Departments
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Week of 20 February 1998 |
Vol. I, No. 21 |
Feature
Article
Foreign language requirement and lawyers' fee recovery at issue
Learning disabilities lawsuit back in court
by Brian Fitzgerald
On February 12, almost five months after her decision on a lawsuit filed by 10 learning- disabled students against Boston University, U. S. District Court Judge Patti Saris heard oral arguments on briefs submitted by both parties since her ruling on this emotionally charged case.
The setting was a familiar one: the 15th-floor courtroom in downtown Boston's John W. McCormack Building. Attorneys squared off once again -- this time over the College of Arts and Sciences' deliberations last fall examining the foreign language requirement in its liberal arts program. Also at issue was an attempt by the plaintiffs' lawyers to claim $2.4 million in fees and costs in trying the case, a tab BU's lawyers found excessive and insufficiently supported.
In her original ruling, Saris deferred action on the plaintiffs' demand that BU's College of Arts and Sciences allow students with learning disabilities to substitute courses for its foreign language requirement. On August 15 she mandated that CAS establish a deliberative procedure for considering whether modification of its degree requirement in foreign language would fundamentally alter the nature of the College's degree program. After deliberations last fall, the CAS Dean's Advisory Committee, which Saris had accepted as a proper forum, recommended upholding the College's foreign language requirement. However, the plaintiffs' lawyers say that the Committee didn't examine the feasibility of alternatives to foreign language courses or consult a single expert in learning disabilities.
The lawsuit, the first class-action suit of its kind, resulted in a two-week trial last April. Both sides declared victory after the ruling. The court had found that BU's current procedures for evaluating learning-disabled students' requests for accommodations comply with all applicable federal laws. Saris also found that federal law "does not require a university to modify degree requirements that it determines are a fundamental part of its academic program by providing learning-disabled students with course substitutions."
On the other hand, Saris also ruled last August that Boston University violated the Americans with Disabilities Act (ADA) when in late 1995 and 1996 BU's Learning Disabilities Support Services was being revamped to rectify what the University says were lax procedures and unauthorized granting of improper accommodations, including course substitutions.
Although the ADA allows a prevailing party to recover a reasonable attorney's fee, including litigation expenses and costs, BU's lawyers vociferously challenged the plaintiffs' billing practices. BU Attorney Erika Geetter argued that the request is "grossly overreaching." The plaintiffs' lawyers were accused of using inflated rates, overstating their success in the case, and billing "an enormous number of hours attributable to improper staffing, misallocation of resources, duplication of effort, and unsuccessful motions," according to the defendants' brief. The plaintiffs claim that their multiple billers, more than 30 in all, worked more than 8,700 hours on the case.
The University's lawyers argued that the plaintiffs have barely met the threshold of the term "prevailing party," citing other trials and pointing out that most of the University's policies were upheld and that BU prevailed in the case's most substantive matters, as well as the fact that the decision ultimately resulted in small or nominal awards to 6 of the 10 students. Two students were awarded $1 each in damages and four others were awarded a total of $29,450.
BU's attorneys also stated that the plaintiffs' lawyers failed to itemize their costs and expenses. "Their billing records were nearly incomprehensible," said Geetter. Sid Wolinsky, one of the plaintiffs' attorneys, explained that counsel "had to put in stupendous efforts in this case," but Saris questioned his $435-an-hour fee and the inclusion of word-processing bills, which amounted to almost $18,000.
Regarding the Dean's Advisory Committee deliberations, which included presentations from five undergraduates -- two of them learning-disabled -- Wolinsky charged that it "wasn't a seriously conceived inquiry" and that Committee members "arrived at this decision by sitting around and talking with each other." He also blasted the meetings as "secret closed hearings," even though the Committee sought CAS student participation by placing an ad in the Daily Free Press on three occasions and soliciting student participation via e-mail. In addition, Provost and Dean of Arts and Sciences Dennis Berkey granted the student newspaper an interview on the subject.
The Committee, chaired by Associate Professor of Mathematics Paul Blanchard, submitted a 12-page report to the court. It concluded on a philosophical basis that course substitutions would constitute a fundamental alteration of the college's liberal arts program. The Committee also determined that CAS has always required the study of a foreign language, even during the time that unauthorized substitutions were being granted.
According to the report, ". . . it is only through the knowledge of the language of a different culture that one can obtain a deep understanding of that culture and its ways of thinking and expressing those thoughts." The report also details discussions over the years by the faculty about the reasons for the foreign language requirement. In addition, three of the five students stated during their presentations that learning a foreign language was essential to their liberal arts education.
The report states that on the recommendation of the Office of Disability Services, "foreign language instructors provide a number of substantial accommodations in the testing of learning-disabled students. Those include granting additional time and distraction-free testing environments, distributing lecture notes in advance, disregarding spelling, and replacing written with oral examinations."
"The University has clearly met the obligations of ADA," said BU attorney Larry Elswit.
Decisions on the fee recovery attempts by the plaintiffs' lawyers, along with the fate of CAS's foreign language requirement, are expected in the spring.