit, that no other student has ever been allowed to audit a course in the second semester after failing the first semester, and that “no other student, under any circumstances, has ever had a professor assigned to him for the specific purpose of concentrated tutorial instruction on a one on one basis.” Also, no student other than McGregor has ever been permitted to take examinations at home, except in the junior or senior level courses in which all students took the examinations at home. Furthermore, no student has ever received the additional accommodations requested. Although the Bulletin allows for schedule changes under exceptional circumstances, the Law Center has not, in fact, permitted it and says that even under exceptional circumstances, a student must have proven his analytical abilities to succeed in the law program before receiving such an accommodation.

Viewing the undisputed facts, we can conclude only that the Law Center reasonably accommodated McGregor’s disability and that the additional accommodations, if granted, would constitute preferential treatment and go beyond the elimination of disadvantageous treatment mandated by § 504. Brennan, 834 F.2d at 1259-60. We agree with Judge Duplantier that despite the reasonable accommodations provided, McGregor did not achieve the minimum cumulative GPA as required under the academic standards set by the Law Center. McGregor, therefore, is not an otherwise qualified individual who has been denied the benefits of the Law Center’s program solely because of his handicap. , We affirm the summary judgment in favor of the defendants on the Rehabilitation Act claims.

C. Accessibility Requirements

Judge Duplantier recognized that McGregor’s demands regarding the bathroom door and entrance ramp at the Law Center “probably describe reasonable accommodations; however, these suggested changes standing alone would certainly not affect plaintiffs ability to meet the Law Center’s academic requirements.” 14 McGregor *861 contends that Judge Duplantier erred by considering the accessibility and physical barrier issues in conjunction with reasonable accommodations. We disagree.

McGregor himself intermingles the two issues. The crux of McGregor’s claim here is that the Law Center violated § 504 with respect to physical access to its facility which resulted in his poor academic performance. Also, on appeal, McGregor argues that the fact question is “whether or not the physical barriers and lack of accessibility were sufficient to prevent plaintiff from achieving the academic requirements of the Law Center in a given semester.”

More importantly, the fact that the Law Center facility was completed in 1969, prior to June 3, 1977, the effective date of the regulations regarding accessibility standards, changes the focus from the accessibility of the facility to the accessibility of the program. According to the regulations, only facilities where construction commenced after the effective date of the regulations must “be designed and constructed in such a manner that the facility or part of the facility is readily accessible to and useable by handicapped persons.” 45 C.F.R. § 84.23(a) (1992) (section entitled “New Construction, Design and Construction”). Because there has been no construction on the Law Center since 1969 (other than for ordinary maintenance and repair), a separate set of regulations applies to the Law Center. The Law Center must:

operate each program or activity ... so that the program or activity, when viewed in its entirety, is readily accessible to handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.

84 C.F.R. § 84.22(a) (1992) (section entitled “Existing Facilities, Program Accessibility”) (emphasis added); see 45 C.F.R. § 84.22(a) (almost identical language). 15 So the issue raised is not whether the Law Center facility is accessible, but whether the program is accessible. 16 This entails more than a determination that the physical accommodations were reasonable; a court must determine whether McGregor could access the program had the physical changes been made.

Judge Duplantier decided that while the suggested changes were probably reasonable, they “would certainly not affect plaintiffs ability to meet the Law Center’s academic requirement.” Judge Duplantier, therefore, properly considered the question of accessibility. Furthermore, his conclusion is supported by the undisputed facts.

The record reflects that the Law Center’s program was accessible to McGregor and that physical barriers did not prevent him from being otherwise qualified for retention. McGregor was not in a wheelchair during the first freshman semester when he first flunked out. He began to use the wheelchair toward the end of the spring 1989 semester in which he audited courses. The Law Center provided McGregor with a key to an additional elevator which accessed all floors and a ramp at the main entrance. The Law Center also acquired a handicapped table and scheduled McGregor’s classes in the new building which was more accessible than the old building. The Law Center removed the inner door on the first floor bathroom. A special bench, chosen by McGregor, was provided to aid McGregor during examinations, as was his own student proctor. 17 In addi *862 tion, the Law Center made special arrangements for examinations, tutoring, auditing courses, and early readmission. We agree with Judge Duplantier that the suggested additional changes to the Law Center’s physical facility would not affect plaintiffs ability to pass muster at the Law Center and, consequently, would not affect his ability to participate in the Law Center’s program. The judgment regarding program accessibility is affirmed.

II. QUALIFIED IMMUNITY

The district court found that defendants are entitled to qualified immunity from claims brought against them in then-individual capacities for violation of the Rehabilitation Act. 18 Qualified immunity shields state officials, performing discretionary functions, from civil liability for actions which reasonably could have been thought to be consistent with rights allegedly violated. Duckett v. City of Cedar Park, 950 F.2d 272, 279 (5th Cir.1992). Qualified immunity, however, will not protect state officials if a plaintiff can show that they “violated clearly established statutory or constitutional rights of which a reasonable person would have known.” Brown v. Texas A & M Univ., 804 F.2d 327, 332 (5th Cir.1986). In order to trigger this exception, McGregor must show that his right to the requested accommodations was clearly established in a particularized, fact-specific sense so that a “reasonable official would understand that what he is doing violates that right.” Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th Cir.1988).

McGregor initially urges that the “highly learned” defendants did not bother to research the federal statutes and regulations, but instead chose to “play it by ear” as to what accommodations were reasonable. McGregor contends that had the defendants researched the law, they would have discovered that § 504 required them to accommodate him in the manner requested. McGre-gor says that Professor McGough’s memorandum (to Vice Chancellor Spaht) reviewed the merit of McGregor’s petition to proceed to the junior year and concluded that he “appear[s] to have a legitimate complaint” under the Rehabilitation Act.

This is not so. The memorandum does not support the conclusion that the right to the requested accommodations was clearly established so that a reasonable person would know that denial of his petition violated his statutory and constitutional rights. In fact, it supports the opposite conclusion. In the memorandum, Professor McGough said (quite correctly) that “there is no reported case ... which construes the programmatic adjustments which an educational institution may be called upon to make.” Moreover, the memorandum opined (maybe not so correctly), “The reported appellate cases construing the federal Rehabilitation Act are all quite bizarre and clearly distinguishable from Mr. McGregor’s case.”

The contour of a postsecondary institution’s affirmative duty to accommodate a handicapped student is shaped on a case-by-case basis. McGough’s memorandum is proof of this. McGregor conceded at oral argument that the Fifth Circuit has not yet adjudicated whether § 504 requires a post-secondary educational institution to accommodate a handicapped individual with either a part-time schedule, at-home examinations, or advancement to the next level without successfully completing the first level courses. We find that McGregor’s right to the requested accommodations was not clearly established in a sufficiently particularized manner so that the defendants would have understood that denial of McGregor’s petitions violated that right. We affirm the district judge’s dismissal of the Rehabilitation Act claims brought against the defendants in their individual capacities. 19

*863 III. FOURTEENTH AMENDMENT DUE PROCESS CLAIMS

McGregor amended his complaint to add due process claims. 20 These claims are that the Law Center deprived McGregor of due process on three petitions submitted to the Law Center: (1) his June 5, 1989 petition to be re-admitted to the law school on a part-time basis; (2) his spring 1990 petition to attend law school on a part-time basis; and (3) his spring 1990 petition to advance to the junior level. McGregor alleges that the Law Center denied him due process by not providing a written procedure or policy for notifying him of his right to appeal the denial of his petitions.

Louisiana’s one-year limitations period for “offense and quasi-offenses” applies here. Jones v. Orleans Parish School Board, 688 F.2d 342, 344 (5th Cir.1982), cert. denied 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983). The limitations period for federal claims begins to run when a plaintiff “knows or has reason to know” of the injury, 21 or in this case, when McGregor received notice of the alleged discriminatory decision that is also the basis of his due process claims. St. Amant v. Benoit, 806 F.2d 1294 (5th Cir.1987) (§ 1983 claim accrued on date plaintiff received letter indicating that his transfer request was denied); Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir.1992) (“timeliness of a [§ 504] discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision”). McGregor filed his due process claims more than a year after he received notice of the Law Center’s denial of his spring 1990 petitions. These claims are too late. McGregor, however, invokes various “saving” doctrines to keep his claims alive. We treat them in turn.

A. Relation-Back Doctrine

McGregor argues that his due process claims are not time-barred because the second amended complaint relates back to the original pleading. To relate back, McGregor’s due process claims must have arisen out of the “conduct, transaction, or occurrence set forth” in the original complaint. Fed.R.Civ.P. 15(c)(2). 22 The second amended complaint will not relate back if it asserts new or distinct conduct, transactions, or occurrences as the basis for relief. Holmes v. Greyhound Lines, Inc., 757 F.2d 1563, 1566 (5th Cir.1985).

McGregor highlights three references in the original complaint to unsuccessful part-time scheduling requests to demonstrate that the second amended complaint arises from the same nucleus of operative facts alleged in the original complaint. 23 McGregor first points to paragraph 10, which reads: “The scheduling requests were totally rejected by the Center’s administration; Mr. McGregor was forced to comply with the Law Center’s full-time, ‘mandatory’ freshman schedule, *864 with no allowance whatsoever for his handicap.” McGregor contends that this sentence, “albeit somewhat obliquely,” intimates that he was not afforded due process regarding his initial requests in 1988. McGregor next offers paragraph 22, discussing his June 5, 1989 petition to be readmitted on a part-time schedule. Finally, McGregor quotes the last sentence of paragraph 28, addressing Professor McGough’s May 21, 1990 memorandum attached as an exhibit: “The memorandum was written in reference to a petition from plaintiff McGregor requesting permission to continue into the second year of the law school with a 67.9 average.”

McGregor’s allusions to paragraphs 10 and 22 are fruitless. They concern petitions on which the time for filing a lawsuit had already run on the date of the filing of the original complaint. The June 5,1989 petition was barred from attack at the time McGre-gor filed the original complaint, more than a year later, as was any petition filed in 1988. We, therefore, are left with only the reference in paragraph 28 to McGough’s memo responding to McGregor’s 1990 petition to advance to the junior year.

The original complaint does contain references to McGregor’s requests for scheduling accommodations and advancement, and we can infer from the fact that litigation ensued that these requests were denied. This, however, is not the test for relation back. The test is whether the original complaint apprised the Law Center of the due process claims set forth in the second amended complaint. Holmes, 757 F.2d at 1566.

We agree with the district judge that the original complaint could not have put the Law Center on notice of the due process claims. The original complaint may suggest that McGregor was not satisfied with the Law Center’s decisions, but it does not plead, even when liberally construed, that the Law Center’s decision-making process was inadequate under the Fourteenth Amendment Due Process Clause. No mention is ever made in the prior pleadings of any appeals policy or procedure, and a Due Process claim requires more than a showing that the Law Center refused to accommodate McGregor as requested. McGregor’s amendment attempted to add a new legal theory unsupported by factual claims raised in the original complaint. As we see it, the due process claims, seeking relief for the Law Center’s inadequate appeal process, set forth new and distinct conduct, transactions, or occurrences not found in the original complaint. Liberal application cannot cure the failure of McGregor’s second amended complaint to satisfy the mandate of Rule 15(c). Holmes, 757 F.2d at 1566.

B. Equitable Doctrines

Do tolling or equitable doctrines prevent the running of the prescription so that the second amended complaint was timely filed? Article 3467 of Louisiana’s Civil Code provides that “[pjrescription runs against all persons, unless exception is established by legislation.” La.Civ.Code Ann. art. 3467 (West Supp.1993). The comments to this article clearly indicate that the general tolling and estoppel exceptions still apply. 24 McGregor beckons to his aid the full gamut of legal and equitable doctrines: contra non valentem, equitable estoppel, equitable tolling 25 , continuing tort, and continuing violations.

1. Contra Non Valentem

Attempting to trigger the doctrine of contra non valentem, McGregor ar *865 gues that the Law Center’s continued efforts to make some accommodations led him to believe that additional accommodations were forthcoming so that filing suit was not necessary. One of the circumstances in which this doctrine bars prescription is where the plaintiff does not know or is not reasonably capable of knowing that he has a cause of action. Corsey v. State Dep’t of Corrections, 375 So.2d 1319, 1322 (La.1979). 26 In order to seek refuge in this doctrine, a plaintiff need not allege that the defendant induced his ignorance. Id However, “[t]his principle will not except the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness or neglect; that is, a plaintiff will be deemed to know what he could by reasonable diligence have learned.” Id

McGregor, through reasonable diligence, could have learned about his right to appeal the denial of his Spring 1990 petition in August 1990, after the Law Center (in a letter dated August 17,1990) informed him of the outcome of his petition. All McGregor had to do was ask the Law Center a simple question, “If this is your final answer, where do I go from here?” Contra non valentem only prevents the prescription from running until the cause of action is known or knowable. The only reason McGregor proffers for not knowing his due process claims is that the Law Center lulled him into a false sense of security that more accommodations were forthcoming. The focus under this doctrine is not what the defendants did but what the plaintiff could have done. McGregor cannot seek a reprieve under the contra non valentem doctrine when his failure to file timely the due process claims was the result of his own negligence.

2. Equitable Estoppel

McGregor makes the same argument for purposes of equitable estoppel, except that he couches the Law Center’s continued efforts t