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Finding that the Americans with Disabilities Act does not require schools to offer a summer school program, a federal judge has refused to issue an injunction in a suit brought by a disabled high school student who claims he will be unable to graduate next year unless he is given the chance this summer to complete his junior-year course work. In her 24-page opinion in Harry Doe v. The Haverford School, U.S. District Judge Mary A. McLaughlin found that the student’s requests for accommodations were not reasonable and that ordering the school to grant them would unfairly force the school to “fundamentally alter the nature” of the services it provides. “Ordering the modifications the plaintiff requests would place the court in the untenable position of telling Haverford what courses can be required, how much time students have to complete their work, and when the schoolteachers are required to work. The court will not substitute its judgment on these matters for that of Haverford,” McLaughlin wrote. Plaintiff’s attorney Anna M. Durbin said she would be filing an emergency appeal to the 3rd U.S. Circuit Court of Appeals, seeking an immediate injunction so that her client — who is identified in court papers only as “Harry Doe” — “can go on as a senior on Sept. 3, and graduate with the students he has been with for 12 years.” Durbin said she believes McLaughlin erred in her ruling by putting the burden on the plaintiff to prove that his request would not result in a “fundamental alteration” of the school’s services. Instead, Durbin said, the ADA puts that burden on the school. Durbin said Haverford cannot meet the burden because the school’s handbook allows for incompletes to be made up over the summer, and because it allowed Harry to finish even more work in the summer before his junior year. According to the suit, Harry was diagnosed with asthma and heart valve problems at a young age but nonetheless did very well in school — earning mostly A’s — until 1998, when he became increasingly ill. After a bout of mononucleosis when he was in seventh grade, the suit says, Harry was diagnosed with chronic fatigue syndrome. In May 2002, the suit says, doctors modified Harry’s diagnosis and concluded that he suffered from two sleep disorders that result in his being unable to get a full night of deep REM sleep, and that “episodically and unpredictably causes Harry Doe to be physically unable to wake up, stay alert, communicate or intake instructional information, or do written work or take tests during parts or all of some days.” Treatments for the disorders are “onerous,” the suit says, because Harry must follow a “rigid routine” of going to bed at a specified time to attempt to sleep and must use a “continuous positive airway pressure” device while he sleeps, requiring him to wear a breathing mask over his face all night. He also must sit before a light box for a half-hour every morning. According to the suit, Harry fell “seriously behind” in his course work during his junior year, but Haverford officials accommodated him by allowing him to make up work during the summer. As his junior year began, the suit says, Harry’s parents and school officials agreed on a series of accommodations, including allowing Harry to sign up for an honors math course with the understanding that he could transfer out if he could not keep up. But the suit says Harry’s math teacher refused to go along with the accommodations and instead criticized Harry in front of his classmates for being behind in his work and accused him of skipping classes when Harry was home and unable to go to school because of his disabilities. At one point, the suit says, the math teacher told Harry’s mother that he was “cocky,” “a slacker” and “a liar.” By the end of Harry’s junior year, the suit says, he was seriously behind in several classes. But when Harry’s parents asked that he be allowed to complete the work over the summer, the school refused, the suit says, and instead offered that it would consider converting Harry’s junior year to be a “leave of absence,” allowing him to return in September to repeat that year’s work. In the suit, Durbin demanded that Harry be permitted to complete his biology, history and English courses over the summer and that he be allowed to repeat his math course during his senior year. McLaughlin found that Haverford had already granted Harry a series of accommodations, including exempting him from mandatory study hall and giving him extra time to complete some course work. But McLaughlin found that the additional accommodations Harry is demanding in the suit are not “reasonable.” “Title III of the ADA requires places of public accommodations to make reasonable modifications to their policies, practices, or procedures in an effort to accommodate disabled individuals. The use of ‘reasonable’ as a modifier for ‘modifications’ places a limitation on the types of modifications that a place of public accommodation must provide,” McLaughlin wrote. McLaughlin found that courts must be deferential when considering the academic decisions of an educational institution. “Haverford made an academic judgment that the requested modifications would not be provided after exploring other ways to accommodate the plaintiff’s disabilities. Over the past year, Haverford has gone to great lengths to accommodate the plaintiff,” McLaughlin wrote. Despite those accommodations, McLaughlin said, Harry has work outstanding from the third and fourth quarters in four courses. “Haverford’s conclusion that the additional time sought to complete third and fourth quarter work would lower academic standards is rationally justifiable,” McLaughlin wrote. In his demands, McLaughlin said, Harry was asking for more than five additional months to complete schoolwork from the third quarter and two additional months to complete schoolwork from the fourth quarter for four courses. “Allowing the plaintiff this much extra time to complete his work can rationally be viewed as lowering Haverford’s academic standards,” McLaughlin wrote. And Harry’s demand that he be allowed to repeat his math course next year was also unreasonable, McLaughlin found. “The plaintiff asks the court to decide whether the taking and passing of a math course should remain a requirement of advancing from eleventh to twelfth grade. The court will not substitute its judgment on this issue for that of Haverford,” McLaughlin wrote. But even if the requested accommodations were “reasonable,” McLaughlin concluded, the ADA would not require them because they would force Haverford to fundamentally alter the services it provides. “Educational institutions are in the best position to know what modifications would fundamentally alter their services. Courts generally will not substitute their judgment for that of an educational institution regarding what modifications fundamentally alter these policies,” McLaughlin wrote. “Haverford’s judgment that further modifications of the type requested by the plaintiff fundamentally alters the nature of its services is rationally justifiable. The plaintiff’s request to complete his work and his exams during the summer completely exempts the plaintiff from Haverford’s attendance policy.” Haverford was represented by attorney Kathryn H. Levering of Drinker Biddle & Reath.

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