MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE
Plaintiff Emily McCulley suffers from spinal muscular atrophy, which has rendered her unable to walk and left her with little upper body strength. McCulley applied for admission to the Kansas University School of Medicine, requesting as an accommodation the appointment of a staff person to serve as her assistant or surrogate during clinical rotations. After the School declined to offer this accommodation, McCulley brought the present action against the School and its Dean, Dr. Steven Stites, M.D., alleging they violated her rights under the Americans with Disability Act (ADA) and the Rehabilitation Act.
The defendants have moved for summary judgment, arguing that McCulley is not “otherwise qualified” to participate in the its program, because she cannot meet its Motor Technical Standards required for applicants. These Standards were previously adopted as essential to the School’s accreditation. The court agrees, and grants defendants’ motion.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
Emily McCulley was born in June 1988. In 1991, at the age of three, McCulley was diagnosed with spinal muscular atrophy, Type III. This is an inherited condition which affects the motor neurons that send signals to innervate the muscles. Because the muscles are not properly innervated, the muscles atrophy resulting in muscle wasting and weakness in the arms and legs.
Between 1991 and 1998, Emily McCulley was able to walk, stand, and jump; although she had a tendency to fall down and took a little bit longer to get up, she functioned pretty well even though she became fatigued more easily than her classmates.
Following an accident in 1998 that resulted in a leg break, Emily McCulley used a walker on and off for a couple of years, and also began using a wheelchair. In 2002, Emily McCulley began using a wheelchair exclusively because she no longer able to stand or walk.
McCulley uses a motorized wheelchair for mobility. In 2011, she acquired a standing wheelchair, which she can use in either a sitting or standing position and can be raised or lowered.
When in a standing position in her standing wheelchair, McCulley can raise herself to a position that would be eye level with someone who is approximately six feet tall. McCulley uses an accessible van with ramp and hand controls for driving. McCulley has reduced strength and can only lift between 10 to 20 pounds.
When she was eighteen, McCulley applied for and was granted monthly Social Security disability benefits. She also receives vocational rehabilitation benefits because of her disability.
McCulley entered the University of Kansas, Lawrence campus, as a freshman in Fall 2006. While an undergraduate, McCulley requested, and was granted, disability accommodations, including a handicap accessible room in student housing, parking accommodations, and accessible seating accommodations in the laboratories and classrooms where she worked or studied.
McCulley graduated from KU in May 2010 with a Bachelor of General Studies degree in psychology and a Bachelor of Science degree in biology with an emphasis in neurobiology, which studies the brain and nervous system in humans and other animals.
In her first year at KU, McCulley decided she wanted to go to medical school. She applied to the Oklahoma State College of Osteopathic Medicine and the Kirksville College of Osteopathic Medicine and failed to receive an interview for either program. She also applied to the Kansas City University of Medicine and Biosciences (KCUMB), an osteopathic College of Medicine, in 2009, for admission to its class of 2010, and in 2010, for admission to its class of 2011. She did not receive an interview with KCUMB following the submission of her class of 2010 application for admission to its College of Medicine, because KCUMB concluded that her application was marginal in terms of meeting its admission requirements (e.g., MCAT score, science GPA, overall GPA).
Following submission of her class of 2011 application for admission to the KCUMB college of medicine, McCulley received an interview which was designed to evaluate her capacity to meet KCUMB’s technical standards for its College of Medicine program. Those standards provide:
Candidates and students should have sufficient motor function to execute movements reasonably required to provide general care and emergency treatment to patients. Examples of emergency treatment reasonably required of physicians are cardiopulmonary resuscitation, administration of intravenous medication, the application of pressure to stop bleeding, the opening of obstructed airways, the suturing of simple wounds and the performance of simple obstetrical maneuvers. Such actions require coordination of both gross and fine muscular movements, equilibrium and functional use of the senses of touch and vision.
Strength and Mobility
Osteopathic treatment often requires upright posture with sufficient lower extremity and body strength; therefore, individuals with significant limitations in these areas would be unlikely to succeed. Mobility to attend to emergency codes and to perform such maneuvers as CPR also are required.
At the meeting, McCulley was shown a number of osteopathic manipulation maneuvers and asked to demonstrate her motor and strength and mobility capacities to successfully perform the maneuvers. She was also asked to demonstrate her ability to do chest compressions on a Manikin, a life-size human dummy, while the Manikin was on the ground and while the Manikin was on an examination table; and in both instances, McCulley was unable to compress the Manikin’s chest the degree necessary to successfully perform CPR chest compressions. McCulley was asked to perform the Heimlich maneuver on a half-torso Manikin and then on one of the faculty members, but she was unable to demonstrate that she could generate enough force to dislodge an airway obstruction.
The KCUMB admissions subcommittee concluded that McCulley could not meet the school’s technical standards, and that she could not be accommodated without substantially altering its educational program. KCUMB denied McCulley admission to its College of Medicine class of 2011 because it determined that she could not meet the program’s Minimum Technical Standards for Admission and Matriculation.
Following receipt of KCUMB’s denial of admission to the College of Medicine class of 2011, McCulley filed a complaint with the United States Department of Health and Human Services Office of Civil Rights alleging that KCUMB had discriminated against her based on her disability. The U.S. Department of Health and Human Services Office of Civil Rights issued its decision finding no probable cause to McCulley’s complaint of disability discrimination filed against KCUMB.
The University of Kansas is a state-supported institution of higher education. It also receives federal funding.
The University of Kansas’ Kansas University Medical Center is located in Kansas City, Kansas, and educates healthcare professionals in three schools: The School of Medicine (with campuses in Kansas City, Wichita and Salina), The School of Nursing, and The School of Health Professions. The School of Medicine, established in 1905, is the only school of medicine in Kansas and its mission is to train physicians for Kansas.
Post-graduate professional medical education at the KU School of Medicine involves a selective, qualified admissions process that ensures those admitted possess a demonstrated record of educational success, objectively tested aptitude (Medical College Admissions Test), and the requisite skills and abilities to be successful in the post-graduate professional medical educational program. Post-graduate professional medical education is the gateway to professional licensure and practice as a physician.
The Kansas Board of Healing Arts requires graduation from “an accredited healing arts school or college” as a pre-requisite for qualification to sit for examination to practice as a physician. See K.S.A. 65-2873(2). To be an accredited school of medicine, the school or college must require “study of medicine and surgery in all of its branches . . . to have a standard of education substantially equivalent to the university of Kansas school of medicine.” K.S.A. 65-2874.
The Board of Healing Arts also provides that it establishes the criteria for minimum standards for accreditation of medical schools and that those standards will include: 1) Admission requirements; 2) basic science course work; 3) clinical course work; 4) qualification of faculty; 5) ratio of faculty to students; 6) library; 7) clinical facilities; 8) laboratories; 9) equipment; 10) specimens; 11) financial qualifications; and 12) accreditation by independent agency. See K.S.A. 65-2874(b).
Professional medical education trains individuals to be physicians, which involves clinical, hands-on patient care by the medical student.
Dr. Stites was Interim Dean of the School of Medicine from April 10, 2012 through February 1, 2013. Stites has been a physician faculty member in the KUMC Department of Internal Medicine since July 1999, and is a pulmonary and critical care specialist.
The KU School of Medicine has established Technical Standards and Requirements for admission and matriculation.
The KU School of Medicine curriculum is designed to prepare students to practice as physicians, and it is designed to meet the requirements for accreditation of its educational program by the Liaison Committee on Medical Education (LCME) and to prepare its students to pass the United States Medical Licensure Examination (USMLE) required for licensure as a physician in the United States.
The LCME, which is sponsored by the Association of American Medical Colleges (AAMC) and the American Medical Association, is the nationally recognized authority for medical education programs leading to the M.D. in the United States and Canada. The U.S. Department of Education recognizes the LCME for accreditation of programs of medical education leading to the M.D. degree in the United States. Most state boards of licensure require that U.S. medical schools be accredited by the LCME, as a condition for licensure of their graduates. Eligibility of U.S. students to take the USMLE requires LCME accreditation of their school. Graduates of LCME-accredited schools are eligible for residency programs accredited by the Accreditation Council for Graduate Medical Education (ACGME).
The USMLE is a three-step examination for medical licensure in the United States. It assesses a physician's ability to apply knowledge, concepts, and principles, and to demonstrate fundamental patient-centered skills, that are important in health and disease and that constitute the basis of safe and effective patient care.
The KU School of Medicine requires passage of Steps 1 and 2 of the USMLE before graduation. Step 2 of the USMLE includes two separate test components, the Clinical Knowledge test and the Clinical Skills test, which are each one-day exams.
The Step 2 Clinical Knowledge test is a computer-based examination of the clinical sciences and includes questions related to gynecology and obstetrics, internal medicine, pediatrics, preventive medicine and public health, psychiatry, and surgery. The Step 2 Clinical Skills test uses standardized patients to test medical students and graduates on their ability to gather information ...