fundamental modification or substantial modification of the program.
Plaintiff argues that the court must determine whether a reasonable accommodation could allow a handicapped person to receive the program's essential benefits. Easley v. Snider, 36 F.3d 297 (3rd Cir. 1994). Plaintiff asserts that participating in the residency program via telephone would not deprive the program of its essential benefit, namely education (Item 13, p. 3). He contends that the itinerary and pre-residency assignment fails to support defendants' claims regarding the pedagogical necessity of physical presence at the residency (Id., p. 4). Plaintiff cautions that in determining whether an accommodation would allow the applicant to receive the benefit, the court should not rely solely on the stated benefits "because programs may attempt to define the benefit in a way that 'effectively denies otherwise handicapped individuals the meaningful access to which they are entitled.'" Easley, 36 F.3d at 302 (quoting Alexander, 469 U.S. at 301). He argues that he would be able to read the assigned materials prior to the residency and participate fully by telephone and this involvement would satisfy his goal of acquiring knowledge and improving himself.
Defendants submit that excluding plaintiff's personal attendance from the residency requirement would result in lowering the academic standards and imposing a substantial modification of the program which would devalue the school's end product which would in turn substantially alter the academic program (Item 8, p. 7). As discussed more thoroughly above, administration officials of Empire State College argue that the residency program is designed to provide the students with intensive academic interaction with each other and with the faculty through which they are to develop their critical thinking and communication skills. Defendants contend that allowing an individual to participate over the phone would not only interfere with that individual's educational experience, it would also interfere with the educational experience of the students in the classroom.
The court finds defendants' arguments regarding the pedagogical purposes of the residency program to be persuasive. The record demonstrates that despite their continued insistence that plaintiff attend the residency, the administrators at Empire State College have made efforts to accommodate plaintiff's disability. It is the severe nature of plaintiff's handicap rather than the defendants' failure to offer reasonable accommodation that is limiting plaintiff's ability to achieve his educational objectives. The affidavits submitted by defendants demonstrate that administrators at Empire State College designed the residency program to achieve definite pedagogical objectives. The court does not wish to substitute its judgment for that of experienced education administrators and professionals in assessing whether the program does in fact meet its pedagogical objectives.
Based on the record, the court finds that allowing plaintiff to participate in the residency program would be a substantial modification of the educational program. As such, under the circumstances plaintiff's requested accommodation is unreasonable. Since he has not demonstrated a substantial likelihood of success on the merits, the court rejects plaintiff's motion for a preliminary injunction.
Finding that no good purpose would be served by delaying final judgment since the program begins on Saturday, February 22, 1997, the court will consolidate the application for a preliminary injunction with the application for a permanent injunction under Rule 65(a)(2) of the Federal Rules of Civil Procedure.
For the foregoing reasons, the court denies plaintiff's motion for a preliminary injunction under Fed.R.Civ.P. 65(a). The Clerk is directed to enter judgment accordingly.
JOHN T. CURTIN
United States District Judge
Dated: February 21, 1997