Andrew H.K. Wong v. The Regents of the University of California

Plaintiff-appellant Andrew H.K. Wong appeals the district court’s order granting summary judgment in favor of defendant-appellee Regents of the University of California (“the University”) on Wong’s claim that the University discriminated against him in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (“the ADA”) and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 2 Wong alleges that the University violated the Acts when, after refusing to grant his request for accommodation of his learning disability, it dismissed him for failing to meet its academic requirements. The district court ruled that summary judgment was appropriate on two grounds: (1) the accommodation Wong requested was not reasonable, and (2) Wong was not qualified to continue his course of study in the School of Medicine because with or without accommodation, he could not perform the tasks required of an effective medical doctor. We conclude, however, that Wong created a question of fact with respect to both of these issues and that the district court therefore erred in granting the University’s motion.

I. FACTS 3

After excelling in his undergraduate and master’s degree programs, Wong entered the School of Medicine at the University of California at Davis in the fall of 1989. The School of Medicine consists of a four-year curriculum: typically, in the first two *812 years, students take academic courses in basic sciences; in the third year, they complete six consecutive clinical “clerkships” in core areas of medical practice; and in the fourth year, they take a series of more specialized clerkships. The clinical clerk-ships teach the students to integrate their academic knowledge with the skills necessary to practice medicine and test them on their progress in developing these skills.

Wong completed the first two years of medical school on a normal schedule and with a grade point average slightly above a “B”; he also passed the required national board examination immediately following the second year. He began his third year on schedule, enrolling in the Surgery clerkship in the summer of 1991 and, upon its conclusion, in the Medicine clerkship. When he was approximately four weeks into the Medicine clerkship, Wong learned that he had failed Surgery. In accordance with school policy, Wong appeared before the Student Evaluation Committee (“SEC”), a body that meets with students having academic problems and makes recommendations to another group, the Promotions Board, which ultimately decides what action, if any, the school should take with respect to that student. The Promotions Board placed Wong on academic probation, decided that he should repeat the Surgery clerkship, and recommended that he continue in the Medicine clerkship at least until the midterm evaluation. Wong withdrew from the Medicine clerkship in November 1991 when his midterm evaluation showed significant problems with his performance to that point. Wong’s instructor of record then assigned a senior resident to work with Wong one-on-one, focusing upon taking patient histories and making oral presentations. These sessions continued through the winter of 1992.

In March 1992, Dr. Ernest Lewis, associate dean of student affairs, granted Wong’s request to take time off from school to be with his father, who had just been diagnosed with lung cancer. Wong spent at least some of this time doing extra reading in preparation for his upcoming clerkships, Psychiatry and Pediatrics. He returned to school in July 1992 and between July and December passed clerkships in Psychiatry (with a “B”), Pediatrics (“C + ”), and Obstetrics/Gynecology (“C”). Wong generally received positive comments on his final evaluation forms for these courses. Instructors noted that he was “competent,” “prompt,” “enthusiastic,” “a very hard worker,” and “an extremely pleasant student who related exceptionally well with the staff’; they also stated that he had “a good fund of knowledge,” “contributed meaningfully to the discussions at hand,” “made astute observations of patients,” and “did a good job of presenting on [gynecology] rounds.” 4 Evaluators also observed, however, that Wong “seem[ed] to have difficulty putting things together” and “limited abilities to effectively communicate his thoughts,” and they recommended that he work on “organizational skills” and “setting priorities.” 5

Wong re-enrolled in the Medicine clerkship in January 1993. Three weeks later, his father died, an event that by all accounts had a devastating impact on Wong. He continued in the Medicine clerkship for a brief period of time, but after his midterm evaluation showed a borderline performance in the first half of the clerkship, Wong, with Dean Lewis’s approval, withdrew from the course and left the Davis campus to be closer to his family, who lived in the San Francisco area. In order to prevent Wong from falling further behind, Dean Lewis permitted him to take several fourth-year level clerkships at hospitals in the San Francisco area. ■ He earned A’s and B’s in these courses, with positive comments. Two evaluators thought that Wong needed to improve his fund of knowledge, but both attributed the *813 deficiency to the fact that he was taking classes in the fourth-year curriculum without having completed his third year “core” clerkships. 6 When Wong returned to the School of Medicine at Davis in the summer of 1998, he again enrolled in Medicine. He asserts that although he did not feel prepared for this course and attempted to drop it, Dean Lewis did not permit the withdrawal, and he ultimately failed the class, triggering another appearance before the SEC and Promotions Board.

The Promotions Board adopted strict conditions for Wong to remain a student in the School of Medicine: it required him to take only reading electives for the next three quarters; to meet again with the SEC and Dean Lewis following that period to assess his progress; and, assuming he received approval to re-enter the clerkship program, to repeat the entire third year, including the courses he already had passed. During the meeting with the Promotions Board, Wong stated that he thought he might have a learning disability and learned from members of the Promotions Board about the University’s Disability Resource Center (“DRC”). DRC staff members and doctors to whom they referred Wong administered a battery of tests and concluded that Wong has a disability that affects the way he processes verbal information and expresses himself verbally. 7

When Dean Lewis learned the results of the tests, he referred Wong to Dr. Margaret Steward, a psychologist and School of Medicine faculty member, so that she could counsel him regarding coping skills and help him determine what accommodations would allow him to complete his courses successfully. Dr. Steward suggested several strategies for Wong to employ, including telling people that he has a “hearing problem” and may need them to slow down or repeat messages; using a tape recorder; and double-checking his understanding of information he has received verbally. 8 Dr. Steward reported to Dean Lewis in a memorandum that “[t]here is no doubt that [Wong] will need extra time to complete the clerkship years.” 9 In the same memorandum, she also specifically recommended giving Wong extra time to read before his next two clerkships, Medicine and Surgery; in a later memorandum, she informed Dean Lewis that she had discussed with Wong that he needed to pass the Medicine clerkship to provide “empirical support” for extra reading time before his next clerkship and that “if he passes Medicine that he needs to anticipate extra time in order to complete the clerkship years.” 10 Finally, Dr. Steward recommended that Dean *814 Lewis assign Wong an “SLD [Student Learning Disability] advisor” with whom he could meet to review strategies for coping with his disability. Dean Lewis never appointed this advisor. 11 Wong also contends (and the University does not dispute) that Dr. Steward told him that the School of Medicine “would set up a learning disability resource team to ensure that Wong received adequate accommodations,” but the school never did so. 12

After completing the requisite three quarters of elective reading under the supervision of a faculty member, Wong planned to retake the Medicine clerkship in July 1994. After attending orientation, however, he felt unprepared for the course and asked for another eight weeks off for additional reading. Dean Lewis granted this request, although he noted that he did not know how the extra time would help Wong. In September 1994, Wong took and passed Medicine, earning a “B” and receiving overwhelmingly positive comments on his grade report, including observations of his “excellent fund of knowledge,” “excellent retention of new material,” and compassionate manner with patients as he performed effective physical exams and formulated diagnoses. 13 The instructor noted some difficulty in making verbál presentations, including uncertainty and taking extra time to answer, but concluded that Wong was a “solid third year medical student” who performed satisfactorily “in all areas of the clerkship.” 14 Wong then received eight weeks off to read in preparation for his Surgery clerkship, which commenced in January 1995 and in which he earned a “B.” The comments on his grade report were similar to those for the preceding clerkship: generally positive remarks mitigated by reference to his need for time and a calm setting to make good oral presentations. The instructor of record concluded:

[T]he department was very pleased with [Wongl’s performance on the clerkship. We thought that he had turned in a solid performance and that he had improved markedly over the past year. We think that he has everything it takes to become a safe and effective physician. 15

Before completing the Surgery clerkship, Wong contacted Dean Lewis’s office and requested eight weeks off to read for his next clerkship, Pediatrics. Dean Lewis denied this request through the registrar; 16 he has offered several different reasons for this decision, giving rise to an issue of fact on this point. In an October 1997 deposition, Dean Lewis stated that he received Wong’s request through the registrar, who told him that Wong wanted time off for reading but also asked to intersperse fourth year electives with his remaining third year clerkships because he wanted to graduate on time without having to take the core clerkships in straight succession. According to Dean Lewis’s testimony, he did not grant Wong’s request because Wong needed to finish his third year before proceeding to fourth year courses and because giving Wong time off to read would keep him from graduating the following year. 17 Wong denies that he pressed for permission to take fourth year courses in order to keep from delaying his *815 graduation date; he contends that he only-mentioned this alternative after Dean Lewis denied his request for eight weeks off to read for Pediatrics and told Wong that he must take courses in succession for the remainder of the year. 18

In the same deposition, Dean Lewis also explained his denial of Wong’s request for reading time as follows: Wong already had received time off before the previous two clerkships and had passed the Pediatrics clerkship three years earlier. For these reasons, Dean Lewis opined that Wong did not need the extra time for this Pediatrics clerkship. In the course of this explanation, however, Dean Lewis again mentioned his belief that Wong wanted to graduate on time; furthermore, Dean Lewis acknowledged that Pediatrics, as well as Obstetrics/Gynecology and Psychiatry, which he expected Wong to take in succession following Pediatrics, had become much more rigorous and demanding over the past few years. 19 Wong concurred in Dean Lewis’s evaluation of the relative difficulty of the 1995 Pediatrics course as compared to the 1992 Pediatrics course.

Finally, in his December 1997 declaration, Dean Lewis repeated as reasons for denying Wong’s requested accommodation that he already had granted Wong a significant amount of time off for additional reading and directed studies and that Wong previously had passed Pediatrics (and the next scheduled clerkship, Obstetrics/Gynecology) with no accommodation. Lewis also advanced a third set of explanations: “In that he was presumed to have previously read the material for those courses, I decided that allowing additional time off to read before repeating those clerkships would have been unreasonable, unfair to other students and contrary to the purposes of the curriculum.” 20

Wong received a “Y” grade in the Pediatrics clerkship. A “Y” signifies work of failing quality in one area of a clerkship; Wong’s evaluations showed that he passed the written and oral examinations but that his ward performance was unsatisfactory. His final grade sheet reported that his “clinical judgment was poor” and that his evaluators “had concerns with his ability to synthesize information.” 21 The grade sheet also noted reporting inaccuracies that in at least one instance “would have resulted in inappropriate dosages,” 22 although Wong contends that his supervisor was responsible for this particular error. Some evaluators wondered whether Wong “could safely practice clinical medicine.” 23 At the time Wong learned of his unsatisfactory performance in Pediatrics, he already had begun his Obstetrics/Gynecology clerkship. A preliminary report from his instructor in that course stated that for the first two weeks, Wong’s performance had been “borderline” and “lower than expected.” 24 This evaluation particularly noted that Wong did not communicate effectively and seemed unsure of himself when examining patients, causing them to react with anger or anxiety.

Wong’s “Y” grade in Pediatrics triggered another appearance before the SEC and Promotions Board. In a letter to the Promotions Board, Wong attributed his poor performance in the pediatric ward to a flu-like virus that affected him during the first two weeks of the clerkship. He *816 stated that during this time, he was extremely ill, once requiring IV fluids, and that he fell behind in his reading which affected his performance in the wards. Wong also mentioned being preoccupied with his mother’s health; she recently had been diagnosed with cancer. Wong contends that Dean Lewis’s refusal to grant him an eight-week reading period prior to this clerkship also contributed to his failing grade; he did not tell the Promotions Board about the refused accommodation because, according to Wong, Dean Lewis ordered him not to mention that issue, an allegation that the University has not disputed.

The SEC recommended dismissal from the School of Medicine, and the Promotions Board concurred. Although the Promotions Board does not keep records of its proceedings, Wong was present during some of the Board’s debate and contends that Dean Lewis (a member of both the SEC and Promotions Board) dominated the discussion. The written recommendation of the Promotions Board stated that it had “considered at length the academic record of Mr. Wong, [including] his current academic deficiency, a ‘Y’ grade in [the] Pediatrics Clerkship.... After a discussion, it was ... approved to recommend Mr. Wong[’s dismissal] for failure to meet the academic standards of the School of Medicine.” 25 The Dean of the School of Medicine accepted this recommendation and dismissed Wong on May 17, 1995. Wong did not appeal his dismissal through the procedure for appeal outlined in the School of Medicine Bylaws and Regulations.

II. DISCUSSION

To establish a prima facie case of discrimination based upon his disability in violation of the Acts, Wong must produce evidence that: (1) he is “disabled” as the Acts define that term; (2) he is qualified to remain a student at the School of Medicine, meaning that he can meet the essential eligibility requirements of the school with or without reasonable accommodation; 26 (3) he “was dismissed solely because of [his] disability;” and (4) the school “receives federal financial assistance (for the Rehabilitation Act claim) or is a public entity (for the ADA claim).” Zukle v. Regents of the Univ. of California, 166 F.3d 1041, 1045 (9th Cir.1999). For summary judgment purposes, the University concedes that Wong has met the first and last elements of this test. The dispute focuses upon the second element: the University argues that Wong was not qualified because he could not satisfy the academic standards of the School of Medicine, even with reasonable accommodation.

Wong bears the “initial burden of producing evidence” both that a reasonable accommodation exists and that this accommodation “would enable [him] to me.et the educational institution’s essential eligibility requirements.” Zukle, 166 F.3d *817 at 1047. Production of such evidence shifts the burden to the University to produce rebuttal evidence that either (1) the suggested accommodation is not reasonable (because it would substantially alter the academic program), or (2) that the student is not qualified (because even with the accommodation, the student could not meet the institution’s academic standards). See id. Wong argues that, viewing the evidence in his favor, he has created an issue of fact as to whether allowing him eight weeks of additional reading time between the Surgery and Pediatrics clerk-ships was a reasonable modification of the School of Medicine’s academic program. If extra reading time was reasonable, Wong contends, the evidence shows that he was qualified to continue in the School of Medicine because when granted that accommodation, he met the school’s standards, performing satisfactorily in both the academic and interactive portions of his courses. According to the University, however, it is entitled to summary judgment because it has rebutted Wong’s evidence on both of these points as a matter of law.

A. Standards of Revieiv

We review the district court’s order granting summary judgment de novo. See, e.g., Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We construe all evidence and reasonable inferences it creates in the light most favorable to the non-moving party. See Brookside Assocs. v. Rifkin, 49 F.3d 490, 492-93 (9th Cir.1995). “The mere existence of a scintilla of evidence in support of the [non-moving par-ty]’s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” United States ex rel Anderson v. Northern Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). Only if, viewing all of the evidence in this manner, “no genuine issue as to any material fact” exists, is the moving party entitled to summary judgment. Fed.R.Civ.P. 56(c).

In this case, we must consider another standard of review as well: the degree of deference (if any) with which we should treat an educational institution’s decisions involving its academic standards and curriculum. We recently observed that the Supreme Court, in the context of examining whether a university violated a student’s constitutional rights to due process when it dismissed him, has held that judges “should show great respect for [a] faculty’s professional judgment” when reviewing “the substance of a genuinely academic decision.” Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985), quoted in Zukle, 166 F.3d at 1047. Extending this reasoning to the realm of the ADA and Rehabilitation Act, we concluded, as most other circuits have, “that an educational institution’s academic decisions are entitled to deference.” Zukle, 166 F.3d at 1047 (citing with approval cases from the First, Second, and Fifth Circuits). We typically defer to the judgment of academics because courts generally are “ill-equipped,” as compared with experienced educators, to determine whether a student meets a university’s “reasonable standards for academic and professional achievement.” Id. (internal quotations omitted).

This deference is not absolute, however: courts still hold the final responsibility for enforcing the Acts, including determining whether an individual is qualified, with or without accommodation, for the program in question. We must ensure that educational institutions are not “dis-guis[ing] truly discriminatory requirements” as academic decisions; to this end, “[t]he educational institution has a ‘real obligation ... to seek suitable means of reasonably accommodating a handicapped person and to submit a factual record indicating that it conscientiously carried out this statutory obligation.’ ” Zukle, 166 F.3d at 1048 (quoting Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 25-26 (1st Cir.1991) (en banc) (Wynne I)) (emphasis *818 added). Subsumed within this standard is the institution’s duty to make itself aware of the nature of the student’s disability; to explore alternatives for accommodating the student; and to exercise professional judgment in deciding whether the modifications under consideration would give the student the opportunity to complete the program without fundamentally or substantially modifying the school’s standards. See Wynne I, 932 F.2d at 26 (explaining that institution needs to submit “undisputed facts ” showing that “relevant officials” “considered alternative means, their feasibility, [and] cost and effect on the academic program”) (emphasis added); id. at 28 (refusing to defer when institution presented no evidence regarding “who took part in the decision” and finding “simple conclusory averment” of head of institution insufficient to support deferential standard of review). We defer to the institution’s academic decisions only after we determine that the school “has fulfilled this obligation.” Zukle, 166 F.3d at 1048. Keeping these standards in mind, we examine the two issues in contention: whether the accommodation Wong requested was reasonable and whether, with accommodation, he was “qualified” to continue his studies at the School of Medicine.

B. Reasonable Accommodation

A public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” Zukle, 166 F.3d at 1046 (quoting 28 C.F.R. § 35.130(b)(7)). The Acts do not require an academic institution “to make fundamental or substantial modifications to its programs or standards,” however. Id.; see also Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 2370-71, 60 L.Ed.2d 980 (1979) (Rehabilitation Act does not require school to substantially modify or lower its standards to accommodate disabled students). Because the issue of reasonableness depends on the individual circumstances of each case, this determination requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to meet the program’s standards. See Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir.1996). As we have observed in the employment context, “mere[ ] speculation] that a suggested accommodation is not feasible” falls short of the “reasonable accommodation” requirement; the Acts create “a duty to ‘gather sufficient information from the [disabled individual] and qualified experts as needed to determine what accommodations are necessary to enable [the individual to meet the standards in question].’ ” Buckingham v. United States, 998 F.2d 735, 740 (9th Cir.1993) (quoting Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir.1985)).

In the typical disability discrimination case in which a plaintiff appeals a district court’s entry of summary judgment in favor of the defendant, we undertake this reasonable accommodation analysis ourselves as a matter of course, examining the record and deciding whether the record reveals questions of fact as to whether the requested modification substantially alters the performance standards at issue or whether the accommodation would allow the individual to meet those requirements. In a case involving assessment of the standards of an academic institution, however, we abstain from an in-depth, de novo analysis of suggested accommodations that the school rejected if the institution demonstrates that it conducted such an inquiry itself and concluded that the accommodations were not feasible or would not be effective. See supra Part II.A. We do not defer to the academic institution’s decision in the present case because the record that the University presented falls short of this requirement.

Dean Lewis’s denial of Wong’s requested accommodation is not entitled to deference because the University failed to present us with a record undisputedly showing *819 that Dean Lewis investigated the proposed accommodation to determine whether the School of Medicine feasibly could implement it (or some alternative modification) without substantially altering the school’s standards. First, Dean Lewis rejected Wong’s request for an eight-week reading period before the Pediatrics clerkship without informing himself of Wong’s need for accommodation of his learning disability. Despite Dr. Steward’s earlier statement to Dean Lewis to the effect that Wong was certain to need additional time to finish the third-year clerkships, Dean Lewis failed to discuss Wong’s proposal with any of the professionals who had worked with Wong to pinpoint his disability and help him develop skills to cope with it. 27 This omission is particularly noteworthy when considered in light of the following testimony that Dean Lewis gave at his deposition:

Q: Am I correct, Dr. Lewis, that you are the person within the School of Medicine who has the ultimate authority to determine what accommodations should be made available to students with disabilities?

A: I’m not responsible for determining which accommodations will be offered to students[;] my office is responsible for seeing that the suggested accommodations are provided to the students, but we don’t make the decisions as to what the accommodations are.

Q: Who does?

A: The Disability Resources Center. 28

Given Dean Lewis’s own description of the limitations upon his responsibility in assessing appropriate accommodations, the fact that he simply passed messages to Wong through the registrar stating his decision to deny Wong’s request-without consulting Wong or any person at the University whose job it was to formulate appropriate accommodations-strikes us as a conspicuous failure to carry out the obligation “conscientiously” to explore possible accommodations.

Second, the evidence creates real doubts that Dean Lewis gave any consideration to the effect the proposed accommodation might have upon the School of Medicine’s program requirements or academic standards at the time he denied Wong’s request. In his October 1997 deposition, Dean Lewis stated that he denied Wong’s requested accommodation because (1) Wong wanted to graduate on time, and (2) Wong already had taken Pediatrics and had received a significant amount of time off for reading, and Dean Lewis therefore did not believe Wong needed additional time off. Neither of these reasons is relevant to the School of Medicine’s curriculum or standards. Only in a declaration dated two months after this deposition did Dean Lewis assert that he denied the requested accommodation because it was “contrary to the purposes of the curriculum.” 29 A jury reasonably could find that Dean Lewis did not formulate this final rationale for denying the accommodation until long after Wong’s dismissal from the School of Medicine. Such after-the-fact justification obviously does not satisfy the University’s obligation to present “undisputed facts” showing that it conscientiously considered whether possible modification would fundamentally or substantially alter the school’s standards when it decided that it could not reasonably accommodate the disabled student. See Wynne /, 932 F.2d at 26. 30 We therefore do not *820 defer to the institution’s decision; we examine the rejection of Wong’s request for an eight-week reading period de novo.

We briefly note that both parties have met their burdens of production as to whether the accommodation was reasonable. Among other things, Wong has shown that the University granted this accommodation in the past. The University, on the other hand, has produced the testimony of Dean Lewis that the eight-week break Wong requested was unreasonable because it required the School of Medicine to alter its curriculum. It contends that the schedule was designed for students to complete consecutively to allow them to practice skills consistently and frequently and to allow the faculty to evaluate the steady development of those skills. 31 Allowing extra time for reading before every clerkship does not comport with this goal, the University argues. Our analysis focuses upon whether this evidence shows as a matter of law that the proposed accommodation is unreasonable; we conclude for the reasons discussed below that the evidence creates an issue of fact as to the reasonableness of granting Wong an eight-week reading period prior to his Pediatrics clerkship.

First, Dr. Steward, the Coordinator of the Student Learning Disability Resource Teams and a member of the medical school faculty, informed Dean Lewis soon after Wong’s diagnosis that Wong certainly would need additional time to complete the clerkship portion of the curriculum. Dr. Steward also stated that if Wong passed the Medicine clerkship after receiving additional reading time, that success would provide empirical support for Wong to receive the same accommodation for his next clerkship. A jury could have found Dr. Steward a persuasive authority on the issue whether the decelerated schedule fundamentally altered the curriculum. See also 34 C.F.R. § 104.44(a) (regulation interpreting Rehabilitation Act as it applies to postsecondary education stating that “Modifications may include changes in the .length of time permitted for the completion of degree requirements” (emphasis added)).

Second, the School of Medicine had granted Wong this same accommodation for his two previous clerkships. An institution’s past decision to make a concession to a disabled individual does not obligate it to continue to grant that accommodation in the future, nor does it render the accommodation reasonable as a matter of law. See, e.g., Myers v. Hose, 50 F.3d 278, 284 (4th Cir.1995) (holding that fact that employer had offered accommodation to employees in the past did not require employer to grant same accommodation to plaintiff as a matter of federal law). The fact that the school previously made the exact modification for the Surgery and Medicine clerkships that Wong requested for the Pediatrics clerkship, however, is certainly persuasive evidence from which a jury could conclude that the accommodation was reasonable. Cf. Hunt-Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004, 1013 (7th Cir.1997) (observing fact that employer previously had restricted employee’s lifting requirements to 50 pounds in response to back injury indicated that this accommodation was reasonable). 32 The *821 School of Medicine also deviated from the consecutive clerkship standard when it allowed Wong to take a leave of absence during the third year to spend time with his ailing father. Both of these occurrences imply that consecutive completion of the third-year clerkships was not an essential element of the curriculum.

Third, that Wong had earned “B’s” and received generally positive comments in the Medicine and Surgery clerkships for which Dean Lewis granted him eight weeks of reading time indicates that it may have been reasonable for Wong to continue receiving this same accommodation. Cf. Roberts v. Progressive Indep., Inc., 183 F.3d 1215, 1220 (10th Cir.1999) (in the employment context, holding that “[reasonable aecommodation[s are] those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job”) (internal quotations and citations omitted). From this evidence, a jury could conclude that the decelerated schedule allowed Wong to meet the substantive academic standards of the two clerkships for which he received the eight-week reading period. Allowing disabled individuals to fulfill the “essential eligibility requirements for ... participation in programs” is, after all, the principle behind the statutory mandate that public entities provide disabled individuals with reasonable accommodations. 42 U.S.C. § 12131(2).

Our holding that Wong has created an issue of fact as to the reasonableness of an eight-week reading period between clerk-ships does not conflict with our opinion in Zukle, in which we decided that the plaintiff did not create an issue of fact as to the reasonableness of the same accommodation that Wong requested. See 166 F.3d at 1050-51. In Zukle, we reached the conclusion that a disabled medical student’s requested decelerated schedule for clerkships was not a reasonable accommodation only after determining that a deferential standard of review was appropriate. We noted that the Promotions Board had considered the plaintiffs previous failure to perform adequately even when granted a decelerated schedule. See id. at 1050-51. Given that plaintiffs inability to perform even with accommodation, we concluded that the school made a rationally considered decision that allowing her to remain in the program would negatively impact the school’s academic standards. Here, however, Wong has presented evidence that when granted the decelerated schedule, his performance drastically improved, and that the University failed to consider fully the effect of this modification on its program and on his abilities. See id. at 1048 (“[Reasonableness is not a constant. To the contrary, what is reasonable in a particular situation may not be reasonable in a different situation-even if the situational differences are relatively slight.”) (internal punctuation and citation omitted).

We re-emphasize that at this stage of the litigation, we examine all of the record evidence in the light most favorable to Wong. We do not hold that allowing Wong to take eight weeks off between each of the third-year clerkships would have been a reasonable accommodation; in fact, we recognize that a jury may well find that, despite the evidence we have just discussed, this modification to the school’s curriculum was not reasonable. Under the summary judgment standard, however, we do not consider whether a jury could find in favor of the defendant: we affirm the entry of summary judgment only if a jury could not find for the plaintiff. Here, a jury could decide that the modification he requested in the School of Medicine’s program was reasonable. The district court erred in concluding otherwise. 33

*822 C. Qualified Individual

The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity....” 42 U.S.C. § 12132. The statute defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the ... participation in programs or activities provides by a public entity.” Id. § 12131(2). The Rehabilitation Act creates similar rights and duties. 34 In the context of postsecondary education, administrative regulations define “qualified” as “meetfing] the academic and technical standards requisite to ... participation in the ... education program or activity.” 34 C.F.R. § 104.3(k)(3). For purposes of resolving the summary judgment issue, Wong concedes that he is not qualified to continue in the School of Medicine without reasonable accommodation; the issue we must consider, therefore, is whether, with the accommodation of time off between clerkships for additional reading, Wong has created an issue of fact that he could satisfy the school’s academic standards.

Again, our analysis begins with a determination of whether we defer to the University’s decision to dismiss Wong for “failure to meet the academic standards of the School of Medicine.” 35 We will not *823 defer to a school’s decision if the ostensibly professional, academic judgment “disguise[s] truly disc