Deaf Student Sues Medical School.

MOTION FOR PRELIMINARY INJUNCTIVE RELIEF - Page 1
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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
PeterGlade@MHGM.com
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 Court
25 S. 3rd Street
Yakima, WA 98901

INTRODUCTION
Plaintiff, Zachary Featherstone, a deaf individual, earned admission to
defendant Pacific Northwest Universitys (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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MARKOWITZ, HERBOLD,
(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 Washingtons 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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MARKOWITZ, HERBOLD,
(503) 295-3085
Nonetheless, on J uly 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 (J uly 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 PNWUs offer of admission, Featherstone and his family moved
into the basement of a family members 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 cant
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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MARKOWITZ, HERBOLD,
(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 PNWUs 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 PNWUs 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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MARKOWITZ, HERBOLD,
(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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MARKOWITZ, HERBOLD,
(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 states outright
exclusion of people with disabilities from its health insurance programs violated
the ADA). PNWUs 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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MARKOWITZ, HERBOLD,
(503) 295-3085
plaintiff establishes irreparable harm when he demonstrates injury that is
emotional and psychologicaland 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 persons
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 teachers 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.
Natl Conference of Bar Examrs, Inc., 630 F.3d 1153, 1165 (9th Cir. 2011).
J ust 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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MARKOWITZ, HERBOLD,
(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 Featherstones 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 plaintiffs 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, PNWUs 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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students routinely use interpreters in the course of providing medical care,
including in emergency situations, without compromising patient safety or
anyone elses 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 PNWUs 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 J uly 12, 2013, PNWU confirmed that
Featherstones 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.
PNWUs 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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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 J une 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 J une, 2014.
MARKOWITZ, HERBOLD, GLADE
& MEHLHAF, P.C.

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

391424


Deaf Student Sues Medical School.

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