Deaf student sues medical school.

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF -

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MARKOWITZ, HERBOLD, GLADE & MEHLHAF, P.C. SUITE 3000 PACWEST CENTER

1211 SW FIFTH AVENUE PORTLAND, OREGON 97204-3730

(503) 295-3085

Peter H. Glade, WSBA #15681 [email protected] MARKOWITZ, HERBOLD, GLADE & MEHLHAF, P.C. 1211 SW Fifth Avenue, Suite 3000 Portland, OR 97204-3730 Tel: (503) 295-3085 Fax: (503) 323-9105

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

ZACHARY D. FEATHERSTONE,

Plaintiff,

v. PACIFIC NORTHWEST UNIVERSITY OF HEALTH SCIENCES,

Defendant.

Civil No. 1:14-CV-3084-TOR

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

With Oral Argument: July 22, 2014 - 11:00 a.m.1

Location: U.S. District Court25 S. 3rd Street

Yakima, WA 98901

INTRODUCTION

Plaintiff, Zachary Featherstone, a deaf individual, earned admission to

defendant Pacific Northwest University’s (“PNWU”) osteopathic medicine

program. However, PNWU has refused to allow him to commence his

1 This is a tentative date hearing date. When counsel for defendant

appears, counsel for plaintiff will endeavor to find a mutually agreeable date.

Case 1:14-cv-03084-TOR Document 3 Filed 06/20/14


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(503) 295-3085

education because he is deaf. Featherstone moves for preliminary injunctive

relief so that he can begin his medical education on August 4, 2014 along with

the rest of his classmates as PNWU promised, with the necessary sign language

interpreters and captioning.

STATEMENT OF FACTS

Featherstone has long wanted to be a doctor. He also happens to be deaf.

He cannot hear or lip-read in educational settings. (Declaration of Emily Teplin

Fox,2 Ex. B (Featherstone Decl.) ¶¶ 2-5.) In order for Featherstone to have full

and equal access in the educational context, sign language interpreters and

captioning are necessary. The schools that he attended always provided these

services to ensure full and equal access. (Id. ¶¶ 5-7, 10-13.)

In 2012, Featherstone applied for admission to PNWU. In February

2013, PNWU offered Featherstone admission into its program. Featherstone

accepted. (Ex. B, ¶¶ 19, 22, 23.) In March 2013, Featherstone requested

captioning for lectures and interpreting for more interactive settings such as labs

and clinics. (Id. at ¶¶ 26, 32-34; Ex. B-1 at 4.) He also registered with the State

of Washington’s Division of Vocational Rehabilitation (“DVR”). DVR

provides funds to universities in Washington towards the cost of auxiliary aids

and services for deaf students like Featherstone. Featherstone provided PNWU

with information about DVR and suggested that PNWU contact the agency for

assistance. (Ex. B ¶¶ 37-38; Ex. B-1 at 15-16; Ex. C (Davis Decl.) ¶¶ 2-4.)

2 All exhibit citations in this brief are to the Fox Declaration.



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(503) 295-3085

Nonetheless, on July 20, 2013, PNWU sent Featherstone a letter stating

that it needed more time to arrange the auxiliary aids and services and was

deferring his enrollment by a year. (Ex. B ¶ 41; Ex. B-2 (July 20, 2013 letter).)

PNWU promised Featherstone that he was still an admitted student. (Ex. B ¶¶

40-43; Ex. B-1 (emails) at 17-19; Ex. B-2.) Having terminated his lease in

reliance on PNWU’s offer of admission, Featherstone and his family moved

into the basement of a family member’s home. Having resigned his job,

Featherstone found that the position had already been filled. (Ex. B ¶¶ 44-45.)

On April 4, 2014, DVR informed PNWU in writing that if PNWU “can’t

pay for the accommodations DVR can pay for them.” (Ex. C-1 (emails) at 2.)

Seven days later, on April 11, 2014, PNWU attempted to withdraw its

admission offer to Featherstone by certified mail. PNWU claimed that deaf

people could not safely practice medicine and would never be able to pass the

boards because they cannot hear. (Ex. B3 (Apr. 11, 2014 letter).)

However, as the attached declarations of Dr. Christopher Moreland and

Dr. Wendy Eastman – two successful deaf doctors – show, there are numerous

successful deaf medical professionals in the United States, working in all

aspects of health care, including medicine. (See generally Ex. D (Moreland

Decl.); Ex. E (Eastman Decl.).) Dr. Moreland and Dr. Eastman are just two of a

growing number of deaf doctors who are members of the Association of

Medical Professionals with Hearing Losses, an organization by and for deaf and



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(503) 295-3085

hard of hearing health care professionals. (Ex. D ¶¶ 11-12 (estimating over 100

deaf doctors and medical students in the country).)

Featherstone also submits the report of Dr. Robert Pollard, professor of

psychology at the University of Rochester, who has worked with dozens of deaf

and hard-of-hearing individuals training to become health care professionals,

including doctors, and has published articles about making medical schools

accessible to deaf individuals. Dr. Pollard opines that PNWU’s alleged safety,

and other, concerns are wholly without merit. (Ex. A (Pollard Report) at 6-10.)

The upcoming academic year begins on or about August 4, 2014. (Ex. B

¶ 51.) Without a preliminary injunction, Featherstone will not be able to begin

classes along with every other student who accepted PNWU’s admission offer.

ARGUMENT

A plaintiff must establish four elements to obtain a preliminary

injunction: “that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest.” M.R. v.

Dreyfus, 697 F.3d 706, 725 (9th Cir. 2011) (internal quotation omitted). All

four factors militate strongly in favor of granting a preliminary injunction to

require PNWU to let Featherstone begin his studies on August 4, 2014 with

necessary auxiliary aids and services.



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(503) 295-3085

A. Featherstone is Likely to Succeed on the Merits.

Title III of the Americans with Disabilities Act (“ADA”) was enacted to

facilitate disabled individuals’ access to places of public accommodation

including private universities such as PNWU. 42 U.S.C. § 12181(7)(J) (listing

a “postgraduate private school” as a covered entity). Pursuant to the statute and

regulations, which are entitled to substantial deference, see Botosan v. Paul

McNally Realty, 216 F.3d 827, 834 (9th Cir. 2000), discrimination occurs when

a place of public accommodation denies an individual with a disability the

opportunity to “participate in or benefit from [its] goods, services, facilities,

privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(1)(A)(i); 28

C.F.R. § 36.202(a). Covered entities must provide necessary auxiliary aids and

services such as qualified interpreters and captioning to ensure effective

communication with deaf and hard of hearing individuals. 42 U.S.C. §

12182(b)(2)(A)(ii); 28 C.F.R. § 36.303(c). Section 504 of the Rehabilitation

Act, which applies to recipients of federal financial assistance such as PNWU,

contains identical requirements. 29 U.S.C. §794; 34 C.F.R. § 104.44(d); see

also Dreyfus, 663 F.3d at 1115 (ADA and Rehabilitation Act claims discussed

together).

Federal courts consistently recognize the rights of deaf students to full

and equal access to higher education. In a case directly on point, the Eighth

Circuit held that “the ADA and the Rehabilitation Act require [medical schools]

to start by considering how its educational programs are used by non-disabled



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(503) 295-3085

medical school students and then take reasonable steps to provide [a deaf

medical student] with a like experience.” Argenyi v. Creighton Univ., 703 F.3d

441, 451 (8th Cir. 2013) (quotations omitted) (brackets added, other brackets

omitted). See also United States v. Bd. of Trustees of Univ. of Alabama, 908

F.2d 740 (11th Cir. 1990).

PNWU admitted Featherstone into its program on the basis of his strong

academic record, but now refuses to allow Featherstone to enroll simply

because he is deaf. (See Ex. B-3.) As such, PNWU has a blanket ban on deaf

medical students. Courts consistently strike such policies. See, e.g., Lovell v.

Chandler, 303 F.3d 1039, 1044-45 (9th Cir. 2002) (holding that state’s outright

exclusion of people with disabilities from its health insurance programs violated

the ADA). PNWU’s letter reflects precisely the kind of “no deaf people

allowed” policy that the ADA is intended to redress.

Featherstone is also likely to establish that interpreter services and

captioning are necessary for full and equal access. PNWU has conceded as

much. (See Ex. B2.) Further, every school Featherstone has attended since

elementary school has made such a determination. (Ex. B ¶¶ 4, 5, 7, 11-13.)

Featherstone is likely to prevail in his claim that deaf people should not

be excluded from medical school because they are deaf.

B. Featherstone Will Suffer Irreparable Harm Without Preliminary Relief.

Featherstone can also establish the likelihood of irreparable harm if

preliminary injunctive relief is denied. The Ninth Circuit has held that a



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(503) 295-3085

plaintiff establishes irreparable harm when he demonstrates injury that is

“emotional and psychological—and immediate.” Chalk v. Orange County

Superintendent of Schools, 840 F.2d 701, 710 (9th Cir. 1988). In a disability

discrimination case, such emotional injury is irreparable because it is within the

realm of injuries that Congress contemplated in enacting Section 504. Id. at

710.

The Ninth Circuit also views as irreparable injury a person’s

psychological harm in not being able to pursue his chosen profession. In Chalk,

a school district reassigned a teacher after learning that he had AIDS. Focusing

on monetary loss, the district court held that the teacher could not establish

irreparable harm. Chalk, 701 F.2d at 709. The Ninth Circuit reversed, holding

that the teacher’s emotional and psychological injuries constituted irreparable

harm. The court noted that “a delay, even if only a few months, pending trial

represents precious, productive time irretrievably lost to him.” Id. at 710. In

another case directly on point, the Ninth Circuit concluded that a blind bar

exam test-taker denied accommodations “demonstrated irreparable harm in the

form of the loss of opportunity to pursue her chosen profession.” Enyart v.

Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011).

Just as Chalk wanted to teach deaf children and Enyart wanted to become

a lawyer, Featherstone wants to become a doctor. (Ex. B ¶¶ 16, 17, 50.) Each

day that Featherstone has to defer his aspiration and live in limbo is a day that

he suffers the sort of emotional and dignitary harm that the ADA was enacted to



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(503) 295-3085

prevent. If this Court does not grant the preliminary injunction he seeks,

Featherstone must choose between delaying – potentially years, while this

lawsuit is resolved – matriculation at PNWU, or abandoning his goal and the

admission he earned with his hard work and academic record. Featherstone is

threatened with precisely the sort of injury that the Ninth Circuit held to be

irreparable harm in Chalk and Enyart. Accordingly, Featherstone satisfies the

requirement for irreparable harm.

C. Balance of Hardships Weighs in Favor of a Preliminary Injunction.

The harm to PNWU resulting from a grant of Featherstone’s motion

would be minimal compared to the irreparable harm that Featherstone would

suffer in putting his life on hold while this litigation proceeds without

preliminary relief.

The Ninth Circuit has explained that when considering the balance of

hardships, a “theoretical risk is insufficient to overcome plaintiff’s probability

of success on the merits, and it is likewise insufficient to outweigh the injury

which plaintiff is likely to suffer.” Chalk, 701 F.2d at 710. In Chalk, for

example, the Ninth Circuit dismissed the hypothetical risk that a teacher with

AIDS posed to students and granted a preliminary injunction ordering the

school district to reinstate the teacher. Id.

In this case, PNWU’s alleged reasons for not permitting Featherstone to

matriculate – the harm it alleges it will experience from his presence – are

likewise based on outdated stereotypes and fear. Deaf doctors and medical



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(503) 295-3085

students routinely use interpreters in the course of providing medical care,

including in emergency situations, without compromising patient safety or

anyone else’s education. (Ex. D ¶¶ 9, 11-13; Ex. A at 6-10.) For instance, Dr.

Moreland has directed Code Blue situations using interpreters; his experience is

that interpreters result in no time delay and actually enhance patient safety by

acting as a communication conduit. (Ex. D ¶ 9.) Similarly, Dr. Pollard has

worked with many deaf individuals training to become doctors. (Ex. A at 4.)

His expert report explains why and how PNWU’s reasoning is fundamentally

flawed. (Id. at 6-10.)

As for auxiliary aids and services, PNWU has now had over a year to

obtain them. In an email of July 12, 2013, PNWU confirmed that

Featherstone’s “admitted” status would be retained despite his deferral and that

PNWU would spend the extra time “working on options related to . . .

[assistive] technology, and further exploring the availability of interpreters.”

(See Ex. B-1 at 18.)

For these reasons, the hardships that PNWU imagines resulting from

preliminary relief are outweighed by the significant harm that Featherstone

would experience in having to postpone indefinitely becoming a doctor.

D. A Preliminary Injunction Promotes the Public Interest.

PNWU’s refusal to admit Featherstone into its program is precisely the

sort of outright exclusion that Congress sought to eradicate when it enacted the

ADA “to remedy widespread discrimination against disabled individuals.”



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(503) 295-3085

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). A preliminary injunction

will fulfill Congress’ goal in enacting the ADA – to ensure full and equal access

for individuals with disabilities. See, e.g., Enyart, 630 F.3d at 1167 (holding

that a preliminary injunction to enforce the ADA serves the public interest).

A preliminary injunction would further serve the public interest because,

as a recent task force recommended, more deaf health care professionals will

increase deaf patients’ access to health care. See Building Pathways to Health

Care Careers for the Deaf and Hard-of-Hearing Community, March 2012,

available at http://www.rit.edu/ntid/hccd/system/files/FINAL_REPORT

_Building_Pathways_ March_2012.pdf (last visited June 18, 2014). A

preliminary injunction would further the public interest in creating deaf doctors.

CONCLUSION

For the reasons stated above, this Court should enter an order for a

preliminary injunction that requires Defendant to permit Featherstone to begin

his medical education as scheduled on August 4, 2014, and to provide

interpreters and captioning to ensure effective communication.

DATED this 20th day of June, 2014.

MARKOWITZ, HERBOLD, GLADE & MEHLHAF, P.C.

By: s/ Peter H. GladePeter H. Glade, WSBA #15681 (503) 295-3085 Of Attorneys for Plaintiff

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Deaf student sues medical school.

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