June 14, 2005

Appeals Court Revives Disability Lawsuit

The U.S. Court of Appeals for the Fourth Circuit on Monday revived a disability discrimination lawsuit against George Mason University.

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A three-judge panel ruled that a variety of reasons offered by the university did not justify dismissing the suit, as a lower court did. At issue is how the university responded to a complaint by a law student over a professor’s refusal to let her take extra time on an exam because of severe headaches she was experiencing. The appeals court did not rule on the merits of the case, in which the university has denied wrongdoing.

The ruling comes as students, professors and lawyers continue to debate what testing conditions — and what adjustments in those conditions — are appropriate and legally required for students with disabilities.

Carin Constantine sued George Mason over a final exam in a constitutional law course taught by Nelson Lund. Constantine suffers from “intractable migraine syndrome,” and she experienced a migraine headache while taking the exam. She asked for extra time and was turned down. She failed the exam and was then turned down in her requests to retake the exam and to have her grade adjusted.

After several months in which Constantine protested the law school’s decisions, the dean agreed to let her retake the exam. A dispute then ensued over when she should retake the exam, and she sued the university in federal court, charging discrimination under several laws, including the Americans With Disabilities Act. She also charged that her First Amendment rights were violated because, she said, she was being punished for speaking out publicly about the dispute.

Monday’s ruling reviewed several grounds on which George Mason argued that the case should be dismissed. The university made several claims related to the 11th Amendment, which generally protects states and public colleges from federal lawsuits. But the court rejected those arguments, noting rulings by other courts and indications that Congress intended for the ADA protections to apply at public institutions.

The judges also agreed that Constantine’s case had enough merit that it should not have been dismissed without a trial. The judges said that she offered evidence of possible discrimination, that the discrimination had affected her, and that her free speech rights might have been infringed upon. As a result, the judged sent the case back to a lower court to hear arguments on the merits.

Lawyers for both Constantine and the university could not be reached for comment.

But Thomas Beck, a lawyer for Professor Lund, said it was important to note that his client and the university had not yet had the chance “to explain what really happened.” Beck added, “We’ll demonstrate that the plaintiff’s allegations against Professor Lund just don’t hold water; he would not and did not treat any student in a discriminatory or unfair manner.”

Lund, Beck said, “only did his job — he gave a student the grade that, based upon her examination responses, she deserved.”

And Beck said that the case raised important issues for the rights of faculty members. Said Beck: “Professors charged with evaluating student performance must be permitted, fairly and in good faith, to evaluate such performance on its own merits, without fearing that a poor grade might become — literally — a federal case.”

— Scott Jaschik

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