Appeal from the United States District Courtfor the Eastern District of CaliforniaDavid F. Levi, District Judge, PresidingArgued and SubmittedNovember 3, 1998--San Francisco, CaliforniaFiled February 23, 1999Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain andFerdinand F. Fernandez, Circuit Judges.Opinion by Judge O'Scannlain
_____________________________COUNSEL Dan Siegel, Hunter, Pyle, Siegel & Yee, Sacramento, Califor-nia, for the plaintiff-appellant.Charity Kenyon, Diepenbrock, Wulff, Plant & Hannegan,Sacramento, California, for the defendant-appellee.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether a medical school violated theAmericans with Disabilities Act or the Rehabilitation Actwhen it dismissed a learning disabled student for failure tomeet the school's academic standards.ISherrie Lynn Zukle entered the University of California,Davis School of Medicine ("Medical School") in the fall of1991 for a four year course of study. The first two years com-prise the "basic science" or "pre-clinical " curriculum, consist-ing of courses in the function, design and processes of thehuman body. The final two years comprise the "clinicalcurriculum." In the third year, students take six consecutiveeight-week clinical clerkships. During the fourth year, stu-dents complete clerkships of varying lengths in moreadvanced areas. Most clerkships involve treating patients inhospitals or clinics, and oral and written exams.From the beginning, Zukle experienced academic diffi-culty. During her first quarter, she received "Y " grades inAnatomy and Biochemistry.1 Upon reexamination, her Bio-chemistry grade was converted to a "D." She did not converther Anatomy grade at that time. In her second quarter, shereceived a "Y" grade in Human Physiology, which she con-verted to a "D" upon reexamination.In April 1992, the Medical School referred Zukle to theStudent Evaluation Committee ("SEC").2 Although subject todismissal pursuant to the Medical School's bylaws, 3 Zuklewas allowed to remain in school. The SEC (1) placed Zukleon academic probation,4 (2) required her to retake Anatomyand Biochemistry, (3) required her to be tested for a learningdisability, and (4) placed her on a "split curriculum," meaningthat she was given three years to complete the pre-clinicalprogram, instead of the usual two years. Zukle continued toexperience academic difficulty. For the spring quarter of 1992(while on academic probation) she received a "Y " grade inNeurobiology. In the fall, she received a "Y" grade in MedicalMicrobiology and in the winter she received a "Y " in Princi-ples of Pharmacology. In total, Zukle received eight "Y"grades during the pre-clinical portion of her studies. Five wereconverted to "C" after reexamination, two to "D" and one to"F."In November 1992, Zukle was tested for a learning disabil-ity. The results received in January 1993, revealed that Zuklesuffered from a reading disability which "affects visual pro-cessing as it relates to reading comprehension and rate whenunder timed constraints." In short, it takes Zukle longer toread and to absorb information than the average person.5Zukle asked Christine O'Dell, Coordinator of the University'sLearning Disability Resource Center, to inform the MedicalSchool of her test results in mid-July 1993. O'Dell informedGail Currie of the Office of Student Affairs in a letter datedJuly 21, 1993. O'Dell recommended that the Medical Schoolmake various accommodations for Zukle's disability and rec-ommended various techniques for Zukle to try to increase herreading comprehension. The Medical School offered all ofthese accommodations to Zukle.After completing the pre-clinical portion of MedicalSchool, Zukle took the United States Medical LicensingExam, Part I ("USMLE") in June 1994. Shortly thereafter, shebegan her first clinical clerkship, OB-GYN. During this clerk-ship, Zukle learned that she had failed the USLME. 6 TheMedical School allowed Zukle to interrupt her OB-GYNclerkship to take a six-week review course to prepare to retakethe USMLE, for which the Medical School paid.Before leaving school to take the USMLE review courseoffered in southern California, Zukle asked Donal A. Walsh,the Associate Dean of Curricular Affairs, if she could rear-range her clerkship schedule. At this point, Zukle had com-pleted the first half of her OB-GYN clerkship. She askedDean Walsh if, instead of completing the second half of herOB-GYN clerkship upon return from retaking the USMLE,she could start the first half of a Family Practice Clerkship,and then repeat the OB-GYN clerkship in its entirety at a laterdate. Zukle testified that she made this request because shewas concerned about how far behind she would be when shereturned from the USMLE review course. She further assertedthat she thought that if she started the Family Practice clerk-ship (which apparently requires less reading than the OB-GYN clerkship), she would be able to read for her upcomingMedicine clerkship at night. Zukle testified that Dean Walsh,and several other faculty members, including the Instructor ofRecord for Family Practice and the Instructor of Record forOB-GYN, initially approved her request. Later, however,Dean Walsh denied Zukle's request and informed her that shehad to complete the OB-GYN clerkship before beginninganother clerkship.In September 1994, Zukle took and passed the USMLE onher second attempt.7 She returned to the Medical School andfinished her OB-GYN clerkship. Without requesting anyaccommodations, she began her Medicine clerkship. Duringthis clerkship, she learned that she had earned a "Y" grade inher OB-GYN clerkship. Because of this grade, Zukle wasautomatically placed back on academic probation. 8Two weeks before the Medicine written exam, Zukle con-tacted her advisor, Dr. Joseph Silva, and expressed concernthat she had not completed the required reading. Dr. Silvaoffered to speak with Dr. Ruth Lawrence, the MedicineInstructor of Record, on Zukle's behalf. According to Zukle,she then spoke with Dr. Lawrence in person and requestedtime off from the clerkship to prepare for the exam. Dr. Law-rence denied Zukle's request. Zukle passed the written exam,but failed the Medicine clerkship because of unsatisfactoryclinical performance. On Zukle's grade sheet, Dr. Lawrencerated Zukle as unsatisfactory in clinical problem solvingskills; data acquisition, organization and recording; andskill/ability at oral presentations. Dr. Lawrence also reportednegative comments from the people who worked with Zukleduring the clerkship. Because Zukle had earned a failinggrade while on academic probation, she was again subject todismissal pursuant to the Medical School's bylaws.On January 13, 1995, Zukle appeared before the SEC. TheSEC recommended that Zukle (1) drop her current clerkship,Pediatrics; (2) start reviewing for the OB-GYN exam, andretake it; (3) repeat the Medicine clerkship in its entirety; (4)obtain the approval of the SEC before enrolling in any moreclerkships; and (5) remain on academic probation for the restof her medical school career.On January 17, 1995, the Promotions Board met to con-sider Zukle's case. The Promotions Board voted to dismissZukle from the Medical School for "failure to meet the aca-demic standards of the School of Medicine." According to Dr.Lewis, who was a member of the Promotions Board and waspresent when it reached its decision, "the Promotions Boardconsidered Plaintiff's academic performance throughout hertenure at the medical school and determined that it demon-strated an incapacity to develop or use the skills and knowl-edge required to competently practice medicine."In June 1995, Zukle appealed her dismissal to an ad hocBoard on Student Dismissal composed of faculty and students("the Board").9 Zukle appeared before the Board on Novem-ber 12, 1995, and requested that her dismissal be reconsideredand that she be given extra time to prepare prior to some ofher clerkships to accommodate her disability. The Board alsoheard testimony from Dr. Silva, who spoke favorably on herbehalf, Dr. Ernest Lewis, Associate Dean of Student Affairsand Dr. George Jordan, the Chair of the Promotions Board atthe time of Zukle's dismissal. When asked about Zukle'srequest to remain in Medical School on a decelerated sched-ule, Dean Lewis testified: There is a certain point when everyone has to be able to respond in the same time frame. A physician does not have extra time when in the ER, for example. Speed of appropriate reaction to crisis is essential.The Board on Student Dismissal voted unanimously to upholdthe Promotions Board's decision of dismissal.On January 22, 1996, Zukle filed a complaint in federal dis-trict court for damages and injunctive relief against theRegents of the University of California ("Regents"). Thecomplaint alleged discrimination based on disability, sex andrace, and sexual harassment. On June 6, 1997, the Regentsfiled a motion for summary judgment. The district courtentered its Memorandum of Opinion and Order on August 7,1997, granting summary judgment to The Regents on all ofZukle's claims. The court found that Zukle's "race, sex, andsexual harassment claims are unsupported by the record anddo not merit discussion." On Zukle's Americans with Disabil-ities Act ("ADA") and Rehabilitation Act claims, the districtcourt found that "[b]ecause the evidence before the courtshows that Zukle could not meet the minimum standards ofthe UCD School of Medicine with reasonable accommoda-tion, she is not an otherwise qualified individual with a dis-ability under the Rehabilitation Act or the ADA."Zukle timely appeals from the district court's grant of sum-mary judgment on her ADA and Rehabilitation Act claims.10IIZukle claims that she was dismissed from the MedicalSchool in violation of Title II of the ADA and section 504 ofthe Rehabilitation Act. Title II of the ADA provides, in rele-vant part: no qualified individual with a disability shall, by reason of such disability, be excluded from participa- tion in or be denied the benefits of the services, pro- grams, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. S 12132. Title II prohibits discrimination by stateand local agencies, which includes publicly funded institu-tions of higher education. See id. at S 12131(1)(B).Title II of the ADA was expressly modeled after Section504 of the Rehabilitation Act, which provides: No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .29 U.S.C. S 794.[1] To make out a prima facie case under either the ADAor Rehabilitation Act Zukle must show that (1) she is disabledunder the Act; (2) she is "otherwise qualified " to remain a stu-dent at the Medical School, i.e., she can meet the essential eli-gibility requirements of the school, with or without reasonableaccommodation; (3) she was dismissed solely because of herdisability; and (4) the Medical School receives federal finan-cial assistance (for the Rehabilitation Act claim), or is a pub-lic entity (for the ADA claim). See Dempsey v. Ladd, 840F.2d 638, 640 (9th Cir. 1988); cf. Willis v. Pacific MaritimeAssoc., 162 F.3d 561, 565 (9th Cir. 1998) (stating prima facieelements for ADA employment case).11[2] The Regents do not dispute that Zukle is disabled andthat the Medical School receives federal financial assistanceand is a public entity. The Regents argue, however, that Zuklewas not "otherwise qualified" to remain at the MedicalSchool. Zukle responds that she was "otherwise qualified"with the aid of reasonable accommodations and that the Medi-cal School failed reasonably to accommodate her. 12A[3] The ADA defines a "qualified individual with adisability" as one who "meets the essential eligibility require-ments . . . for participation in [a given] program[ ] providedby a public entity" "with or without reasonable modificationsto rules, policies, or practices . . . ." 42 U.S.C. S 12131(2)(emphasis added); accord Southeastern Community College v.Davis,
442 U.S. 397, 406
(1979) (holding that under theRehabilitation Act, an otherwise qualified individual is "onewho is able to meet all of a program's requirements in spiteof his handicap"). In the school context, the implementingregulations of the Rehabilitation Act define an otherwise qual-ified individual as an individual who, although disabled,"meets the academic and technical standards requisite toadmission or participation in the [school's] education programor activity." 34 C.F.R. S 104.3(k)(3).[4] However, under Rehabilitation Act regulations, educa-tional institutions are required to provide a disabled studentwith reasonable accommodations to ensure that the institu-tion's requirements do not discriminate on the basis of the stu-dent's disability. See 34 C.F.R. S 104.44(a). Similarly, theADA's implementing regulations require a public entity to"make reasonable modifications in policies, practices, or pro-cedures when the modifications are necessary to avoid dis-crimination on the basis of disability, unless the public entitycan demonstrate that making the modifications would funda-mentally alter the nature of the services, program, or activity."28 C.F.R. S 35.130(b)(7). The Supreme Court has made clearthat an educational institution is not required to make funda-mental or substantial modifications to its program or stan-dards; it need only make reasonable ones. See Alexander v.Choate,
469 U.S. 287, 300
(1985).BIn order to evaluate Zukle's claim, we must clarify the bur-dens of production and persuasion in cases of this type. Thedistrict court correctly noted that we have not previouslyaddressed the allocation of the burdens of production and per-suasion for the "otherwise qualified" --"reasonableaccommodation" prong for a prima facie case in the schoolcontext. We have, however, recently articulated the allocationof these burdens in the employment context. See Barnett v.U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). In Barnett, wemade clear that the plaintiff bears the ultimate burden of per-suasion with regard to whether he is qualified, i.e., in theschool context, that he is able to meet the educational institu-tion's essential eligibility requirements with or without the aidof reasonable accommodations. See id. at 749 (noting that, inthe employment context, the plaintiff bears the burden ofproving that he can perform the essential functions of the jobwith or without reasonable accommodation).We further held that when the plaintiff alleges a failure toaccommodate, part of the plaintiff's initial burden includes"showing the existence of a reasonable accommodation." Id.at 749. In the employment context, "[o]nce the plaintiff hasestablished the existence of a reasonable accommodation thatwould enable him or her to perform the essential functions ofan available job, the burden switches to the defendant to showthat this accommodation would constitute an undue hardship."Id.[5] Adopting a similar burden shifting framework in theschool context, we hold that the plaintiff-student bears the ini-tial burden of producing evidence that she is otherwise quali-fied. This burden includes the burden of producing evidenceof the existence of a reasonable accommodation that wouldenable her to meet the educational institution's essential eligi-bility requirements. The burden then shifts to the educationalinstitution to produce evidence that the requested accommo-dation would require a fundamental or substantial modifica-tion of its program or standards. The school may also meet itsburden by producing evidence that the requested accommoda-tions, regardless of whether they are reasonable, would notenable the student to meet its academic standards. However,the plaintiff-student retains the ultimate burden of persuadingthe court that she is otherwise qualified.CBefore turning to the merits of Zukle's claims, we mustdecide whether we should accord deference to academic deci-sions made by the school in the context of an ADA or Reha-bilitation Act claim, an issue of first impression in this circuit.In Regents of the Univ. of Michigan v. Ewing, the SupremeCourt analyzed the issue of the deference a court shouldextend to an educational institution's decision in the due pro-cess context. See
474 U.S. 214
(1985). In Ewing, the plaintiff-medical student challenged his dismissal from medical schoolas arbitrary and capricious in violation of his substantive dueprocess rights. See id. at 217. The Court held that: When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty's profes- sional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.Id. at 225 (footnote omitted).While the Court made this statement in the context of a dueprocess violation claim, a majority of circuits have extendedjudicial deference to an educational institution's academicdecisions in ADA and Rehabilitation Act cases. See Doe v.New York Univ., 666 F.2d 761 (2d. Cir. 1981); McGregor v.Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850 (5th Cir.1993); Wynne v. Tufts Univ. Sch. of Med. ("Wynne I"), 932F.2d 19 (1st. Cir. 1991).13 But see Pushkin v. Regents of theUniv. of Colorado, 658 F.2d 1372 (10th Cir. 1981) (refusingto adopt deferential, rational basis test in evaluating educa-tional institution's decisions in Rehabilitation Act case).These courts noted the limited ability of courts, "as contrastedto that of experienced educational administrators andprofessionals," to determine whether a student "would meetreasonable standards for academic and professional achieve-ment established by a university," and have concluded that" `[c]ourts are particularly ill-equipped to evaluate academicperformance.' " Doe, 666 F.2d at 775-76 (quoting Board ofCurators of Univ. of Missouri v. Horowitz,
435 U.S. 78
, 92(1978)).[6] We agree with the First, Second and Fifth circuits thatan educational institution's academic decisions are entitled todeference. Thus, while we recognize that the ultimate deter-mination of whether an individual is otherwise qualified mustbe made by the court, we will extend judicial deference "tothe evaluation made by the institution itself, absent proof thatits standards and its application of them serve no purposeother than to deny an education to handicapped persons."Doe, 666 F.2d at 776.[7] Deference is also appropriately accorded an educationalinstitution's determination that a reasonable accommodationis not available. Therefore, we agree with the First Circuit that"a court's duty is to first find the basic facts, giving due defer-ence to the school, and then to evaluate whether those factsadd up to a professional, academic judgment that reasonableaccommodation is not available." Wynne I, 932 F.2d at 27-28;see also McGregor, 3 F.3d at 859 (the court must "accord def-erence to [the school's] decisions not to modify its programs[when] the proposed modifications entail academicdecisions").We recognize that extending deference to educational insti-tutions must not impede our obligation to enforce the ADAand the Rehabilitation Act. Thus, we must be careful not toallow academic decisions to disguise truly discriminatoryrequirements. The educational institution has a "real obliga-tion . . . to seek suitable means of reasonably accommodatinga handicapped person and to submit a factual record indicat-ing that it conscientiously carried out this statutoryobligation." Wynne I, 932 F.2d at 25-26. Once the educationalinstitution has fulfilled this obligation, however, we will deferto its academic decisions.IIIHaving answered several preliminary questions, we nowturn to the ultimate question -- did Zukle establish a primafacie case of discrimination under the ADA or the Rehabilita-tion Act? As noted before, only the "otherwise qualified"prong of the prima facie case requirements is disputed by theparties. Zukle argues that she was otherwise qualified toremain at the Medical School, with the aid of the three accom-modations she requested. The Medical School argues thatZukle's requested accommodations were not reasonablebecause they would have required a fundamental or substan-tial modification of its program. See Alexander , 469 U.S. at300 (holding that institution subject to Rehabilitation Act maybe required to make reasonable modifications to accommo-date a disabled plaintiff, but need not make fundamental orsubstantial modifications).Zukle bears the burden of pointing to the existence of a rea-sonable accommodation that would enable her to meet theMedical School's essential eligibility requirements. Once shemeets this burden, the Medical School must show that Zukle'srequested accommodation would fundamentally alter thenature of the school's program. We must determine, viewingthe evidence in the light most favorable to Zukle, if there areany genuine issues of material fact with regard to the reason-ableness of Zukle's requested accommodations. See Margolisv. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).We note at this stage that "[r]easonableness is not a con-stant. To the contrary, what is reasonable in a particular situa-tion may not be reasonable in a different situation--even ifthe situational differences are relatively slight. " Wynne v.Tufts Univ. Sch. of Med. ("Wynne II"), 976 F.2d 791, 795 (1stCir. 1992). Thus, we must evaluate Zukle's requests in lightof the totality of her circumstances. See Barnett, 157 F.3d at748 ("Whether a particular accommodation is reasonabledepends on the circumstances of the individual case.").[8] The evidence is undisputed that the Medical Schooloffered Zukle all of the accommodations that it normallyoffers learning disabled students. When the Medical Schoolfirst learned of Zukle's disability she was offered double timeon exams, notetaking services and textbooks on audio cas-settes. Further, Zukle was allowed to retake courses, proceedon a decelerated schedule and remain at the Medical Schooldespite being subject to dismissal under the Medical School'sbylaws.[9] Even with these accommodations, Zukle consistentlyfailed to achieve passing grades in her courses. Though Zuklewas on a decelerated schedule, she continued to receive "Y"grades in her pre-clinical years and failed the USMLE on herfirst attempt. Further, although she was able to remedy someof her failing grades in her pre-clinical years, she was onlyable to do so by retaking exams. Moreover, she received a"Y" grade in her first clinical clerkship, automatically placingher on academic probation, and an "F" in her second. BecauseZukle received a failing grade while on academic probation,she was subject to dismissal pursuant to the Medical School'sbylaws. Clearly, Zukle could not meet the Medical School'sessential eligibility requirements without the additionalaccommodations she requested.The issue, then, is whether the ADA and Rehabilitation Actrequired the Medical School to provide Zukle with those addi-tional accommodations. As noted above, the Medical Schoolwas only required to provide Zukle with reasonable accom-modations. Accordingly, we examine the reasonableness ofZukle's requested accommodations.AZukle claims that the Medical School should have grantedher request to modify her schedule by beginning the first halfof the Family Practice Clerkship instead of finishing the sec-ond half of her OB-GYN clerkship when she returned fromretaking the USMLE. She proposed that she would then beginthe Medicine clerkship, and finish Family Practice and OB-GYN at a later time.The Regents presented evidence that granting this requestwould require a substantial modification of its curriculum.While the Medical School has granted some students readingtime prior to the commencement of a clerkship, Dean Walshtestified that once a clerkship begins "all students areexpected to complete the reading and other requirements ofthe clerkship, including night call and ward care, and to pre-pare themselves for the written exam which is given only atthe end of the 8-week clerkship." Zukle's request would haveentailed interrupting her OB-GYN clerkship, and starting theMedicine clerkship before finishing the Family Practice clerk-ship. Thus, by the time Zukle began the Medicine clerkshipshe would have had two uncompleted clerkships.[10] Dean Walsh testified that the only time the MedicalSchool allows a student to begin a clerkship, interrupt it, andthen return to that clerkship at a later point is when a studenthas failed the USMLE and needs time off to study. However,the student is still required to return to the same clerkship.Given that no student had been allowed to rearrange her clerk-ships in the manner Zukle requested and that Zukle's requestwould entail Zukle interrupting two courses to complete themat some later date, we have little difficulty concluding thatthis would be a substantial alteration of the Medical School'scurriculum. See Davis,
442 U.S. at 413
(holding that a schoolis not required to make substantial modifications to accommo-date a handicapped student).[11] Zukle argues that the Medical School allowed numer-ous students to rearrange their clerkship schedules, and thusthere is a material issue of fact as to whether her request wasreasonable. However, while the students that Zukle mentionswere allowed to remedy failing grades by retaking clerkshipsor exams, none was allowed to begin a clerkship, interrupt it,begin another clerkship, and retake the second half of the firstclerkship at a later point. The facts are undisputed that no stu-dent had been allowed to rearrange their clerkship schedule asZukle requested. Indeed, Zukle admitted in the district courtthat "no student has been permitted to finish an interruptedcourse in the fashion [she] requested because it would requiresubstantial curricular alteration."14 We defer to the MedicalSchool's academic decision to require students to completecourses once they are begun and conclude, therefore, that thisrequested accommodation was not reasonable.BTwo weeks before the scheduled written exam in her Medi-cine clerkship, Zukle asked Dr. Silva, her advisor, if she couldhave more time to prepare for the exam because she wasbehind in the readings. Zukle testified that she specificallyrequested to leave the hospital early every day so that shecould spend more time preparing for the written exam inMedicine. Dr. Silva and Zukle spoke with the Instructor ofRecord in Zukle's Medicine clerkship, Dr. Lawrence. Dr.Lawrence told Zukle that she could not excuse her from thein-hospital part of the clerkship. Dr. Lawrence testified thatshe denied this request because she thought that it would beunfair to the other students.[12] The Medical School presented uncontradicted evi-dence that giving Zukle reduced clinical time would have fun-damentally altered the nature of the Medical Schoolcurriculum. The Medical School presented the affidavit ofDean Lewis in which he explained the significance of theclinical portion of the Medical School curriculum: The third-year clinical clerkships are designed to simulate the practice of medicine . . . . Depending on the specialty and the setting, students are generally required to be "on call" at the hospital through an evening and night one or more times each week. Other than these call nights, students remain at the hospital or clinic during day time hours on a sched- ule similar to that expected of clinicians. . . . Releas- ing a student from a significant number of scheduled hours during the course of a rotation would compro- mise the clerkship's curricular purpose, i.e. the simu- lation of medical practice.We defer to the Medical School's academic decision that thein-hospital portion of a clerkship is a vital part of medicaleducation and that allowing a student to be excused from thisrequirement would sacrifice the integrity of its program. Thus,we conclude that neither the ADA nor the Rehabilitation Actrequire the Medical School to make this accommodation.[13] In any event, the evidence shows that Zukle was notprejudiced by the Medical School's failure to grant thisaccommodation because she in fact passed the Medicine writ-ten exam. See Ellis v. Morehouse Sch. of Med. , 925 F.Supp.1529, 1548 (N.D. Ga. 1996) (noting that student was not prej-udiced by failure to accommodate because he passed exam forwhich he was denied accommodation). Zukle's low score onthe exam did not help her Medicine grade, but Zukle failedthe clerkship because of her inadequate clinical performance.Indeed, as the district court stated, because Zukle was doingso poorly in the clinical portion of the clerkship,"[g]iving[her] time off from the clinical portion to study for the test[ ]could not have helped, but could only have further damaged,her already marginal clinical skills." Thus, Zukle did notestablish that she would have been able to meet the MedicalSchool's requirements with the requested accommodation.CFinally, after she was dismissed, Zukle requested that thead hoc Board place her on a decelerated schedule during theclinical portion of her studies. Specifically, Zukle sought eightweeks off before each clerkship to read the assigned text forthat clerkship in its entirety.15Zukle presented evidence that the Medical School regularlyallowed students to proceed on a decelerated schedule.Indeed, Zukle herself was allowed an extra year to completethe pre-clinical curriculum. However, no student had beenprovided the specific accommodation that Zukle requested,i.e., taking eight weeks off between clerkships. Furthermore,simply because the Medical School had granted other stu-dents' requests to proceed on a decelerated schedule, does notmean that Zukle's request was reasonable. The reasonablenessof Zukle's request must be evaluated in light of Zukle's par-ticular circumstances.[14] We agree with the district court that the Board's denialof Zukle's request to proceed on a decelerated schedule wasa "rationally justifiable conclusion." See Wynne II, 976 F.2dat 793 (quoting Wynne I, 932 F.2d at 26). The Board notedthat, even on a decelerated schedule during the pre-clinicalphase, Zukle experienced severe academic difficulties: Zukleearned deficient grades in five courses and failed the USMLEexam on her first attempt even though she had taken severalpre-clinical courses twice. The Board noted that there is "afair amount of overlap on written exams of material fromsecond-year courses and that the clinical work overlaps withthe written." In sum, the evidence makes clear that the decel-erated schedule would not have aided Zukle in meeting theMedical School's academic standards. Given Zukle's unenvi-able academic record, allowing her to remain in MedicalSchool on a decelerated schedule would have lowered theMedical School's academic standards, which it was notrequired to do to accommodate Zukle. See Davis , 442 U.S. at413.16IVIn conclusion, we are persuaded that Zukle failed to estab-lish that she could meet the essential eligibility requirementsof the Medical School with the aid of reasonable accommoda-tions. Accordingly, she failed to establish a prima facie caseof disability discrimination under the ADA or the Rehabilita-tion Act.AFFIRMED. the end
___________________________FOOTNOTES 1 The Medical School assigns letter grades of A, B, C, D, F, I and Y tomeasure academic performance. A "Y" grade in a pre-clinical course isprovisional; it means that a student has earned a failing grade but will beor has been permitted to retake the exam. However, a "Y" grade in a clini-cal clerkship indicates unsatisfactory performance in a major portion ofthat clerkship and may not be converted until the student repeats that por-tion of the clerkship.2 The Medical School's Committee on Student Evaluation and Promo-tion, which consists of two Promotions Boards and the SEC, monitors theprogress of students with academic difficulties. Promotions Board Areviews preclinical students (i.e. students in the first two years of study);Promotions Board B reviews clinical students (i.e. students in the last twoyears of study). Generally, the SEC meets with students and their advisorsbefore making a recommendation to the appropriate Promotions Board.The Promotions Board then conducts an independent review of the stu-dent's performance and decides whether to accept or reject the SEC's rec-ommendation.3.The Medical School's bylaws provide that a student is subject to dis-missal if she receives two or more failing grades within one academicquarter. Zukle received two "Y" grades in her first quarter.4 The Medical School's bylaws provide that a student on academic pro-bation is required to remedy her deficient grades, and is subject to dis-missal for failure to do so or if she receives another deficient grade whileon academic probation.5 Under timed conditions, Zukle's reading comprehension is in the 2ndpercentile, whereas when untimed her comprehension is in the 83rd per-centile.6 Zukle's score placed her in the 5th percentile nationally.7 Zukle's score placed her in the 9th percentile nationally.8 The Promotions Board had voted to remove Zukle from academic pro-bation in October 1994. At that time, it was unaware of her OB-GYNclerkship grade. The Medical School's bylaws provide that a student whoreceives a "Y" grade in her third or fourth years is automatically placedon academic probation at the time of receipt of the grade.9 The Medical School's bylaws provide that any student who has beendismissed from the Medical School may appeal her dismissal to the Dean,who in turn may appoint an ad hoc board consisting of five faculty mem-bers and two students to review the appeal. The Dean is responsible forthe final disposition of the appeal.10 Zukle did not raise her race, sex or sexual harassment claims in heropening brief; therefore she has waived any appeal from the districtcourt's grant of summary judgment on these claims. See Sanchez v.Pacific Powder Co., 147 F.3d 1097, 1100 (9th Cir. 1998) ("Ordinarily, aparty's failure to raise an issue in the opening brief constitutes a waiverof that issue.").11 There is no significant difference in analysis of the rights and obliga-tions created by the ADA and the Rehabilitation Act. See 42 U.S.C.S 12133 ("The remedies, procedures, and rights set forth in [the Rehabili-tation Act] shall be the remedies, procedures, and rights [applicable toADA claims]."); Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998) (statingthat courts are required to "construe the ADA to grant at least as muchprotection as provided by the regulations implementing the RehabilitationAct"). Thus, courts have applied the same analysis to claims broughtunder both statutes, see Doe v. Univ. of Maryland Med. Sys. Corp., 50F.3d 1261, 1265 n.9 (4th Cir. 1995) ("Because the language of the twostatutes is substantially the same, we apply the same analysis to both."),and courts routinely look to Rehabilitation Act case law to interpret therights and obligations created by the ADA, see, e.g., Collings v. LongviewFibre Co., 63 F.3d 828, 832 n. 3 (9th Cir. 1995) ("The legislative historyof the ADA indicates that Congress intended judicial interpretation of theRehabilitation Act be incorporated by reference when interpreting theADA."); Theriault v. Flynn, 162 F.3d 46, 48 n.3 (1st. Cir. 1998) ("TitleII of the ADA was expressly modeled after Section 504 of the Rehabilita-tion Act, and is to be interpreted consistently with that provision."); cf.Weinreich v. Los Angeles County Metro. Transp. Auth. , 114 F.3d 976, 978(9th Cir. 1997) ("Title II of the ADA was expressly modeled after Section504 of the Rehabilitation Act . . . ." (citations omitted)).12 Zukle does not argue that she could meet the Medical School's essen-tial eligibility requirements without the aid of reasonable accommodations.Indeed, Zukle could not make this argument. As discussed below, Zuklehad failed to meet the Medical School's essential eligibility requirementsat the time she was dismissed. Because she had received a failing gradewhile on academic probation, she was subject to dismissal pursuant to theMedical School's bylaws. Accordingly, Zukle must show that she canmeet the academic standards of the Medical School with the aid of reason-able accommodations. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 748 n.2(9th Cir. 1998).13 Each circuit has, however, developed its own formulation of the defer-ence standard. Compare Doe, 666 F.2d at 776 (holding that in determiningwhether a plaintiff is otherwise qualified to attend medical school,"considerable judicial deference must be paid to the evaluation made bythe institution itself, absent proof that its standards and its application ofthem serve no other purpose than to deny an education to handicappedpersons." (emphasis added)), with McGregor , 3 F.3d at 859 ("[A]bsentevidence of discriminatory intent or disparate impact, we must accordreasonable deference to the [school's] academic decisions." (emphasisadded)).14 Zukle stated that this statement was "undisputed" in her Response toSeparate Statement of Undisputed Facts.15 The Regents allege that Zukle has abandoned this argument on appeal.While Zukle's presentation of this issue in her opening brief is not exten-sive, we do not feel that it is so lacking that she can be said to have aban-doned it.16 Furthermore, Zukle requested this accommodation after the MedicalSchool's decision to dismiss her. At no time prior to her dismissal did sherequest that the Medical School place her on a decelerated schedule. Herfailure to request this accommodation earlier contributes to our finding ofunreasonableness. See Wynne II, 976 F.2d at 796 n.3 (finding relevant toreasonableness inquiry the fact that student did not ask for accommodation"until after [the school] sent him packing and adversary proceedings wereunderway").