Metropolitan News-Enterprise


Wednesday, September 4, 2002


Page 3


Ninth Circuit Rejects ADA Claim by U.S. Student in Overseas Program


By a MetNews Staff Writer


A college’s overseas studies program provided reasonable accommodation of a student’s disabilities by having people carry her in places where there was no wheelchair access, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

 The panel affirmed a jury verdict rejecting Arwen Bird’s Rehabilitation Act and Americans With Disabilities Act claims against Lewis & Clark College. The jury found in Bird’s favor on a breach of fiduciary duty claim, agreeing that a college official breached a “special relationship” with Bird by failing to adequately inform her of the difficulties she would face as a wheelchair-bound student traveling around Australia, and the appeals panel upheld a $5,000 award on that issue.

Bird filed suit in 1998, two years after returning from the program. She alleged 22 violations of the two statutes, citing instances in which she was unable to shower and use a toilet, to get from her bedroom into a bathroom, to reach her lodgings or a cafeteria, or to get on a bus, without another person’s assistance.

She also cited a number of outdoor activities, including a hike and a boat tour, in which she could not participate.

The college responded that it acted reasonably under the circumstances, hiring two helpers, paying for taxis and air travel in lieu of bus transportation, arranging a wheelchair-accessible van ride in lieu of a boat tour of Stradbroke Island, providing a reduced-size wheelchair for places where her regular chair was too wide to get through, and scheduling activities so as to maximize Bird’s activities to participate.

In appealing the judgment against her, Bird contended that Judge Ann Aiken should have instructed jurors that the statutory requirement that activities be “readily accessible” to the disabled means that a disabled person must be able to participate “without assistance from others.”

But Senior Judge Alfred T. Goodwin, writing for the Ninth Circuit, said there was no such requirement in the law.

Goodwin acknowledged that under federal regulations implementing the ADA, carrying a disabled person is a disfavored means of providing access, since it may embarrass the disabled person by emphasizing the disability.

But the law does not require that the college tailor every aspect of the program to the disabled student’s need for wheelchair access, only that the disabilities be reasonably accommodated under the totality of the circumstances, the judge said. The college, he concluded, could not reasonably be expected to make structural modifications to the buildings in Australia, or to eliminate all outdoor activities from its program, in order to accommodate Bird.

 Judges Thomas G. Nelson and William A. Fletcher concurred in the opinion.

The case is Bird v. Lewis & Clark College, 00-35912.


Copyright 2002, Metropolitan News Company