Ohio Civ. Rights Comm. v. Case W. Res. Univ. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Ohio Civil Rights Commission et al., Appellants, v. Case Western Reserve
University, Appellee.
[Cite as Ohio Civ. Rights Comm. v. Case W. Res. Univ. (1996), ___ Ohio St.3d
___.]
Civil Rights Commission -- Elements of prima facie case of
discrimination in education under R.C. 4112.022(A) -- "Otherwise
qualified" handicapped person, defined.

(No. 95-387 -- Submitted March 6, 1996 -- Decided July 31, 1996.)
1. A prima facie case of discrimination in education under R.C. 4112.022(A)

includes three elements: (1) the plaintiff is a handicapped person within

the meaning of R.C. 4112.01(A)(13); (2) the plaintiff is otherwise

qualified to participate in the program; and (3) the plaintiff is being

excluded from the program on the basis of a handicap.
2. An "otherwise qualified" handicapped person is one who is able to safely

and substantially perform an educational program's essential

requirements with reasonable accommodation. An accommodation is

not reasonable where it requires fundamental alterations in the essential

nature of the program or imposes an undue financial or administrative
burden.
Appeal from the Court of Appeals for Cuyahoga County, No. 66721.

Plaintiff-appellant, Ohio Civil Rights Commission ("OCRC"), appeals
from a decision approving Case Western Reserve University's ("CWRU")
denial of a blind candidate's application for admission to its medical school.

Plaintiff-appellant, Cheryl A. Fischer ("Fischer"), completely lost her
vision during her junior year of undergraduate study at CWRU. To
accommodate Fischer's handicap while she pursued a chemistry degree,
CWRU provided Fischer with lab assistants and readers, modified the written
exams to oral ones, and extended the time periods in which to take exams.
Fischer also used a closed circuit television to magnify images before she
totally lost her sight, and books on tape to assist her. Thus, in spite of her
handicap, Fischer successfully completed all of CWRU's academic
requirements and received her baccalaureate degree, cum laude, in 1987.
2

Following graduation, Fischer sought admission to medical school. All
medical colleges in the United States belong to the Association of American
Medical Colleges ("AAMC"). In January 1979, the AAMC adopted the
"Report of the Special Advisory Panel on Technical Standards for Medical
School Admission." The AAMC Technical Standards Report requires
candidates for a medical school degree to have the ability to observe.
Specifically, the report states, "[t]he candidate must be able to observe
demonstrations and experiments in the basic sciences * * *. A candidate must
be able to observe a patient accurately at a distance and close at hand.
Observation necessitates the functional use of the sense of vision and somatic
sensation." The Technical Report further states, "a candidate should be able to
perform in a reasonably independent manner. The use of a trained intermediary
means that a candidate's judgment must be mediated by someone else's power
of selection and observation." Although medical colleges are not required to
follow the Technical Standards Report, the AAMC encouraged medical schools
to use it as a guideline in developing their own standards.
3

In 1987, Cheryl applied to the medical school at CWRU.1 CWRU used
the AAMC Technical Standards Report as a guideline in evaluating the four
thousand to five thousand preliminary applications received annually for a
class total of one hundred thirty-eight.2 Due to Fischer's sufficient academic
credentials and extraordinary letters of recommendation, Dr. Albert C. Kirby,
Associate Dean for Admissions and Student Affairs at CWRU's medical
school, granted Fischer an interview. Subsequently, Dr. Kirby placed Fischer
on an alternate list but ultimately denied her application. The following year,
Fischer reapplied to CWRU.3

In this second application process, Fischer was one of seven hundred
applicants granted an interview and the only applicant to be interviewed by
three Admission Committee members: Dr. Kirby, Dr. Richard B. Fratianne and
Dr. Mildred Lam. Dr. Kirby believed that CWRU should accept Fischer into
the class. Drs. Fratianne and Lam concluded that a blind student would be
unable to complete the requirements of the medical school program.
4

CWRU's four-year curriculum consists of three basic components: the
core academic program, the flexible program, and the patient-based program.
The core academic program occupies the medical student's first two years, and
is taught using traditional methods such as lectures, lab experiments and
textbooks. The core academic program consists of study in the basic sciences,
such as anatomy, histology, pathology, and physiology. The flexible program
consists of electives, allowing students to engage in independent research and
study in a specific area. The patient-based program includes clerkships in
internal medicine, pediatrics, surgery, obstetrics and gynecology, psychiatry
and primary care. In these different clerkships, students provide direct patient
care. For example, students must perform a complete physical exam, review
laboratory test results, review patient charts and perform basic medical
procedures, such as starting an I.V., administering medications through veins,
drawing blood, and responding in emergency situations. The surgery clerkship
includes rotations in the emergency room and intensive care unit.
5

After interviewing Fischer, Dr. Fratianne, Associate Professor of Surgery
at CWRU, concluded that Fischer would be unable to complete the medical
school program. He believed that due to her lack of vision, Fischer would be
unable to exercise independent judgment when reading an X-ray, unable to
start an I.V., and unable to effectively participate in the surgery clerkship.

Following an interview with Fischer, Dr. Lam, Associate Professor of
Medicine at CWRU, concluded that a blind student would be unable to
complete the first and second year courses in the basic sciences which required
the student to observe and identify various tissues and organ structures. For
example, histology requires a student to identify tissue and organ structures
through a microscope and pathology requires a student to observe how such
structures are affected by disease. She believed that no accommodation would
enable a blind student to complete these course requirements.

Dr. Lam further opined that a blind medical student could not complete
the third and fourth year clerkships. A blind student would be unable to start an
I.V., draw blood, take night call, react in emergency situations, or pass the
6

objective clinical exam which required a student to perform a physical exam
and to read an EKG and an X-ray. Dr. Lam prepared a list of forty-three
medical conditions, such as jaundice or a patient's state of consciousness,
which require good vision to diagnose. Dr. Lam also listed twenty-one medical
procedures, such as arterial line placement, which require good vision. Dr.
Lam concluded that an intermediary could not assist a blind medical student
because use of an intermediary would require extra time that is not available in
an emergency situation, and the observations during and the accuracy of the
physical exam would be "only as good as the intermediary." Fischer recalled
that during the interview, Dr. Lam commented that the "whole concept" of a
blind medical student was "ridiculous."

After the three interviews and after consulting other CWRU medical
school professors and students, CWRU's Admissions Committee, by a
unanimous vote, denied Fischer's application.4 Although the committee was
aware of Dr. David W. Hartman, a psychiatrist who graduated from Temple
7

University School of Medicine while totally blind in 1976, the committee did
not contact Dr. Hartman or Temple University.

Dr. Hartman's experience affected the decision-making in this case.
Temple University, in 1972, voluntarily increased the size of the incoming
class by one to accept Dr. Hartman. To facilitate his first two years of study in
the basic sciences, Dr. Hartman used a raised line drawing board to diagram
and illustrate various structures. Postdoctoral or graduate students privately
tutored Dr. Hartman by describing to him the slides of structures under
microscope and using the raised line drawing board. Other medical students
also assisted Dr. Hartman by describing experiments they conducted and
otherwise sharing information. Dr. Hartman also listened to books on tapes,
used readers, and relied on his sense of touch for classes such as anatomy.

In virtually all of his first and second year courses, Dr. Hartman required
one-on-one assistance from his professors. Dr. Hartman estimated that the
professors in the anatomy department, which included courses in gross
anatomy, neuroanatomy, embryology and histology, spent double or triple the
8

time tutoring him than they spent tutoring the average student. John R. Troyer,
Ph.D., a professor who was on the faculty at Temple when Dr. Hartman
attended, believed that the extra time he spent with Dr. Hartman took away
from time he had to tutor other students. For this reason, Dr. Troyer had
reservations about accepting another blind student.

Professors at Temple also modified their lectures to accommodate Dr.
Hartman. For example, professors diagrammed structures on the raised line
drawing board that the other students viewed under a microscope and verbally
described processes instead of visually demonstrating them. One professor
even sat next to Dr. Hartman during class and described procedures being
conducted in a class demonstration.

To facilitate his clerkships, Dr. Hartman would have a nurse, another
student, the resident or intern perform parts of a physical examination which
required visual observations and describe their observations to him. Another
student or a nurse would read patient charts and laboratory test results to him.
9

Dr. Hartman could not start an I.V. without the supervision and assistance of a
nurse and could not read an X-ray without relying on a radiologist.

During the surgical clerkship, Dr. Hartman spent only one or two days a
week for three to four hours a day in surgery, where other students spent six or
seven hours a day every day in surgery. Instead of being placed on night call
alone, Dr. Hartman was paired with another student because the hospital relied
on medical students to start I.V.s and draw blood.

Dr. Hartman's testimony revealed that his successful completion of the
school's requirements depended on the willingness of the faculty and other
students to spend the extra time describing and sharing information with him.

Following the second denial of Fischer's application to medical school,
Fischer filed a complaint with the OCRC, alleging that CWRU had
discriminated against her by denying her admission to the medical school on
the basis of her handicap. After an investigation, OCRC found it probable that
CWRU engaged in discriminatory practices in violation of R.C. 4112.022 and
filed a complaint and notice of hearing. 5
10

Following the hearing, the examiner concluded that CWRU had not
discriminated against Fischer and recommended dismissal of her complaint.
The hearing examiner found that (1) Fischer could not complete the first two
years of CWRU's requirements unless CWRU was willing to accommodate
Fischer's handicap beyond what is legally required and was willing to place an
undue burden on its teaching faculty, and (2) Fischer could not successfully
complete the core clerkships without substantial modification to the essential
nature of the program.

Upon its review of the hearing examiner's report, OCRC came to a
different conclusion. Relying heavily upon Dr. Hartman's experience, OCRC
concluded that Fischer could complete the medical school program with
reasonable accommodations that would not modify the essential nature of its
program. OCRC further found that CWRU violated an affirmative duty to
gather substantial information to ascertain whether Fischer could benefit from
the medical school's program. Finding CWRU had discriminated against
11

Fischer, OCRC issued a cease and desist order and ordered CWRU to admit
Fischer into its next class.

CWRU appealed to the Cuyahoga County Common Pleas Court, which
found that reliable, probative and substantial evidence supported OCRC's
findings of fact and conclusions of law and affirmed the OCRC order. The
Court of Appeals for Cuyahoga County reversed, holding that the record did
not support the trial court's finding that admitting Fischer would not
necessitate a modification of the essential nature of the program and would not
place an undue burden on CWRU. The court of appeals determined that the
trial court had abused its discretion by relying upon Dr. Hartman's experience
at Temple University and in finding that Temple made only reasonable
accommodations.

This cause is now before the court upon the allowance of a discretionary
appeal.
12

Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State
Solicitor, Nancy Holland Myers and Denise M. Johnson, Assistant Attorneys
General, for appellant Ohio Civil Rights Commission.

Gary, Naegele & Theado, Thomas A. Downie and Robert D. Gary;
Robert A. Dixon, Zygmunt G. Slominski and Russell D. Kornblut, for appellant
Cheryl A. Fischer.

Kelley, McCann & Livingstone, Joel A. Makee, Mark J. Valponi and
Colleen Treml, for appellee.

Ohio Legal Rights Service, Jane P. Perry and Robert S. Mills, urging
reversal for amici curiae, Ohio Legal Rights Service and National Federation of
the Blind of Ohio.

Spater, Gittes, Schulte & Kolman, Kathaleen B. Schulte and Frederick
M. Gittes, urging reversal for amicus curiae, Ohio Employment Lawyers
Association.

Chester, Willcox & Saxbe and Charles R. Saxbe; Brown, Goldstein &
Levy, Daniel F. Goldstein and Dana Whitehead, urging reversal for amici
13

curiae, National Federation of the Blind and American Society of Handicapped
Physicians.

Betty D. Montgomery, Attorney General, Simon B. Karas, Deputy Chief
Counsel, and John C. Dowling, Assistant Attorney General, urging affirmance
for amici curiae, Ohio's Public Medical Schools.

Joseph A. Keyes, Jr., Kirk B. Johnson and Michael L. Ile, urging
affirmance for amici curiae, Association of American Medical Colleges and
American Medical Association.
Cook, J. In this case, we are presented with the question of whether
CWRU violated R.C. 4112.022(A) by denying a totally blind applicant
admission to its medical school. We affirm the judgment of the court of
appeals finding no violation.
I. PRIMA FACIE CASE OF HANDICAP DISCRIMINATION

OCRC charges that CWRU violated R.C. 4112.022, which prohibits
discrimination against handicapped persons by educational institutions.
Specifically, the statute provides:
14

"It shall be an unlawful discriminatory practice for any educational
institution to discriminate against any individual on account of any handicap:

"(A) In admission or assignment to any academic program, course of
study, internship, or class offered by the institution[.]"

Similarly, Ohio Adm.Code 4112-5-09(B)(1) provides:

"Qualified handicapped persons shall not be denied admission or be
subjected to discrimination in admission or recruitment on the basis of
handicap at an educational institution covered by Chapter 4112. of the Revised
Code."

The parties agree and we hold that a prima facie case of discrimination in
education under R.C. 4112.022(A) includes three elements: (1) the plaintiff is a
handicapped person within the meaning of R.C. 4112.01(A)(13); (2) the
plaintiff was otherwise qualified to participate in the program6; and (3) the
plaintiff was excluded from the program on the basis of a handicap. See
Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 281, 25 OBR 331,
333, 496 N.E.2d 478, 480 (discrimination against handicapped in employment
15

context). See, also, Southeastern Community College v. Davis (1979), 442
U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (construing federal law prohibiting
discrimination against handicapped in education); Doherty v. S. College of
Optometry (C.A.6, 1988), 862 F.2d 570, 573, certiorari denied (1989), 493 U.S.
810, 110 S.Ct. 53, 107 L.Ed.2d 22. The parties also agree that the only
element at issue in this case is whether Cheryl Fischer is "otherwise qualified"
to participate in CWRU's medical school program.
A. OTHERWISE QUALIFIED HANDICAPPED PERSON

The term "otherwise qualified handicapped person" in the educational
discrimination context is not defined by statute or regulation. In the
employment discrimination context, however, a "qualified handicapped person"
means "a handicapped person who can safely and substantially perform the
essential functions of the job in question, with or without reasonable
accommodation." Ohio Adm.Code 4112-5-02(K). In the past, we have looked
to federal law to support a finding of discrimination under R.C. Chapter 4112.
Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm. (1991), 61 Ohio
16

St.3d 607, 575 N.E.2d 1164, certiorari denied (1992), 503 U.S. 906, 112 S.Ct.
1263, 117 L.Ed.2d 491 (federal case law interpreting Title VII of the Civil
Rights Act of 1964 applied to R.C. Chapter 4112 employment discrimination
claim). Accordingly, in the context of discrimination by educational
institutions, we refer to Section 504 of the Rehabilitation Act of 1973, codified
at Section 794, Title 29, U.S. Code, to assign meaning to the term "otherwise
qualified" handicapped person.

Our inquiry into the meaning of "otherwise qualified" as used in Section
504 begins with the United States Supreme Court's analysis in Southeastern
Community College v. Davis, supra, 442 U.S. at 397, 99 S.Ct. at 2361, 60
L.Ed.2d at 980. In that case, a deaf student alleged that a nursing school had
discriminated against her after the school refused to admit her into its program.
The Davis court defined an "otherwise qualified person" as "one who is able to
meet all of a program's requirements in spite of his handicap." Id. at 406, 99
S.Ct. at 2367, 60 L.Ed.2d at 988. Applying this definition of "otherwise
qualified," the court held that the nursing school would not be forced to accept
17

this deaf student because her inability to understand speech without reliance on
lip reading would jeopardize patient safety during the clinical phase of the
program. Id. at 407 99 S.Ct. at 2367, 60 L.Ed.2d at 989. The court did not
require the school to modify its curriculum through a waiver of the clinical
program because such an accommodation required a "fundamental alteration"
in the nursing school's program. Id. at 410, 99 S.Ct. at 2369, 60 L.Ed.2d at 990.

Six years later, the Supreme Court revisited the issue in Alexander v.
Choate (1985), 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661. In clarifying its
prior decision, the Alexander court stated, "Davis *** struck a balance between
the statutory rights of the handicapped to be integrated into society and the
legitimate interest of federal grantees in preserving the integrity of their
programs: while a grantee need not be required to make `fundamental' or
`substantial' modifications to accommodate the handicapped, it may be
required to make `reasonable' ones." Alexander at 300, 105 S.Ct. at 720, 83
L.Ed.2d at 671. Thus, Alexander modified Davis to the extent that an
18

"otherwise qualified" person is one capable of participating in the program if a
"reasonable accommodation" is available for implementation by the institution.

Most recently, the Supreme Court discussed the "otherwise qualified"
standard in School Bd. of Nassau Cty. v. Arline (1987), 480 U.S. 273, 107
S.Ct. 1123, 94 L.Ed.2d 307. The court elaborated on the definition of an
"otherwise qualified" individual:

"In the employment context, an otherwise qualified person is one who
can perform `the essential functions' of the job in question. When a
handicapped person is not able to perform the essential functions of the job, the
court must also consider whether any `reasonable accommodation' by the
employer would enable the handicapped person to perform those functions.
Accommodation is not reasonable if it either imposes `undue financial and
administrative burdens' on a grantee or requires `a fundamental alteration in
the nature of [the] program.'" (Citations omitted.) Id. at 288, 107 S.Ct. at 1131,
94 L.Ed.2d at 321, fn. 17.
19

Similarly, Ohio Adm.Code 4112-5-09(D)(1) requires educational
institutions to make necessary modifications to its academic requirements to
prevent discrimination on the basis of handicap against a qualified handicapped
applicant. Such modifications include "changes in the length of time permitted
for the completion of degree requirements, substitution of specific courses
required for the completion of degree requirements, and adaptation of the
manner in which specific courses are conducted." However, academic
requirements that the educational institution can demonstrate are "essential to
the program of instruction being pursued by such student or to any directly
related licensing requirement will not be regarded as discriminatory ***," and
do not require modification.

Applying these principles to R.C. 4112.022(A), we define an "otherwise
qualified" handicapped person as one who is able to safely and substantially
perform an educational program's essential requirements with reasonable
accommodation. An accommodation is not reasonable where it requires
20

fundamental alterations in the essential nature of the program or imposes an
undue financial or administrative burden.

Because inquiry into reasonable accommodation is not separate from but
rather is an aspect of "otherwise qualified," we further hold that as part of its
prima facie case, OCRC carries the initial burden of showing that Fischer could
safely and substantially perform the essential requirements of the program with
reasonable accommodation. See Ohio Adm.Code 4112-5-02(K); see, also,
Wood v. Omaha School Dist. (C.A.8, 1993), 985 F.2d 437, 439; Carter v.
Bennett (C.A.D.C.1988), 840 F.2d 63, 65. Thereafter, the burden shifts to
CWRU to demonstrate that Fischer is not "otherwise qualified," i.e., the
accommodations are not reasonable because they require fundamental
alterations to the essential nature of the program or because they impose undue
financial or administrative burdens. Id. CWRU may also rebut a prima facie
case of discrimination by "establishing bona fide requirements or standards for
admission or assignment to academic programs, courses, internships, or classes
* * * which requirements or standards may include reasonable qualifications
21

for demonstrating necessary skill, aptitude, physical capability, intelligence,
and previous education." R.C. 4112.022. Finally, the burden returns to OCRC
and Fischer to rebut the evidence presented by CWRU. Doe v. New York Univ.
(C.A.2, 1981), 666 F.2d 761, 776-777.
II. STANDARD OF REVIEW

Before we determine whether Fischer is otherwise qualified to
participate in the medical school program at CWRU, we note the standards
upon which we review this case. Pursuant to R.C. 4112.06(E), a trial court
must affirm a finding of discrimination under R.C. Chapter 4112, if the finding
is supported by reliable, probative and substantial evidence on the entire
record. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ.
Rights Comm. (1981), 66 Ohio St.2d 192, 20 O.O.3d 200, 421 N.E.2d 128.

The role of the appellate court in reviewing commission orders is more
limited -- to determine whether the trial court abused its discretion in finding
that there was reliable, probative and substantial evidence to support the
commission's order. See Cleveland Civ. Serv. Comm. v. Ohio Civ. Rights
22

Comm. (1991), 57 Ohio St.3d 62, 65, 565 N.E.2d 579, 582. A trial court
abuses its discretion where its decision is clearly erroneous, that is, the trial
court misapplies the law to undisputed facts. Alexander v. Mt. Carmel Med.
Ctr. (1978), 56 Ohio St.2d 155, 10 O.O.3d 332, 383 N.E.2d 564.

We agree with the court of appeals and find that the trial court abused its
discretion in finding that (1) the OCRC order was supported by reliable,
probative and substantial evidence, and (2) Fischer was "otherwise qualified"
for admission with reasonable accommodations.
A. RELIABLE, PROBATIVE & SUBSTANTIAL EVIDENCE

OCRC relied upon Dr. Hartman's experience at Temple University and
Fischer's experience at CWRU while she was an undergraduate to demonstrate
that she could complete the essential requirements of CWRU's medical
program with reasonable accommodations. The trial court agreed that Dr.
Hartman's testimony regarding Temple University's accommodations fulfilled
the requisite reliable, probative and substantial evidence to support OCRC's
order. See R.C. 4112.06(E). We disagree.
23

"Reliable" evidence is dependable or trustworthy; "probative" evidence
tends to prove the issue in question and is relevant to the issue presented; and
"substantial" evidence carries some weight or value. Our Place, Inc. v. Ohio
Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303,
1305. We find that Dr. Hartman's experience at Temple University is neither
probative nor substantial evidence to demonstrate that Fischer is currently able
to safely and substantially perform the essential requirements of CWRU's
program with reasonable accommodation.

Dr. Hartman is not an expert in medical education. He attended Temple
University twenty years ago, under entirely different circumstances than
proposed today. Temple voluntarily accepted Dr. Hartman by increasing the
class size by one. The faculty at Temple acted upon a commitment to do
whatever necessary to assist Dr. Hartman, and not upon a concept of reasonable
accommodation. Additionally, Dr. Hartman was accepted prior to the AAMC's
adoption of its technical standards for admission requiring each medical school
student to have the ability to observe. Fischer, who provided the only
24

testimony that she could complete the requirements of medical school with
accommodations, admitted that she had no familiarity with what a medical
student is required to do.

With Hartman and Fischer as its witnesses, OCRC failed to present any
probative or substantial testimony that Fischer would be able to complete
CWRU's course requirements with reasonable accommodation. CWRU,
however, presented testimony from several medical educators that a blind
student could not perform the requirements of medical school. Consequently,
the trial court abused its discretion in finding that OCRC's cease and desist
order was supported by probative or substantial evidence that Fischer could
complete the medical program at CWRU with reasonable accommodation.
B. ACCOMMODATIONS WERE NOT REASONABLE

The court of appeals also found that the trial court abused its discretion
by finding that Fischer was otherwise qualified for admission with reasonable
accommodations. Whether an accommodation is reasonable is a mixed
25

question of law and fact. Carter, 840 F.2d at 64-65, citing Pullman-Standard v.
Swint (1982), 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66.

OCRC suggests that certain accommodations such as raised line drawing
boards, tutors and faculty assistance, occasional use of sighted students, and
laboratory assistance would permit Fischer to realize the benefits of the first
two years of the medical school program. OCRC also suggests modifications
which would help her complete the required clerkships, such as the use of
intermediaries to read X-rays and patient charts and to perform parts of a
physical examination as well as the waiver of course requirements she could
not perform such as starting an I.V. or drawing blood. OCRC argues that these
accommodations are reasonable because those skills are not necessary for
Fischer to pursue a practice in psychiatry, are not necessary for CWRU to
maintain its accreditation as a medical school, and would not require a
fundamental alteration in the nature of the program, since they are not essential
to it. For the following reasons, we hold that the trial court's finding that these
26

accommodations were reasonable is clearly erroneous and an abuse of
discretion.

First, a similar argument regarding intermediaries, supervision and
course waiver was rejected by the United States Supreme Court in Davis,. 442
U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980. The court held that because the deaf
nursing student would not receive "even a rough equivalent of the training a
nursing program normally gives," the school was not required to make such a
"fundamental alteration" in its program. Id. at 410, 99 S.Ct. at 2369, 60
L.Ed.2d at 990. In the present case, all of the medical educators who testified
at the hearing agreed that it would be impossible to modify the traditional
methods of teaching in a manner that would impart the necessary skills and
information for a blind student to complete the essential course requirements.

Second, CWRU's decision not to modify its program by waiving course
requirements or permitting intermediaries to read X-rays or perform physical
examinations is an academic decision. Courts are particularly ill-equipped to
evaluate academic requirements of educational institutions. Bd. of Curators of
27

Univ. of Missouri v. Horowitz (1978), 435 U.S. 78, 92, 98 S.Ct. 948, 956, 55
L.Ed.2d 124, 136; Regents of Univ. of Michigan v. Ewing (1985), 474 U.S.
214, 226, 106 S.Ct. 507, 514, 88 L.Ed.2d 523, 533; Doe, supra, 666 F.2d at
775-776. As a result, considerable judicial deference must be paid to academic
decisions made by the institution itself unless it is shown that the standards
serve no purpose other than to deny an education to the handicapped. Id. at
776; Wood v. President & Trustees of Spring Hill College (C.A.11, 1992), 978
F.2d 1214, 1222; Strathie v. Dept. of Transp. (C.A.3, 1983), 716 F.2d 227, 231.
Furthermore, an educational institution is not required to accommodate a
handicapped person by eliminating a course requirement which is reasonably
necessary to the proper use of the degree conferred at the end of study.
Doherty, 862 F.2d at 575.

The goal of medical schools is not to produce specialized degrees but
rather general degrees in medicine which signify that the holder is a physician
prepared for further training in any area of medicine. As such, graduates must
have the knowledge and skills to function in a broad variety of clinical
28

situations and to render a wide spectrum of patient care. All students,
regardless of whether they intend to practice in psychiatry or radiology, are
required to complete a variety of course requirements including rotations in
pediatrics, gynecology and surgery.

Both the AAMC technical standards and the medical educators who
testified at the hearing rejected the use of an intermediary by a medical student.
In these medical educators' opinions, the use of an intermediary would
interfere with the student's exercise of independent judgment -- a crucial part
of developing diagnostic skills. Accordingly, a waiver of the medical school's
requirements such as starting an I.V. or reading an X-ray, or the use of an
intermediary to perform these functions would fundamentally alter the nature
of the program.

Finally, an administrative agency should accord due deference to the
findings and recommendations of its referee, especially where there exist
evidentiary conflicts. Brown v. Ohio Bur. of Emp. Serv. (1994), 70 Ohio St.3d
1, 2, 635 N.E.2d 1230, 1231. In this case, the referee concluded that Fischer
29

could not complete courses in the basic sciences without placing an undue
burden on the faculty, and could not complete the clerkships without
substantial modification to the essential nature of the program. OCRC adopted
the hearing officer's findings of fact, but did not accept his recommendation.
Rather, OCRC placed great weight upon Dr. Hartman's testimony in arriving at
a conclusion contrary to the hearing officer's. As discussed supra, however, Dr.
Hartman's testimony was not probative of the issue and was insufficient to
form the basis of a finding that the accommodations were reasonable.

III. DUTY TO INVESTIGATE

Finally, OCRC contends that CWRU's failure to inquire into
technological advances to assist the blind, its failure to contact Dr. Hartman or
Temple University, and its failure to consult experts in educating the blind
during its decision-making process violated an affirmative duty to investigate
whether accommodations would enable Fischer to complete the medical school
program.
30

OCRC relies on Mantolete v. Bolger (C.A.9, 1985), 767 F.2d 1416, in
support of an affirmative duty to investigate. In Mantolete, the court
considered the definition of a qualified handicapped person in the context of
Section 501 of the Rehabilitation Act of 1973, codified at Section 791, Title 29,
U.S. Code. Section 501 prohibits handicap discrimination by federal
employers, requiring such employers to take affirmative action against
discrimination. That section and its regulations imply that "a more active and
extensive effort than `non-discrimination' must be made to eliminate barriers to
employment of the handicapped in federal agencies, departments,
instrumentalities and contractors." Id. at 1422. The Mantolete court imposed a
duty upon federal employers "to gather sufficient information from the
applicant and from qualified experts as needed to determine what
accommodations are necessary to enable the applicant to perform the job
safely." (Emphasis added.) Id. at 1423. As noted in the concurring opinion in
Mantolete, however, "impos[ing] demanding information-gathering
requirements upon federal employers" is justified by the express "affirmative
31

action" language of Section 501 -- language that does not appear in Section
504. Id. at 1425 (Rafeedie, J., concurring). Thus, OCRC's reliance on
Mantolete is misplaced.7

The United States Supreme Court recognized that in order to protect
handicapped individuals from "deprivations based on prejudice, stereotypes, or
unfounded fear," a determination as to whether an individual is otherwise
qualified should in "most cases" be made in the context of an "individualized
inquiry into the relation between the requirements of the program and the
abilities of the individual." Arline, 480 U.S. at 287, 107 S.Ct. at 1130-1131, 94
L.Ed.2d at 320; Buck v. United States Dept. of Transp. (C.A.D.C. 1995), 56
F.3d 1406, 1408.

Similarly, Ohio law does not support the imposition of a duty to
investigate in all cases. Rather, R.C. 4112.022 contemplates that there will be
situations in which a school could justifiably exclude all persons with a
particular handicap from admission to a program. R.C. 4112.022 does not
consider an act discriminatory where it is based upon a bona fide requirement
32

or standard for admission. OCRC argues that vision is not a bona fide physical
requirement for admission to medical school because CWRU failed to adopt
the vision requirement prior to the rejection of Fischer's application.

Again, we must disagree. Regardless of when CWRU adopted its own
set of admissions standards and whether the AAMC standards are mandatory,
the AAMC technical standards represent a comprehensive study supporting
denial of admission to blind medical school applicants. Once CWRU confirmed
the complete absence of an ability to observe, CWRU could deny Fischer's
application based upon a bona fide standard for admission to the medical
school.8

IV. CONCLUSION

We agree with the court of appeals and find that the trial court abused its
discretion in finding that the OCRC order was supported by reliable, probative
and substantial evidence and that Fischer was otherwise qualified to participate
in the medical school program. First, the trial court abused its discretion in
finding that OCRC's cease and desist order was supported by probative or
33

substantial evidence because the testimony of Dr. Hartman was neither
probative nor substantial on the issue of whether Fischer could complete
CWRU's requirements with reasonable accommodation. Second, the trial
court's findings that the modifications were reasonable and that Fischer was
"otherwise qualified" to participate in CWRU's medical school program were
clearly erroneous and an abuse of discretion because the accommodations
suggested by Fischer would (1) require fundamental alterations to the academic
requirements essential to the program of instruction, and (2) impose an undue
burden upon CWRU's faculty. Finally, once CWRU confirmed her complete
absence of an ability to observe, CWRU could deny Fischer's application based
upon a bona fide standard for admission to the medical school.
Judgment
affirmed.

MOYER, C.J., and POWELL, J., concur.
F.E. SWEENEY, J., concurs in the syllabus and judgment only.

DOUGLAS, RESNICK and PFEIFER, JJ., dissent.
34

STEPHEN W. POWELL, J., of the Twelfth Appellate District, sitting for
WRIGHT, J.
FOOTNOTES
1 That same year, Fischer also applied to the medical schools at Ohio State
University, University of Cincinnati, University of Toledo and Temple
University. Ohio State University also placed Fischer on an alternate list.
However, all of the schools denied her admission.
2 CWRU did not formally adopt its own technical admissions standards until
June 1990. These standards also require that an applicant have sufficient use of
the sense of vision and the ability to observe both at a distance and close at
hand.
3 Fischer also reapplied to Ohio State University and, that same year, applied to
the medical schools at Wright State University, George Washington University,
and Georgetown University, among others. All of these schools denied Fischer
admission.
35

4 CWRU had previously offered admission to students with handicaps such as
paraplegia, visual and hearing impairments, and dyslexia.
5 Fischer also filed charges against the medical schools at the Ohio State
University and Wright State University, alleging discrimination on the basis of
her handicap. Following an investigation, however, OCRC did not find
probable cause against these institutions and did not file complaints.
6 The term "otherwise qualified" appears in Section 504 of the Rehabilitation
Act of 1973 ("Section 504"), codified at Section 794, Title 29, U.S. Code.
Section 504, as amended, provides that "[n]o otherwise qualified individual
with disability * * * shall, solely by reason of his or her 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." Section 794(a), Title 29, U.S. Code.
7 The dissent criticizes our discussion of Mantolete v. Bolger (C.A.9, 1985),
767 F.2d 1416, as being "selectively extracted" from the cases cited by OCRC.
However, the other cases were cited only in a footnote to OCRC's Reply Brief,
36

and it was Fischer who characterized Mantolete as the "seminal case" on the
issue of an affirmative duty to investigate. Furthermore, our discussion of
Sections 501 and 504 is in response to the appellants' view that such cases are
persuasive authority for the proposition of an affirmative duty to investigate.
This case, however, was brought only under R.C. Chapter 4112.
8 The Office for Civil Rights, United States Department of Education,
determined that CWRU's 1991 denial of Fischer's application to the medical
school on the basis of the AAMC Technical Standards was consistent with
Section 504 and dismissed Fischer's complaint against CWRU.

DOUGLAS, J., dissenting. This case is not about whether appellant,
Cheryl A. Fischer, a non-sighted person, should or should not be admitted to
Case Western Reserve University's medical school. This case is about whether
the university must, as all others, comply with R.C. 4112.022 and Section 504
of the Rehabilitation Act of 1973, Section 794, Title 29, U.S. Code, or may the
university rely, as it did and the majority does, on the blanket exclusion
standard of the Association of American Medical Colleges.
37

The law mandates a clear and affirmative duty to investigate whether
reasonable accommodations could be made by the medical school for Fischer's
needs. It is conceivable that after such investigation, accommodations required
to facilitate Fischer's education would require more than a "reasonable" effort.
If so, then admission could be lawfully denied. Conversely, an investigation by
the university might have produced information that would be helpful not only
in Fischer's case but, also, in other cases where physically challenged
individuals might seek admission.

Accordingly, because I believe that the university violated its lawfully
mandated affirmative duty to gather information as to whether it could, or
could not, reasonably accommodate the needs of Fischer, I must respectfully,
on this ground, dissent.

ALICE ROBIE RESNICK, J., dissenting. "Prejudice" is defined as "an
opinion or leaning adverse to anything without just grounds or before sufficient
knowledge." Webster's Third New International Dictionary (1986) 1788.
Today, the majority opines that no reasonable accommodations can be made
38

which would enable a blind student to complete the medical school program.
In so doing, the majority literally divests itself of knowledge to the contrary by
completely disregarding as not probative or substantial the testimony of an
individual who, while totally blind, was admitted to and graduated from
medical school, and is a board-certified practicing psychiatrist who also
happens to teach in his field. This enables the majority to rely solely on the
testimony of the very personnel who have prejudged the "whole concept" of a
blind medical student as "ridiculous," while simultaneously holding that those
persons had no duty to investigate whether reasonable accommodations could
be made to assist a blind student in completing the medical school program.
This is a case of prejudice, pure and simple. I dissent.
I. DUTY TO INVESTIGATE

R.C. 4112.022, like Section 504 of the Rehabilitation Act of 1973,
Section 794, Title 29, U.S.Code, is designed to protect "handicapped
individuals from deprivations based on prejudice, stereotypes, or unfounded
fear, while giving appropriate weight to such legitimate concerns of grantees as
39

avoiding exposing others to significant health and safety risks." School Bd. of
Nassau Cty. v. Arline (1987), 480 U.S. 273, 287, 107 S.Ct. 1123, 1131, 94
L.Ed.2d 307, 320. It is a statute aimed at means, not ends. At a fundamental
level, it provides for a method of evaluation grounded in knowledge. One
would suppose, therefore, that the duty to investigate is axiomatic. It should be
obvious to any reasonable person that in order to give meaningful
consideration to whether reasonable accommodations would enable a blind
student to effectively complete the medical school program, the medical school
must explore the nature and benefit of available methods of accommodating the
blind.

Nevertheless, the majority impugns the contention that Case Western
Reserve University ("CWRU") had an affirmative duty to investigate whether
reasonable accommodations would enable plaintiff-appellant, Cheryl A.
Fischer, to complete the medical school program, before denying her
admittance on the basis of her visual handicap.
A. Mantolete v. Bolger
40

The majority begins its analysis of the duty to investigate by stating that
the Ohio Civil Rights Commission ("OCRC") "relies on Mantolete v. Bolger
(C.A.9, 1985), 767 F.2d 1416, in support of an affirmative duty to investigate."
The majority then distinguishes Mantolete because, "[a]s noted in the
concurring opinion in Mantolete, *** `impos[ing] demanding information-
gathering requirements upon federal employers' is justified by the express
`affirmative action' language of Section 501 [of the Rehabilitation Act of 1973,
Section 791, Title 29, U.S.Code]--language that does not appear in Section
504." The majority concludes, therefore, that "OCRC's reliance on Mantolete
is misplaced."

This portion of the majority's analysis is disconcerting, not so much in
the way it reviews Mantolete, but because it reviews Mantolete.9 Mantolete
was only one of a litany of cases cited by OCRC in support of its proposition
that there is a duty to investigate. By selectively extracting Mantolete from the
pile and simply distinguishing it from the instant case, the majority is able to
make it appear as though the commission's position on this issue is untenable.
41

In this way, the majority has managed to avoid confrontation with those courts
which hold that, under Section 504, an educational institution must make
reasonable efforts to explore alternative methods of accommodating the
handicapped. These cases reveal that the purpose and history of Section 504
dictate such a requirement and that, in the absence of a duty to investigate, the
requirement to make reasonable accommodations would be rendered
meaningless. Wynne v. Tufts Univ. School of Medicine (C.A.1, 1992), 976 F.2d
791, 795; Wynne v. Tufts Univ. School of Medicine (C.A.1, 1991), 932 F.2d 19,
25-28; Nathanson v. Med. College of Pennsylvania (C.A.3, 1991), 926 F.2d
1368, 1383-1387; Oberti v. Clementon School Dist. Bd. of Edn.
(D.C.N.J.1992), 801 F.Supp. 1392, 1406-1407, fn. 25, affirmed (C.A.3, 1993),
995 F.2d 1204; Wallace v. Veterans Administration (D.C.Kan.1988), 683
F.Supp. 758, 766; David H. v. Spring Branch Indep. School Dist.
(S.D.Tex.1983), 569 F.Supp. 1324, 1336. In addition, as observed by Donald
Jay Olenick, Accommodating the Handicapped: Rehabilitating Section 504
After Southeastern (1980), 80 Colum.L.Rev. 171, 188:
42

"[A]s a matter of fairness, the existence of such a duty should be
recognized because the institution has greater knowledge of the components of
its program than does the handicapped applicant. The institution can look to its
own experience, or, if that is not feasible, to that of other institutions in
providing education to individuals with handicaps similar to those of the
applicant in question. In addition, it will be able to seek advice concerning
possible accommodations from private and government sources. The
handicapped individual may also suggest accommodations and bring forward
relevant employment experience demonstrating that accommodations are
possible." Moreover, "institutions can consult handicapped individuals who
have completed similar programs." Id. at 188, fn. 119.

Investigation by CWRU would have revealed, at the very minimum, a
number of possible sources for exploring the prospect of accommodating a
blind medical student, including the experience of Dr. David W. Hartman and
other blind physicians, not all of whom lost vision after completing training.
See Wainapel, The Physically Disabled Physician (1987), 257 J.Am.Med.Assn.
43

2935; Wainapel & Bernbaum, The Physician With Visual Impairment or
Blindness: A Reappraisal (1986), 104 Arch.Opthalmol. 498; Hartman &
Hartman, Disabled Students and Medical School Admissions (1981), 62
Arch.Phys.Med.Rehabil. 90; Webster, Blind Internist Passes Board Exam, New
England J. Med. (May 15, 1980) 1152. In fact, these articles readily suggest
that a blind medical student or physician can succeed. "`Aside from his
surgical skill, the physician's greatest commodity in trade is his intellectual
ability to interpret and to correlate. This is not impaired by the loss of one
sensory modality.'" Wainapel, The Physically Disabled Physician, supra, at
2935, quoting Keeney & Keeney, Blindness Among Practicing Physicians
(1950), 43 Arch. Opthalmol. 1036. In fact, one article noted that "[a] broad
spectrum of adapted instruments and devices [is] available for individuals with
visual impairment, varying from the simple and mundane to the most
sophisticated high technology," and actually set forth a noncomprehensive
resource table for the visually disabled physician. Wainapel & Bernbaum, The
Physician With Visual Impairment or Blindness, supra, at 499-500.
44

CWRU either disregarded or never consulted any of these sources,
including Dr. Hartman or Temple University, in deciding not to admit Fischer.
CWRU's "refusal to investigate and consider the modifications necessary to
accommodate [Fischer] preclude it from rebutting plaintiffs' evidence that such
accommodation would neither change the essential nature of the program nor
place an undue burden upon" CWRU. Oberti, supra, 801 F.Supp. at 1406, fn.
25. See, also, Estate of Reynolds v. Dole (N.D.Cal.1990), 57 Fair Emp. Prac.
Cas. (BNA) 1848, 1870.
B. Blanket and Bona Fide Requirements

After distinguishing Mantolete, the majority attempts to explain that any
duty to investigate would not apply where the denial is based on a bona fide
requirement or standard for admission. The majority finds CWRU's blanket
exclusion of all blind medical school applicants to be bona fide because it is
based on the technical standards of the Association of American Medical
Colleges ("AAMC").
45

In general, blanket exclusions are subject to the same level of scrutiny as
are individual exclusions. As explained in Bentivegna v. United States Dept. of
Labor (C.A.9, 1982), 694 F.2d 619, 621:
"[Southeastern Community College v. Davis (1979), 442 U.S. 397, 99
S.Ct. 2361, 60 L.Ed.2d 980] cannot mean that the [employer] can discriminate
by establishing restrictive `program requirements' where it could not so
discriminate in making individual employment decisions. The Rehabilitation
Act, taken as a whole, mandates significant accommodation for the capabilities
and conditions of the handicapped. Blanket requirements must therefore be
subject to the same rigorous scrutiny as any individual decision denying
employment to a handicapped person."

As explained somewhat differently in Pandazides v. Virginia Bd. of Edn.
(C.A.4, 1991), 946 F.2d 345, 349, the "defendants cannot merely mechanically
invoke any set of requirements and pronounce the handicapped applicant or
prospective employee not otherwise qualified. The district court must look
46

behind the qualifications. To do otherwise reduces the term `otherwise
qualified' and any arbitrary set of requirements to a tautology."

Thus, blanket requirements are not ipso facto bona fide. CWRU cannot
exclude all blind medical school applicants without first investigating and
considering reasonable accommodations for the blind, any more than it can
exclude an individual applicant without conducting such an investigation.
Otherwise, an educational institution could easily circumvent the statute by the
simple expedient of turning an otherwise discriminatory act into a blanket
prohibition against a particular type of handicap. See, e.g., Connecticut Inst.
for the Blind v. Connecticut Comm. on Human Rights & Opportunities (1978),
176 Conn. 88, 94, 405 A.2d 618, 621.

The majority, however, has carved an exception in those cases where
blanket exclusions are supported, even after the fact, by guidelines adopted by
the AAMC. The only authority cited by the majority that is arguably relevant
to this issue is Buck v. United States Dept. of Transp. (C.A.D.C.1995), 56 F.3d
1406.
47

In
Buck, three deaf truck drivers sought a waiver from the Federal
Highway Administration ("FHWA") regarding its regulation requiring that
drivers of interstate commercial vehicles be able to hear. The regulations at
issue were promulgated pursuant to the Motor Carrier Safety Act, which
requires the Secretary of Transportation to promulgate regulations ensuring that
"the physical condition of operators of commercial motor vehicles is adequate
to enable them to operate the vehicles safely." Section 31136(a)(3), Title 49,
U.S.Code. The FHWA denied the requests and the court denied the petitions
for review.

In denying petitioners relief, the court explained as follows:

"The petitioners *** misstate the issue when they argue that the agency
must decide whether a deaf individual is able to operate a truck safely in spite
of his handicap. They are really launching a collateral attack upon the validity
of the hearing requirement itself, arguing in effect that the FHWA erred in
determining that the ability to hear with the specified acuity is necessary in
order to operate a vehicle safely. *** [T]he proper forum in which to get the
48

relief the petitioners seek is the FHWA, in a proceeding to modify or repeal the
rule itself. The agency is in fact in the process of conducting such a
rulemaking, 58 Fed.Reg. 65634, and the petitioners have already filed
comments therein." Id., 56 F.3d at 1409.

Unwittingly, the majority has elevated the status of the AAMC
guidelines to the level of a federal regulation. This is particularly inappropriate
for several reasons. First, the AAMC is not a legislative body. See Liaison
Committee on Medical Education, Functions and Structure of a Medical
School, Standards for Accreditation of Medical Education Programs Leading to
the M.D. Degree (1985) 5. There is no evidence that any legislative body, state
or federal, has directly or indirectly considered, let alone adopted, the subject
AAMC guidelines, much less interpreted them to preclude admission to all
blind applicants to medical school.

Additionally, Donald G. Kassebaum, M.D., who is secretary to the
Liaison Committee on Medical Education ("LCME"), testified that the AAMC
plays no role specifically in the accreditation of United States medical schools,
49

that the decision about accreditation is made wholly by the LCME, that the
LCME has devised no accreditation standards which would prohibit the
admission of blind applicants to medical school, that the failure of a medical
school to adopt the AAMC guidelines would not affect accreditation, and that
the "Report on Technical Standards" was not even published as AAMC policy,
but as guidelines for use by schools in developing their own individual
technical standards.

There is no reason, therefore, to give the AAMC guidelines accrediting,
let alone legislative, force. In fact, in McGregor v. Louisiana State Univ. Bd. of
Supervisors (C.A.5, 1993), 3 F.3d 850, 859, certiorari denied (1994), 510 U.S.
___, 114 S.Ct. 1103, 127 L.Ed.2d 415, the court explained that "whether the
[American Bar Association] accredits part-time programs is not determinative
of reasonableness under the Rehabilitation Act, and we refrain from giving
ABA accreditation such adjudicatory effect." Accordingly, CWRU's after-the-
fact reliance on the AAMC guidelines does not transform its blanket preclusion
50

of blind medical students into a bona fide requirement or standard for
admission, obviating its duty to investigate.
II. STANDARD OF REVIEW

This portion of the majority's opinion is, quite frankly, astonishing. The
majority sets forth some well-established standards of review. One of these
standards is that an appellate court cannot reverse a trial court's judgment
unless it finds that "the trial court abused its discretion in finding that there was
reliable, probative and substantial evidence to support the commission's order.
See Cleveland Civ. Serv. Comm. v. Ohio Civ. Rights Comm. (1991), 57 Ohio
St.3d 62, 65, 565 N.E.2d 579, 582."

Dr. Hartman is a psychiatrist. Dr. Hartman has been totally blind since
the age of eight. He graduated from Gettysburg College in 1972, summa cum
laude and as a Phi Beta Kappa. He attended medical school at Temple
University from 1972 to 1976. He graduated from medical school and became
a board-certified practicing psychiatrist. He was assistant professor of
psychiatry at the University of Pennsylvania from 1980 to 1982 and presently
51

serves as volunteer faculty at the University of Virginia. Dr. Hartman's
curriculum vitae reads like a five-page laundry list of accomplishments,
appointments, awards and publications.

Dr. Hartman's testimony in this case consisted of ninety-four transcribed
pages of examination primarily concerning the issue of accommodations made
for him at Temple's medical school. Dr. Hartman completed all required
courses and clerkships at Temple. No courses or clerkships were waived
because of his blindness. He completed studies in anatomy, histology,
microscopic anatomy, biochemistry, neuroanatomy, physiology, pathology, and
pharmacology. He successfully completed his clerkships, including rotations
in internal medicine, general surgery, psychiatry, obstetrics and gynecology,
pediatrics, plastic surgery, neurology, and emergency room medicine.

Dr. Hartman was able to complete these courses and clerkships by use of
various accommodating aids, including raised line drawings, models, guidance
and assistance from other students, laboratory technicians and professors,
reliance on his other senses such as hearing and touch, and tape recorders. He
52

also suggested that there may be some additional technological aids that would
be of assistance, such as computerized voice reading or computer printing in
Braille.

With Dr. Hartman's testimony staring it in the face, how can the majority
conclude that the trial court abused its discretion in upholding the OCRC's
order that a blind medical student could perform the requirements of medical
school with reasonable accommodation? No problem--simply ignore it. As
incredible as it sounds, the majority finds that "Dr. Hartman's experience at
Temple University is neither probative nor substantial evidence to demonstrate
that Fischer is currently able to safely and substantially perform the essential
requirements of CWRU's program with reasonable accommodation."

In support, the majority explains that:

"Dr. Hartman is not an expert in medical education. He attended Temple
University twenty years ago, under entirely different circumstances than
proposed today. Temple voluntarily accepted Dr. Hartman by increasing the
class size by one. The faculty at Temple acted upon a commitment to do
53

whatever necessary to assist Dr. Hartman, and not upon a concept of reasonable
accommodation. Additionally, Dr. Hartman was accepted prior to the AAMC's
adoption of its technical standards for admission requiring each medical school
student to have the ability to observe."

This explanation serves only to enforce the majority's commitment to rid
itself of Dr. Hartman's testimony. No portion of this explanation has anything
to do with whether Dr. Hartman's testimony constitutes probative or substantial
evidence in this case. Whether or not Dr. Hartman is a so-called "expert in
medical education," there is no rule that a witness must qualify as an expert in
medical education in order to testify in a handicap discrimination case such as
this one. In fact, Dr. Hartman's testimony was not offered for any opinions he
might hold relative to medical education. Instead, the relevance and value of
Dr. Hartman's testimony lie in the nature of his experiences and the character
of the accommodations made for him at Temple. Moreover, such a rule would
be absurd. It would exclude virtually all testimony, both lay and expert,
relevant to the issue of available accommodations vis-à-vis the capabilities and
54

limitations of particular handicaps. Additionally, the majority does not reveal
what qualifies someone as such an expert or the justification for imposing any
particular set of qualifications. For example, what justification could possibly
support disregarding Dr. Hartman's testimony, while considering the testimony
of Albert C. Kirby and John R. Troyer, both of whom the majority accepts as
"medical educators," but neither of whom had ever attended medical school?

Likewise, the circumstances under which Dr. Hartman was accepted at
Temple have no bearing on the relevance or value of his testimony in this case.
The level of Temple's commitment to Dr. Hartman does not necessarily reflect
the character of its actions. Simply stated, just because Temple was prepared to
do more for Dr. Hartman than what was required does not mean that what
Temple actually did for Dr. Hartman was unreasonable. What is relevant and
valuable to the issue of reasonable accommodation in this case is the nature and
extent of the actual accommodations made for Dr. Hartman at Temple, not the
state of mind of Temple's faculty.
55

On the contrary, Dr. Hartman's experience at Temple is both probative
and substantial evidence to demonstrate that Fischer is currently able to safely
and substantially perform the essential requirements of CWRU's program with
reasonable accommodation. Dr. Hartman's experience at Temple presents a
unique opportunity by which to gauge the nature and character of
accommodations needed to enable a blind person to successfully and
beneficially complete medical school. The proof, so to speak, is in the
pudding. While his experience may not be conclusive of reasonableness, it is
certainly relevant and carries some weight. In fact, both the OCRC and the
trial court found this evidence to be rather significant. In its order below,
OCRC found that Dr. Hartman's experience and qualifications give him
"unparallelled [sic] expertise as to whether a blind student can reap the
benefits of a medical program." Additionally, Dr. Hartman has received seven
major appointments in the area of psychiatry. He served as consultant to or
member of five critical programs, including consultant to the National Institute
for Advanced Studies on the admission of blind and otherwise handicapped
56

persons into the allied health fields in compliance with Section 504. He has
published in at least six publications and participated in fifteen relevant
presentations on the subject of education and the blind. The rejection of Dr.
Hartman's testimony as not probative or substantial is pure nonsense.

After discounting Dr. Hartman's testimony (and, incidentally, Fischer's
as well), the majority is able to blatantly conclude that "[w]ith Hartman and
Fischer as its witnesses, OCRC failed to present any probative or substantial
testimony that Fischer would be able to complete CWRU's course requirements
with reasonable accommodation." Simplistic reasoning is merely a mode for
result-oriented decisions.

Still unsatisfied, the majority goes on to invoke the rule that an
administrative agency (OCRC) should accord due deference to the findings and
recommendations of its referee (hearing officer). The problem, however, is that
this rule comes into play when an agency rejects its referee's report without
reviewing the record. Even then, the rule loses its significance once the trial
court reviews the record and upholds the agency's decision. See Brown v.
57

Ohio Bur. of Emp. Serv. (1994), 70 Ohio St.3d 1, 2-3, 635 N.E.2d 1230, 1231;
Jones v. Franklin Cty. Sheriff (1990), 52 Ohio St.3d 40, 43, 555 N.E.2d 940,
944; Aldridge v. Huntington Local School Dist. Bd. of Edn. (1988), 38 Ohio
St.3d 154, 159, 527 N.E.2d 291, 295 (Douglas, J., concurring). In its statement
of the facts, the majority explains that "[u]pon its review of the hearing
examiner's report, OCRC came to a different conclusion." This is inaccurate.
In its cease and desist order, OCRC specifically explained that it rejected the
hearing examiner's report "[a]fter careful consideration of the entire record."
Absent contrary evidence, there is no basis for the majority to conclude
otherwise. Moreover, a careful reading of those two opinions below reveals
that a myriad of facts are set forth in the OCRC order that are not contained in
the hearing examiner's report. In any event, the trial court reviewed the entire
record and affirmed the OCRC.

Thus, there is no legitimate basis for discounting Dr. Hartman's
testimony, or for according deference to the hearing examiner's report.
III. CONCLUSION
58

If a particular professional door is to be closed to an entire class of
people, it should not be done in such a cavalier manner. The decision as to
whether a medical school may deny admittance to the blind is of great social
importance. It cannot be made without a complete and careful consideration of
all available information concerning possible modifications and
accommodations, as well as the capabilities and limitations of the blind.

It is our duty and responsibility under R.C. 4112.022 to ensure that
educational decisions denying admittance to the handicapped are not
discriminatory. It is, therefore, a dereliction of this duty for the majority to
allow CWRU to make such a determination without first investigating and
considering reasonable accommodations, and for the majority itself to refuse to
consider the experience of a successful blind medical student. No educational
institution, and no court, may justify a preordained conclusion by exorcising all
knowledge to the contrary without running afoul of R.C. 4112.022's mandate.

The only issue properly before the court is whether the common pleas
court abused its discretion in finding that OCRC's order was supported by
59

reliable, probative and substantial evidence. Dr. Hartman's testimony
constitutes reliable, probative and substantial evidence that Fischer could
effectively and beneficially complete the essential requirements of CWRU's
medical program.10 It is incredible that the majority has ignored this testimony
and accorded substantial judicial deference to CWRU's decisions, while
refusing to impose upon CWRU the duty to investigate in the first instance.

Justice requires that the court of appeals' decision be reversed and that
the decision of the trial court be reinstated. I therefore vehemently dissent.

DOUGLAS and PFEIFER, JJ., concur in the foregoing dissenting opinion.
FOOTNOTES

9 It should be noted, however, that even the concurring opinion in
Mantolete expressly left the issue open as to whether Section 504 imposed a
similar information-gathering requirement upon private employers. Id., 767
F.2d at 1425 (Rafeedie, D.J., concurring). Thus, any implication in the
majority's use of language that the concurring opinion in Mantolete suggested
a particular result under Section 504 is unfounded.
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10 Ohio Adm.Code 4112-5-09(D)(1) provides that:

"Educational institutions shall make such modifications to [their]
academic requirements as are necessary to ensure that such requirements do not
discriminate or have the effect of discriminating, on the basis of handicap,
against a qualified handicapped applicant or student. Academic requirements
that the educational institution can demonstrate are essential to the program of
instruction being pursued by such student or to any directly related licensing
requirement will not be regarded as discriminatory within the meaning of this
rule. Modifications may include changes in the length of time permitted for the
completion of degree requirements, substitution of specific courses required for
the completion of degree requirements, and adaptation of the manner in which
specific courses are conducted." (Emphasis added.)

The majority finds that there are certain "essential" requirements that
would have to be waived or performed through the use of intermediaries, such
as reading X-rays, performing physical examinations or starting an I.V. The
majority rejects the use of supervisory personnel and waiver, pursuant to
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Southeastern Community College v. Davis (1979), 442 U.S. 397, 410, 99 S.Ct.
2361, 2369, 60 L.Ed.2d 980, 990, on the basis that Fischer would not receive
even a rough equivalent of the training a medical education normally gives.
Moreover, the majority gives considerable judicial deference to CWRU's
decisions, and feels that these requirements are essential because they are
reasonably necessary to the proper use of the degree ultimately conferred.

If we put Dr. Hartman's testimony back into the equation, it is difficult to
find as a matter of law that Fischer would be unable to receive the benefits that
a medical education normally gives. Any determinative effect that Davis,
supra, may otherwise have had in this case dissipates upon consideration of Dr.
Hartman's testimony. In fact, it was Dr. Hartman's testimony that he could
perform a physical examination alone, and that he would stand with other
students and have an X-ray read to him. The only two areas that give him
trouble are starting an I.V. and drawing blood. OCRC specifically found that
"it has not been demonstrated that physically performing these tasks constitutes
an essential component of [CWRU's] program." Whether a requirement is
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essential is a question of fact. Hall v. United States Postal Serv. (C.A.6, 1988),
857 F.2d 1073, 1079. Moreover, in order to be considered essential, there must
be some nexus between the requirement and the prospective profession.
Pandazides, supra, 946 F.2d at 349. Additionally, CWRU is not deserving of
judicial deference in this case because it refused even to investigate the issue. I
do not believe, based on the record, that providing some visual assistance to
Fischer in these limited tasks would, as a matter of law, sacrifice the integrity
of CWRU's entire medical program. See Brennan v. Stewart (C.A.5, 1988),
834 F.2d 1248, 1262.

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