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February 21, 1997

STEVEN MACZACZYJ, Plaintiff, -vs- STATE OF NEW YORK and ANNE BERTHOLF, Individually and as the Center Director-Associate Dean of Empire State College of the State University of New York, Defendants.

The opinion of the court was delivered by: CURTIN

 Plaintiff brings this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., and the New York Human Rights Law, N.Y.Exec. L. § 290, et seq., claiming that defendant denied plaintiff admission into the Masters of Arts in Liberal Studies program ("masters program") at the Empire State College of the State University of New York ("Empire State College") on the basis of his disability and that defendants have willfully and unlawfully denied reasonable accommodation. Plaintiff seeks compensatory damages, punitive damages, attorney's fees, and litigation expenses (Item 1).

 On February 10, 1997, plaintiff moved for an order granting him leave to amend his complaint and for an order granting him a preliminary injunction (Item 5). Specifically, plaintiff, a resident of Jamestown, New York, alleges that although he has been accepted into the masters program at Empire State College for the February term, school administrators have demanded that he attend a residency program on February 22, 1997, in Buffalo without providing him with a feasible reasonable accommodation. *fn1" Plaintiff contends that due to his mental illness he is unable to personally attend this program. He asserts that he would be able to participate in the program over the telephone and has requested that the college provide such accommodation. Plaintiff contends that if his request for a reasonable accommodation is not granted, he will be denied admission into the February term of the masters program which begins on Saturday, February 22, 1997, and will thereby suffer economic loss as well as immediate and irreparable emotional injury. Thus, plaintiff seeks to amend his complaint to add a cause of action based on the denial of his request for a reasonable accommodation and a preliminary injunction preventing defendants from rejecting the reasonable accommodation requested by plaintiff to appear at the residency program by telephone and requiring defendants to give plaintiff credit for his appearance by telephone.

 In chambers, the parties agreed that they would first handle plaintiff's request for a preliminary injunction and return to the question of whether plaintiff should be allowed to amend his complaint following the court's decision. Thus, the court does not address the merits of plaintiff's request to amend his complaint in this order.


 Plaintiff alleges that has suffered from severe panic attacks since September 13, 1989. He has been treated at both the W.C.A. Hospital and the Chautauqua County Mental Health Center, both in Jamestown, New York, for panic disorder. At one time in 1993 plaintiff was diagnosed as suffering from anxiety disorder, social phobia, and panic attacks (Item 6, Exhibit C). Marshall Greenstein, a mental health therapist at the Chautauqua County Mental Health Clinic who has treated plaintiff's disability since 1993, explains that plaintiff has a great deal of difficulty dealing with public places and that he suffers from severe panic attacks and emotional trauma whenever he is forced to interact with the public in general (Item 7, P 3). Because he is a former drug addict and alcoholic, plaintiff resists taking medications whenever possible. However, he does take medication in the form of Xanax p.r.n. when he faces unavoidable anxiety-provoking procedures, such as dental work (Id., P 2). When plaintiff experiences a panic attack, it is impossible for him to think about anything else, he becomes completely agitated, his heartbeat races, he sweats profusely, and he feels as though the walls are caving in on him (Id., P 5). Because plaintiff is 5'7" and weighs approximately 245 pounds, the panic attacks have potentially life-threatening ramifications as the increase in his heart rate dramatically increases the possibility that plaintiff will suffer a heart attack (Id., P 4).

 Since the onset of his illness, plaintiff has not traveled to the City of Buffalo. He avoids crowds and public places at all costs (Item 6, P 17). He is virtually housebound and relies on others for most of his daily needs. He communicates with individuals by telephone and has access to the Internet through a home computer.

 Despite his disability, plaintiff obtained a Bachelor of Arts Degree in Anthropology through Empire State College's distance learning program. Plaintiff was never required to attend any programs or classes at an Empire State College campus in pursuit of his undergraduate degree. Plaintiff completed the requirements for his undergraduate degree on October 10, 1996, and was awarded his degree in December 1996 (Item 9, Exhibit A).

 In July 1996, plaintiff applied for admission into the Masters of Arts in Liberal Studies program at Empire State College. His application was forwarded to the office of defendant Dr. Anne Bertholf, who in turn forwarded the application to the faculty review committee. On September 4, 1996, the faculty review committee informed Dr. Bertholf that they had conditionally approved plaintiff's application; the condition being that he complete his undergraduate studies prior to the commencement of the graduate program's semester course of study. On September 4, 1996, plaintiff spoke with Terry MacWhinnie, Dr. Bertholf's secretary, who advised him of his conditional acceptance and the nature of the condition. In a subsequent telephone conversation with Dr. Bertholf, plaintiff learned that the admissions office would accept verbal confirmation from plaintiff's local mentor that he had completed his undergraduate studies. Because plaintiff did not complete his undergraduate studies until October 10, 1996, he was not eligible to participate in the Fall 1996 semester of the masters program. On January 14, 1997, the college advised plaintiff that having completed his undergraduate course of study, he was eligible to participate in the Spring 1997 semester of the masters program.

 At some time in September 1996, plaintiff advised Dr. Bertholf that he would not be able to attend the required residency program due to his disability. This was the first time plaintiff indicated that his disability would prevent him from personally attending any required programs. Plaintiff asked Dr. Bertholf whether he could attend the program via satellite uplink. Dr. Bertholf informed plaintiff that she would have to consult with other administrative and academic representatives of the college in order to assess whether plaintiff's request was a reasonable accommodation to the program. On September 26, 1996, Dr. Bertholf wrote to plaintiff asking him to submit his request for accommodation in writing and to provide her with proof of his disability (Item 6, P 12 and Exhibit E). Plaintiff complied with these requests by letter dated October 1, 1996. Before defendants were able to contact plaintiff to discuss possible accommodation with respect to the residency requirement, plaintiff filed this lawsuit.

 On or about January 21, 1997, school administrators offered to accommodate plaintiff's disability by having him attend the program under certain modified circumstances. Plaintiff would (1) be able to be accompanied by a friend or advisor of his choice, (2) have access to a vacant room to which he could retreat whenever the need were to arise, (3) be excused from those portions of the residency which were deemed predominantly of a social nature (i.e., lunch period and coffee break periods), and (4) have his choice of location within the meeting area where the residency is to be conducted (Item 6, P 15, Item 8, p. 6). On or about January 22, 1997, plaintiff rejected this accommodation based on his belief that it is neither reasonable nor feasible given his belief that it is absolutely impossible for him to attend the program. In support of his contention that this accommodation is not feasible, plaintiff's mental health therapist, Mr. Greenstein, asserts that the quantities of medication required to make the residency tolerable for plaintiff would be so disorienting as to render attendance meaningless (Item 15, P 5). Plaintiff then requested that he be permitted to attend the program by telephone and that the call be initiated by the college (Item 6, P 16).

 Administration officials at Empire State College explain that programs delivered through telecommunications as distance learning programs require a deliberate design and pedagogy distinctly different from that of a program designed for face to face interaction between teacher and students (Item 9, P 4). In addition, a college that wishes to convert a program with essential personal attendance requirements to a telecommunications distance learning format must seek approval from the State Education Department (Id., P 3). The masters program at Empire State College is neither designed nor registered for complete distance delivery (Id., P 5). Mandatory residency attendance is a core requirement of the masters program as the residencies are a required component of three core courses, totaling 12 credits (Item 10, P 4). During each residency, the students engage in intensive academic seminars, group discussions, presentations, intensive analyses of their personal perspectives on assigned readings, and critiques of each other's contributions. These activities give students an opportunity to demonstrate, and for faculty to assess, student abilities to employ critical thinking, to analyze and comprehend the course content, and to effectively critique their classmates' work (Id., P 8).

 Administration officials contend that residency participation via telephone conferencing is not academically equivalent to participation through physical presence (Id., P 10). Although telephone conferencing is effective for the exchange of information, the objectives of the residencies are not limited to the exchange of information. The main objectives of the residencies are to develop the critical and analytical thinking skills of students at the graduate level and to prepare students to display such skills in a variety of modes of communication. Empire State College administration assert that telephone conferencing offers an attenuated form of interpersonal interaction, devoid of nonverbal cues that amplify the verbal messages of the speakers and that supply feedback from others about the impact of the speaker's statements (Id., P 11). If plaintiff were allowed to participate by telephone, the faculty would not be able to assess his academic performance in an accurate manner, as they would not be able to differentiate shortcomings in his ability to analyze and contribute in class discussion and debate from shortcomings in the technology which transmits only a small fraction of oral communication (Id.). In addition, administration officials also contend that having one student participate via telephone would impose a burden on the other students whose ability to debate and critique plaintiff's contributions would be limited due to the attenuated nature of telephone communication (Id., P 12). Students working with plaintiff in small groups would be limited in their ability to develop rapport and an effective working relationship.

 It appears as if Empire State college has never allowed any student to waive any residency requirement for any of its graduate degree ...

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