In Re Reasonable Testing Accommodations of LaFleur

#23701-a-SLZ

2006 SD 86

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

IN RE: REASONABLE TESTING
ACCOMMODATIONS OF
TERRY LEE LAFLEUR

* * * *

APPEAL FROM THE BOARD OF BAR
EXAMINERS’ FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER

* * * *

DOMINIC M. SMITH
South Dakota Advocacy Services
Sioux Falls, South Dakota Attorney for applicant
and appellant.

JAMES D. LEACH
Board of Bar Examiners
Rapid City, South Dakota

and

LAWRENCE E. LONG
Attorney General

ROBERT MAYER
Deputy Attorney General
Pierre, South Dakota Attorneys for Board of
Bar Examiners and appellee.

* * * *

ARGUED APRIL 25, 2006

OPINION FILED 09/20/06
#23701

ZINTER, Justice

[¶1.] Terry Lee LaFleur failed to pass the South Dakota bar examination on

three occasions. On his last attempt, he failed even though the South Dakota Board

of Bar Examiners granted his request for accommodations under the Americans

with Disabilities Act (ADA). Those accommodations included time and one half to

take the exam and a private, distraction free room. Prior to a fourth attempt,

LaFleur requested double time and other accommodations, but the Board only

granted the accommodations provided on the third attempt. LaFleur appeals. We

affirm.

Facts and Procedural History

[¶2.] LaFleur attended Thomas M. Cooley School of Law. The school is

located in Lansing, Michigan and is accredited by the American Bar Association.

While in law school, LaFleur experienced difficulties maintaining acceptable grades

and was placed on academic probation. He underwent psychological testing by Dr.

Robert J. Fabiano. Dr. Fabiano diagnosed Attention Deficit Hyperactivity Disorder

(ADHD) (Inattentive Type) and Major Depressive Disorder (Single Episode, Mild).

Thereafter, LaFleur received special accommodations in law school, including

additional time to take examinations and the use of a private testing room. With

these accommodations, LaFleur met the requirements for graduation.

[¶3.] After graduation, LaFleur applied to take the July 2002 South Dakota

bar examination. In his application, LaFleur requested accommodations for his

ADHD. He requested time and a half, use of a private and distraction free room,

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rest periods, and a tape recorder. The Board Secretary denied LaFleur’s request.

LaFleur failed that exam.

[¶4.] LaFleur next applied for the February 2003 examination. This time,

LaFleur did not request any accommodations. He again failed.

[¶5.] A week later, LaFleur applied for the July 2003 examination. On this

third application, LaFleur requested accommodations of time and a half, use of a

private and distraction free room, rest periods, and a tape recorder. The Board

Secretary again denied this request. LaFleur, however, appealed that decision to

the full Board, and an administrative hearing was scheduled. The day before the

hearing, the Board granted LaFleur’s requested accommodations. Although the

Board granted LaFleur’s requested accommodations, he withdrew from the July

2003 examination.

[¶6.] LaFleur then applied for the February 2004 examination and

requested the same accommodations, including time and a half. He took the

February 2004 examination with his requested accommodations but failed by four

points.

[¶7.] LaFleur subsequently petitioned this Court for permission to take the

exam for a fourth time. 1 After we granted his petition, LaFleur again requested

accommodations. The Board Secretary asked LaFleur to update his medical records

supporting his request. LaFleur complied and sought an updated psychological

evaluation at the University of South Dakota Counseling Center. Mr. Michael

1. Under SDCL 16-16-11, an applicant who fails the bar examination three
times may only retake the exam with permission from this Court.

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Fendt, a university doctoral student and licensed psychologist in Minnesota,

performed the evaluation under the authority and supervision of Dr. Matt

Stricherz, Ph.D., a licensed psychologist. The evaluation indicated that LaFleur

had a reading disorder and Attention Deficit Disorder (ADD) (Combined Type).

[¶8.] Based on the updated psychological evaluation, LaFleur applied for the

July 2005 examination and requested new accommodations. This time he

requested: double time on all subtests; testing over a four day period rather than

two days; testing to be conducted in the mornings into the early afternoon; a

private, distraction free room; use of colored pens and a ruler; and use of scratch

paper. 2 In support of this request, LaFleur submitted a form documenting his

disability. LaFleur’s submission indicated that he had “difficulty following written

and oral directions, disorganization, inattention, distractibility, and hyperfocusing

adversely impact[ing] verbal processing under time tested conditions.” LaFleur also

submitted Mr. Fendt’s psychological evaluation report, which indicated that

LaFleur had “difficulty sustaining attention in academic tasks, conversations with

people, and problems staying focused at work.” The report further indicated that

LaFleur had “difficulties following through on instructions at home, work, and at

school, and failing to complete his responsibilities in these environments” and that

2. The evaluation also recommended LaFleur’s request: use of written formats
for all test materials, to write answers to the MBE and later transferring
them to the “bubble sheet,” and an option to use audio recordings. LaFleur
asks for reversal of the Board and a granting of all accommodations
recommended in this evaluation, or in the alternative, an order modifying the
Board’s decision granting the accommodations listed in ¶8, supra.

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LaFleur “would easily be distracted by external and internal stimuli, and . . . [had]

great difficulty organizing tasks.”

[¶9.] Although the Board Secretary denied LaFleur’s new requests for

accommodations, including double time, she granted time and a half and a private

room. LaFleur again requested an administrative hearing before the Board.

Following the hearing, the Board issued findings of fact and conclusions of law only

allowing the previously provided accommodations. LaFleur appeals arguing that

the Board violated the ADA in failing to provide his requested accommodations.

Standard of Review

[¶10.] “[U]nder SDCL 16-16-16, this Court is the final arbiter of the decisions

of the Board of Bar Examiners, and as such, we can accept or reject the Board’s

conclusion.” Application of Widdison, 539 NW2d 671, 675 (SD 1995) (citing

Application of Shemonsky, 379 NW2d 316, 318 (SD 1985)). We generally apply the

“de novo standard of review to both questions of law and fact in all bar admission

cases.” Id. (rejecting admission to State Bar for failure to demonstrate good moral

behavior). See also In re Ogilvie, 2005 SD 65, 698 NW2d 78 (lacking the required

good moral character); In re Yanni, 2005 SD 59, 697 NW2d 394 (reversing Board’s

refusal to admit applicant without examination). However, this case does not

involve these types of questions relating to an applicant’s eligibility for admission to

the Bar. This case involves more academic and technical questions regarding

testing matters for an examination that the Board administers. In analogous cases

where “the accommodation involves similar academic decisions, ‘courts [have]

show[n] great respect for the [academic officials’] professional judgment.’” See

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Mershon v. St. Louis Univ., 442 F3d 1069, 1078 (8thCir 2006) (quoting Amir v. St.

Louis Univ., 184 F3d 1017, 1028 (8thCir 1999) (quoting Regents of Univ. of Mich. v.

Ewing, 474 US 214, 225, 106 SCt 507, 513, 88 LEd2d 523, 532 (1985))). We agree

that in such matters, we should give “due weight” to the Board’s administrative

decisions and will not substitute our own notion of exam policy. See Gill v.

Columbia 93 School Dist., 217 F3d 1027, 1037 (8thCir 2000) (citing Board of Educ.

v. Rowley, 458 US 176, 206, 102 SCt 3034, 3051, 73 LEd2d 690, 712 (1982)).

Decision

[¶11.] The ADA is a federal civil rights act that is “designed to provide

comprehensive protection for disabled individuals against discrimination based on

their disabilities.” Theriault v. Flynn, 162 F3d 46, 47-48 (1stCir 1998). This

comprehensive act is designed “to eliminate disability discrimination on three

fronts: employment (Title I, 42 USC §§ 12111-12117); public services offered by

public agencies (Title II, 42 USC §§ 12131-12165); and public services and

accommodations offered by private entities (Title III, 42 USC 12161-12189).”

Martin v. Taft, 222 FSupp2d 940, 966 (SDOhio 2002). LaFleur alleges a violation

under Title II, which provides in part:

[N]o 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, or be subjected to discrimination by any such agency.

42 USC § 12132. “The protection afforded [under Title II of] the ADA is

characterized as a guarantee of ‘meaningful access’ to government benefits and

programs, which broadly means that public entities must take reasonable steps to

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ensure that individuals with disabilities can take advantage of such public

undertakings.” Theriault, 162 F3d at 48 (citations omitted).

[¶12.] LaFleur contends that the Board violated Title II by failing to approve

his requested accommodations and, in particular, his request for double time to take

the exam. In order to prevail on this claim, LaFleur “must show (1) that [he] is

disabled, (2) that [his] requests for accommodations [were] reasonable, and (3) that

those requests have been denied.” D’Amico v. New York State Bd. of Law Exam’rs,

813 FSupp 217, 221 (WDNY 1993). See also Cox v. Alabama State Bar, 330

FSupp2d 1265, 1267 (MDAla 2004). In the analogous Title III setting, the Eighth

Circuit further explained that under the reasonable accommodation requirement: a

plaintiff must show “that the defendant failed to make reasonable modifications

that would accommodate the plaintiff’s disability without fundamentally altering

the nature of the public accommodation.” Amir, 184 F3d at 1027 (emphasis added)

(citations omitted). The Board has conceded that it is a public entity, that LaFleur

is disabled, and that his requested accommodations were denied. Therefore, the

question is whether LaFleur proved that the Board failed to make reasonable

accommodations that would accommodate his disability.

[¶13.] LaFleur first claims that in light of Mr. Fendt’s evaluation, LaFleur’s

requested accommodations were reasonable, and therefore, the Board was required

to implement those accommodations unless the Board proved that the

accommodations would fundamentally alter the nature of the bar exam. 3 In

3. LaFleur argues that, in deciding this issue, we must apply a modified
burden shifting analysis similar to the McDonnell Douglas analysis
(continued . . . )
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support of his argument, LaFleur relies on a reasonable-modifications regulation

found in 28 CFR § 35.130(b)(7), which provides:

A public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the public
entity can demonstrate conclusively that making the
modifications would fundamentally alter the nature of the
service, program, or activity.

Under this regulation, LaFleur contends that once he made a prima facie showing

of a need for accommodations through Mr. Fendt, the Board was required to

demonstrate that LaFleur’s requested accommodation would fundamentally alter

the nature of the exam. Because the Board made no showing that LaFleur’s

requested accommodations would fundamentally alter the nature of the bar exam,

he contends that he must prevail.

________________________
(. . . continued)
utilized in Title VII employment discrimination cases. See Peebles v.
Potter, 354 F3d 761, 766 (8thCir 2004) (stating that “a modified
burden shifting analysis” is utilized “because a claim against an
employer for failing to reasonably accommodate a disabled employee
does not turn on the employer’s intent or actual motive. The
McDonnell Douglas line of cases, however, is aimed at fleshing out this
‘elusive factual question of intentional discrimination.’”) (citations
omitted).

In any event, we believe that this type of burden shifting analysis is
only applicable in motions for summary judgment and directed
verdicts. See Lord v. Hy-Vee, 2006 SD 70, ¶22, 720 NW2d 443, 452;
Kanida v. Gulf Coast Medical Personnel LP, 363 F3d 568, 575 (5thCir
2004) (“‘The McDonnell Douglas formula . . . is applicable only in a
directed verdict or summary judgment situation.’”) (quoting Powell v.
Rockwell Int’l Corp., 788 F2d 279, 285 (5thCir 1986). In this case, we
are not presented with an appeal involving summary judgment or
directed verdict. Rather, the Board made its decision after a full
hearing on the merits of the reasonableness claim. Therefore, the
(continued . . . )

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[¶14.] However, because the Board never relied upon the fundamental

alteration defense, LaFleur misapprehends the issue that is actually presented in

this case. In analyzing this regulation, the Supreme Court recognized that the

“fundamental-alteration” language is only one part of the reasonable-modification

requirement. Olmstead v. L.C. ex rel. Zimring, 527 US 581, 604, 119 SCt 2176,

2189, 144 LEd2d 540, 560 (1999). The Supreme Court acknowledged that in

addition to the fundamental alteration defense, a public agency may also satisfy the

reasonable accommodation requirement if the public entity actually provides

effective, alternative accommodations. See Id. at 605-606. 4 Consequently, the

reasonable modification requirement not only permits a public entity to reject a

proposed accommodation if it would fundamentally alter the entity’s services or

programs, but also if the public entity’s alternative accommodation would

accommodate the individual’s disability.

________________________
(. . . continued)
burden shifting analysis is inapplicable. The issue is simply whether
LaFleur was denied reasonable accommodations.

4. In the context of alternative placements for persons with mental disabilities,
the Supreme Court stated:

If . . . the State were to demonstrate that it had a
comprehensive, effectively working plan for placing qualified
persons with mental disabilities in less restrictive settings, and
a waiting list that moved at a reasonable pace not controlled by
the State’s endeavors to keep its institutions fully populated, the
reasonable-modifications standard would be met.

Id. at 605-606.

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[¶15.] In this case, rather than raising the fundamental alteration defense,

the Board relied solely on evidence that the alternative accommodations it offered

were reasonable and adequate to accommodate LaFleur’s disability. Therefore, we

must determine whether LaFleur satisfied his ultimate burden of proving that

those alternatives did not provide reasonable accommodations for his disability.

[¶16.] LaFleur’s proof was primarily based on the updated psychological

evaluation performed by Mr. Fendt. Mr. Fendt obtained a bachelor’s degree in

psychology in 1971, a master’s degree in counseling in 1996, and was a doctoral

student at the time of the evaluation. He recommended that LaFleur be given

double time on all tests; a private, distraction free room for testing; segmented

testing over a four day period and other accommodations. Mr. Fendt testified that

double time was the national standard for people with disabilities similar to

LaFleur’s. When pressed further, however, Mr. Fendt disclosed that this was the

standard for entrance examinations such as the GRE, GMAT, SAT, and the ACT.

Mr. Fendt conceded that he did not know the national standard for bar

examinations, and he did not contact anyone at the National Conference of Bar

Examiners to determine that standard.

[¶17.] In contrast, the Board relied upon the testimony of Dr. John D.

Ranseen, a licensed psychologist. Dr. Ranseen is an associate professor of

psychiatry at the University of Kentucky Medical Center. Dr. Ranseen also

consults for sixteen different state boards of bar examiners, 5 has made numerous

5. Dr. Ranseen was a consultant for the board of bar examiners in:
California, Colorado, Florida, Kentucky, Louisiana, Maryland,
(continued . . . )
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invited presentations on the ADA, 6 and has published several articles on ADA

accommodations. 7 Dr. Ranseen was also familiar with LaFleur’s case as he had

reviewed LaFleur’s file on two prior occasions. Based on his review of LaFleur’s

case, including the updated evaluation performed by Mr. Fendt, Dr. Ranseen opined

that double time was unnecessary because time and a half and a distraction free

room would reasonably accommodate LaFleur’s disability. Dr. Ranseen reported:

The updated evaluation seemingly indicates that Mr. LaFleur
still encounters some relative difficulty in terms of his general
academic processing speed such that I recommend that he be
________________________
(. . . continued)
Minnesota, Missouri, New York, North Carolina, Oklahoma,
Pennsylvania, South Carolina, South Dakota, Texas, and Virginia.

6. Dr. Ranseen’s invited presentations on the ADA included:
1) “Learning Disability Among College Students: A
Neuropsychologist’s Perspective.” Counseling and Testing
Center, University of Kentucky. March 1993.
2) “Testing Under the ADA: What You Should Know About the
Definition, Diagnosis, and Accommodation of Disabilities.”
American Bar Association: Section on Legal Education and
Admissions to the Bar. Chicago, Illinois. August 1995.
3) “Testing Under the ADA: Issues with Adult Attention Deficit
Disorder.” National Conference of Bar Examiners. Chicago,
Illinois. April 1996.
4) “Testing Under the ADA: Evaluating Disability
Documentation.” National Conference of Bar Examiners.
Chicago, Illinois. April 2000.
5) ADA Case Studies. National Conference of Bar Examiners.
New Orleans, Louisiana. March 2004.

7. Dr. Ranseen’s published articles relating to the ADA included:
1) Ranseen, J.D., Lawyers With ADHD: The Special Test
Accommodation Controversy, Professional Psychology (1998).
2) Ranseen, J.D., Reviewing ADHD Accommodation Requests An
Update, The Bar Examiner (2000).
3) Ranseen, J.D. & Park, G.S., Test Accommodations for Post-
Secondary Students: The Quandary of ADA’s Disability
Definition, Psychology, Public Policy & Law (2005).

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provided 50% extra time. I think that it is plausible that he is a
distractible individual secondary to weakness in his ability to
sustain attention. Thus, I recommend that he again be provided
a separate (or distraction-reduced) testing area. However, based
on my numerous stated concerns and his past history of
accommodation (50% extra time, separate room), I see no reason
why additional accommodations should be offered (100% extra
time, additional days).

Dr. Ranseen explained that: 1) LaFleur had received similar accommodations (time

and a half) in the past; 2) since then, he had been treated for his attention deficit

hyperactivity disorder; 3) treatment usually helps the ability to focus; and 4)

although it was not clear that the treatment greatly improved LaFleur’s ability to

focus, there was also no clear indication that his ability to focus had significantly

decreased.

[¶18.] After evaluating the testimony and qualifications of these experts, the

Board adopted Dr. Ranseen’s opinion over that of Mr. Fendt. As the Board noted,

Dr. Ranseen was more qualified, knowledgeable, and experienced than Mr. Fendt or

Dr. Stricherz in determining ADA accommodations for bar examinations. We have

often stated that a quasi-judicial fact finder is vested with discretion in choosing the

expert that it believes concerning a person’s impairment. Tischler v. United Parcel

Service, 1996 SD 98, ¶46, 552 NW2d 597, 605 (stating that in workers’

compensation cases, “[i]t is within the [agency’s] discretion to disregard one expert’s

impairment rating and accept another.”). We see no difference here. Therefore, the

Board did not err in finding that LaFleur failed to satisfy his burden of proving that

he was denied reasonable modifications that would accommodate his disability.

[¶19.] Affirmed.

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[¶20.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,

Justices, and MILLER, Retired Justice, concur.

[¶21.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

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