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SHERRIE LYNN ZUKLE,
Plaintiff-Appellant,                                  No. 97-16708

v.                                                    D.C. No.
CV-96-00127-DFL
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,                                           OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding

Argued and Submitted
November 3, 1998--San Francisco, California

Filed February 23, 1999

Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain and
Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge O'Scannlain

_________________________________________________________________

COUNSEL

Dan Siegel, Hunter, Pyle, Siegel & Yee, Sacramento, Califor-
nia, for the plaintiff-appellant.

Charity Kenyon, Diepenbrock, Wulff, Plant & Hannegan,
Sacramento, California, for the defendant-appellee.

_________________________________________________________________

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether a medical school violated the
Americans with Disabilities Act or the Rehabilitation Act
when it dismissed a learning disabled student for failure to
meet the school's academic standards.

I

Sherrie Lynn Zukle entered the University of California,
Davis School of Medicine ("Medical School") in the fall of
1991 for a four year course of study. The first two years com-
prise the "basic science" or "pre-clinical " curriculum, consist-
ing of courses in the function, design and processes of the
human body. The final two years comprise the "clinical
curriculum." In the third year, students take six consecutive
eight-week clinical clerkships. During the fourth year, stu-
dents complete clerkships of varying lengths in more
advanced areas. Most clerkships involve treating patients in
hospitals or clinics, and oral and written exams.

From the beginning, Zukle experienced academic diffi-
culty. During her first quarter, she received "Y " grades in
Anatomy and Biochemistry.1 Upon reexamination, her Bio-
chemistry grade was converted to a "D." She did not convert
her Anatomy grade at that time. In her second quarter, she
received a "Y" grade in Human Physiology, which she con-
verted to a "D" upon reexamination.

In April 1992, the Medical School referred Zukle to the
Student Evaluation Committee ("SEC").2 Although subject to
dismissal pursuant to the Medical School's bylaws, 3 Zukle
was allowed to remain in school. The SEC (1) placed Zukle
on academic probation,4 (2) required her to retake Anatomy
and Biochemistry, (3) required her to be tested for a learning
disability, and (4) placed her on a "split curriculum," meaning
that she was given three years to complete the pre-clinical
program, instead of the usual two years. Zukle continued to
experience academic difficulty. For the spring quarter of 1992
(while on academic probation) she received a "Y " grade in
Neurobiology. In the fall, she received a "Y" grade in Medical
Microbiology and in the winter she received a "Y " in Princi-
ples of Pharmacology. In total, Zukle received eight "Y"
grades during the pre-clinical portion of her studies. Five were
converted to "C" after reexamination, two to "D" and one to
"F."

In November 1992, Zukle was tested for a learning disabil-
ity. The results received in January 1993, revealed that Zukle
suffered from a reading disability which "affects visual pro-
cessing as it relates to reading comprehension and rate when
under timed constraints." In short, it takes Zukle longer to
read and to absorb information than the average person.5
Zukle asked Christine O'Dell, Coordinator of the University's
Learning Disability Resource Center, to inform the Medical
School of her test results in mid-July 1993. O'Dell informed
Gail Currie of the Office of Student Affairs in a letter dated
July 21, 1993. O'Dell recommended that the Medical School
make various accommodations for Zukle's disability and rec-
ommended various techniques for Zukle to try to increase her
reading comprehension. The Medical School offered all of
these accommodations to Zukle.

After completing the pre-clinical portion of Medical
School, Zukle took the United States Medical Licensing
Exam, Part I ("USMLE") in June 1994. Shortly thereafter, she
began her first clinical clerkship, OB-GYN. During this clerk-
ship, Zukle learned that she had failed the USLME. 6 The
Medical School allowed Zukle to interrupt her OB-GYN
clerkship to take a six-week review course to prepare to retake
the USMLE, for which the Medical School paid.

Before leaving school to take the USMLE review course
offered in southern California, Zukle asked Donal A. Walsh,
the Associate Dean of Curricular Affairs, if she could rear-
range her clerkship schedule. At this point, Zukle had com-
pleted the first half of her OB-GYN clerkship. She asked
Dean Walsh if, instead of completing the second half of her
OB-GYN clerkship upon return from retaking the USMLE,
she could start the first half of a Family Practice Clerkship,
and then repeat the OB-GYN clerkship in its entirety at a later
date. Zukle testified that she made this request because she
was concerned about how far behind she would be when she
returned from the USMLE review course. She further asserted
that she thought that if she started the Family Practice clerk-
ship (which apparently requires less reading than the OB-
GYN clerkship), she would be able to read for her upcoming
Medicine clerkship at night. Zukle testified that Dean Walsh,
and several other faculty members, including the Instructor of
Record for Family Practice and the Instructor of Record for
OB-GYN, initially approved her request. Later, however,
Dean Walsh denied Zukle's request and informed her that she
had to complete the OB-GYN clerkship before beginning
another clerkship.

In September 1994, Zukle took and passed the USMLE on
her second attempt.7 She returned to the Medical School and
finished her OB-GYN clerkship. Without requesting any
accommodations, she began her Medicine clerkship. During
this clerkship, she learned that she had earned a "Y" grade in
her OB-GYN clerkship. Because of this grade, Zukle was
automatically placed back on academic probation. 8

Two weeks before the Medicine written exam, Zukle con-
tacted her advisor, Dr. Joseph Silva, and expressed concern
that she had not completed the required reading. Dr. Silva
offered to speak with Dr. Ruth Lawrence, the Medicine
Instructor of Record, on Zukle's behalf. According to Zukle,
she then spoke with Dr. Lawrence in person and requested
time off from the clerkship to prepare for the exam. Dr. Law-
rence denied Zukle's request. Zukle passed the written exam,
but failed the Medicine clerkship because of unsatisfactory
clinical performance. On Zukle's grade sheet, Dr. Lawrence
rated Zukle as unsatisfactory in clinical problem solving
skills; data acquisition, organization and recording; and
skill/ability at oral presentations. Dr. Lawrence also reported
negative comments from the people who worked with Zukle
during the clerkship. Because Zukle had earned a failing
grade while on academic probation, she was again subject to
dismissal pursuant to the Medical School's bylaws.
On January 13, 1995, Zukle appeared before the SEC. The
SEC recommended that Zukle (1) drop her current clerkship,
Pediatrics; (2) start reviewing for the OB-GYN exam, and
retake it; (3) repeat the Medicine clerkship in its entirety; (4)
obtain the approval of the SEC before enrolling in any more
clerkships; and (5) remain on academic probation for the rest
of her medical school career.

On January 17, 1995, the Promotions Board met to con-
sider Zukle's case. The Promotions Board voted to dismiss
Zukle from the Medical School for "failure to meet the aca-
demic standards of the School of Medicine." According to Dr.
Lewis, who was a member of the Promotions Board and was
present when it reached its decision, "the Promotions Board
considered Plaintiff's academic performance throughout her
tenure at the medical school and determined that it demon-
strated an incapacity to develop or use the skills and knowl-
edge required to competently practice medicine."

In June 1995, Zukle appealed her dismissal to an ad hoc
Board on Student Dismissal composed of faculty and students
("the Board").9 Zukle appeared before the Board on Novem-
ber 12, 1995, and requested that her dismissal be reconsidered
and that she be given extra time to prepare prior to some of
her clerkships to accommodate her disability. The Board also
heard testimony from Dr. Silva, who spoke favorably on her
behalf, Dr. Ernest Lewis, Associate Dean of Student Affairs
and Dr. George Jordan, the Chair of the Promotions Board at
the time of Zukle's dismissal. When asked about Zukle's
request to remain in Medical School on a decelerated sched-
ule, Dean Lewis testified:
       There is a certain point when everyone has to be able
       to respond in the same time frame. A physician does
       not have extra time when in the ER, for example.
       Speed of appropriate reaction to crisis is essential.

The Board on Student Dismissal voted unanimously to uphold
the Promotions Board's decision of dismissal.

On January 22, 1996, Zukle filed a complaint in federal dis-
trict court for damages and injunctive relief against the
Regents of the University of California ("Regents"). The
complaint alleged discrimination based on disability, sex and
race, and sexual harassment. On June 6, 1997, the Regents
filed a motion for summary judgment. The district court
entered its Memorandum of Opinion and Order on August 7,
1997, granting summary judgment to The Regents on all of
Zukle's claims. The court found that Zukle's "race, sex, and
sexual harassment claims are unsupported by the record and
do not merit discussion." On Zukle's Americans with Disabil-
ities Act ("ADA") and Rehabilitation Act claims, the district
court found that "[b]ecause the evidence before the court
shows that Zukle could not meet the minimum standards of
the UCD School of Medicine with reasonable accommoda-
tion, she is not an otherwise qualified individual with a dis-
ability under the Rehabilitation Act or the ADA."

Zukle timely appeals from the district court's grant of sum-
mary judgment on her ADA and Rehabilitation Act claims.10
II

Zukle claims that she was dismissed from the Medical
School in violation of Title II of the ADA and section 504 of
the Rehabilitation Act. Title II of the ADA provides, in rele-
vant part:

       no qualified individual with a disability shall, by
       reason of such disability, be excluded from participa-
       tion in or be denied the benefits of the services, pro-
       grams, or activities of a public entity, or be subjected
       to discrimination by any such entity.

42 U.S.C. S 12132. Title II prohibits discrimination by state
and local agencies, which includes publicly funded institu-
tions of higher education. See id. at S  12131(1)(B).

Title II of the ADA was expressly modeled after Section
504 of the Rehabilitation Act, which provides:

       No otherwise qualified individual with a disability
       . . . shall, solely by reason of her or his disability, be
       excluded from the participation in, be denied the
       benefits of, or be subjected to discrimination under
       any program or activity receiving Federal financial
       assistance . . . .

29 U.S.C. S 794.

[1] To make out a prima facie case under either the ADA
or Rehabilitation Act Zukle must show that (1) she is disabled
under the Act; (2) she is "otherwise qualified " to remain a stu-
dent at the Medical School, i.e., she can meet the essential eli-
gibility requirements of the school, with or without reasonable
accommodation; (3) she was dismissed solely because of her
disability; and (4) the Medical School receives federal finan-
cial assistance (for the Rehabilitation Act claim), or is a pub-
lic entity (for the ADA claim). See Dempsey v. Ladd, 840
F.2d 638, 640 (9th Cir. 1988); cf. Willis v. Pacific Maritime
Assoc., 162 F.3d 561, 565 (9th Cir. 1998) (stating prima facie
elements for ADA employment case).11

[2] The Regents do not dispute that Zukle is disabled and
that the Medical School receives federal financial assistance
and is a public entity. The Regents argue, however, that Zukle
was not "otherwise qualified" to remain at the Medical
School. Zukle responds that she was "otherwise qualified"
with the aid of reasonable accommodations and that the Medi-
cal School failed reasonably to accommodate her. 12
A

[3] The ADA defines a "qualified individual with a
disability" as one who "meets the essential eligibility require-
ments . . . for participation in [a given] program[ ] provided
by a public entity" "with or without reasonable modifications
to rules, policies, or practices . . . ." 42 U.S.C. S 12131(2)
(emphasis added); accord Southeastern Community College v.
Davis, 
442 U.S. 397, 406
  (1979) (holding that under the
Rehabilitation Act, an otherwise qualified individual is "one
who is able to meet all of a program's requirements in spite
of his handicap"). In the school context, the implementing
regulations of the Rehabilitation Act define an otherwise qual-
ified individual as an individual who, although disabled,
"meets the academic and technical standards requisite to
admission or participation in the [school's] education program
or activity." 34 C.F.R. S 104.3(k)(3).

[4] However, under Rehabilitation Act regulations, educa-
tional institutions are required to provide a disabled student
with reasonable accommodations to ensure that the institu-
tion's requirements do not discriminate on the basis of the stu-
dent's disability. See 34 C.F.R. S 104.44(a). Similarly, the
ADA's implementing regulations require a public entity to
"make reasonable modifications in policies, practices, or pro-
cedures when the modifications are necessary to avoid dis-
crimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would funda-
mentally alter the nature of the services, program, or activity."
28 C.F.R. S 35.130(b)(7). The Supreme Court has made clear
that an educational institution is not required to make funda-
mental or substantial modifications to its program or stan-
dards; it need only make reasonable ones. See Alexander v.
Choate, 
469 U.S. 287, 300
  (1985).

B

In order to evaluate Zukle's claim, we must clarify the bur-
dens of production and persuasion in cases of this type. The
district court correctly noted that we have not previously
addressed the allocation of the burdens of production and per-
suasion for the "otherwise qualified" --"reasonable
accommodation" prong for a prima facie case in the school
context. We have, however, recently articulated the allocation
of these burdens in the employment context. See Barnett v.
U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). In Barnett, we
made clear that the plaintiff bears the ultimate burden of per-
suasion with regard to whether he is qualified, i.e., in the
school context, that he is able to meet the educational institu-
tion's essential eligibility requirements with or without the aid
of reasonable accommodations. See id. at 749 (noting that, in
the employment context, the plaintiff bears the burden of
proving that he can perform the essential functions of the job
with or without reasonable accommodation).

We further held that when the plaintiff alleges a failure to
accommodate, part of the plaintiff's initial burden includes
"showing the existence of a reasonable accommodation." Id.
at 749. In the employment context, "[o]nce the plaintiff has
established the existence of a reasonable accommodation that
would enable him or her to perform the essential functions of
an available job, the burden switches to the defendant to show
that this accommodation would constitute an undue hardship."
Id.

[5] Adopting a similar burden shifting framework in the
school context, we hold that the plaintiff-student bears the ini-
tial burden of producing evidence that she is otherwise quali-
fied. This burden includes the burden of producing evidence
of the existence of a reasonable accommodation that would
enable her to meet the educational institution's essential eligi-
bility requirements. The burden then shifts to the educational
institution to produce evidence that the requested accommo-
dation would require a fundamental or substantial modifica-
tion of its program or standards. The school may also meet its
burden by producing evidence that the requested accommoda-
tions, regardless of whether they are reasonable, would not
enable the student to meet its academic standards. However,
the plaintiff-student retains the ultimate burden of persuading
the court that she is otherwise qualified.

C

Before turning to the merits of Zukle's claims, we must
decide whether we should accord deference to academic deci-
sions made by the school in the context of an ADA or Reha-
bilitation Act claim, an issue of first impression in this circuit.

In Regents of the Univ. of Michigan v. Ewing, the Supreme
Court analyzed the issue of the deference a court should
extend to an educational institution's decision in the due pro-
cess context. See 
474 U.S. 214
 (1985). In Ewing, the plaintiff-
medical student challenged his dismissal from medical school
as arbitrary and capricious in violation of his substantive due
process rights. See id. at 217. The Court held that:

       When judges are asked to review the substance of a
       genuinely academic decision, such as this one, they
       should show great respect for the faculty's profes-
       sional judgment. Plainly, they may not override it
       unless it is such a substantial departure from
       accepted academic norms as to demonstrate that the
       person or committee responsible did not actually
       exercise professional judgment.

Id. at 225 (footnote omitted).

While the Court made this statement in the context of a due
process violation claim, a majority of circuits have extended
judicial deference to an educational institution's academic
decisions in ADA and Rehabilitation Act cases. See Doe v.
New York Univ., 666 F.2d 761 (2d. Cir. 1981); McGregor v.
Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850 (5th Cir.
1993); Wynne v. Tufts Univ. Sch. of Med. ("Wynne I"), 932
F.2d 19 (1st. Cir. 1991).13 But see Pushkin v. Regents of the
Univ. of Colorado, 658 F.2d 1372 (10th Cir. 1981) (refusing
to adopt deferential, rational basis test in evaluating educa-
tional institution's decisions in Rehabilitation Act case).
These courts noted the limited ability of courts, "as contrasted
to that of experienced educational administrators and
professionals," to determine whether a student "would meet
reasonable standards for academic and professional achieve-
ment established by a university," and have concluded that
" `[c]ourts are particularly ill-equipped to evaluate academic
performance.' " Doe, 666 F.2d at 775-76 (quoting Board of
Curators of Univ. of Missouri v. Horowitz, 
435 U.S. 78
, 92
(1978)).

[6] We agree with the First, Second and Fifth circuits that
an educational institution's academic decisions are entitled to
deference. Thus, while we recognize that the ultimate deter-
mination of whether an individual is otherwise qualified must
be made by the court, we will extend judicial deference "to
the evaluation made by the institution itself, absent proof that
its standards and its application of them serve no purpose
other than to deny an education to handicapped persons."
Doe, 666 F.2d at 776.

[7] Deference is also appropriately accorded an educational
institution's determination that a reasonable accommodation
is not available. Therefore, we agree with the First Circuit that
"a court's duty is to first find the basic facts, giving due defer-
ence to the school, and then to evaluate whether those facts
add up to a professional, academic judgment that reasonable
accommodation is not available." Wynne I, 932 F.2d at 27-28;
see also McGregor, 3 F.3d at 859 (the court must "accord def-
erence to [the school's] decisions not to modify its programs
[when] the proposed modifications entail academic
decisions").

We recognize that extending deference to educational insti-
tutions must not impede our obligation to enforce the ADA
and the Rehabilitation Act. Thus, we must be careful not to
allow academic decisions to disguise truly discriminatory
requirements. The educational institution has a "real obliga-
tion . . . to seek suitable means of reasonably accommodating
a handicapped person and to submit a factual record indicat-
ing that it conscientiously carried out this statutory
obligation." Wynne I, 932 F.2d at 25-26. Once the educational
institution has fulfilled this obligation, however, we will defer
to its academic decisions.

III

Having answered several preliminary questions, we now
turn to the ultimate question -- did Zukle establish a prima
facie case of discrimination under the ADA or the Rehabilita-
tion Act? As noted before, only the "otherwise qualified"
prong of the prima facie case requirements is disputed by the
parties. Zukle argues that she was otherwise qualified to
remain at the Medical School, with the aid of the three accom-
modations she requested. The Medical School argues that
Zukle's requested accommodations were not reasonable
because they would have required a fundamental or substan-
tial modification of its program. See Alexander , 469 U.S. at
300 (holding that institution subject to Rehabilitation Act may
be required to make reasonable modifications to accommo-
date a disabled plaintiff, but need not make fundamental or
substantial modifications).

Zukle bears the burden of pointing to the existence of a rea-
sonable accommodation that would enable her to meet the
Medical School's essential eligibility requirements. Once she
meets this burden, the Medical School must show that Zukle's
requested accommodation would fundamentally alter the
nature of the school's program. We must determine, viewing
the evidence in the light most favorable to Zukle, if there are
any genuine issues of material fact with regard to the reason-
ableness of Zukle's requested accommodations. See Margolis
v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).

We note at this stage that "[r]easonableness is not a con-
stant. To the contrary, what is reasonable in a particular situa-
tion may not be reasonable in a different situation--even if
the situational differences are relatively slight. " Wynne v.
Tufts Univ. Sch. of Med. ("Wynne II"), 976 F.2d 791, 795 (1st
Cir. 1992). Thus, we must evaluate Zukle's requests in light
of the totality of her circumstances. See Barnett, 157 F.3d at
748 ("Whether a particular accommodation is reasonable
depends on the circumstances of the individual case.").

[8] The evidence is undisputed that the Medical School
offered Zukle all of the accommodations that it normally
offers learning disabled students. When the Medical School
first learned of Zukle's disability she was offered double time
on exams, notetaking services and textbooks on audio cas-
settes. Further, Zukle was allowed to retake courses, proceed
on a decelerated schedule and remain at the Medical School
despite being subject to dismissal under the Medical School's
bylaws.

[9] Even with these accommodations, Zukle consistently
failed to achieve passing grades in her courses. Though Zukle
was on a decelerated schedule, she continued to receive "Y"
grades in her pre-clinical years and failed the USMLE on her
first attempt. Further, although she was able to remedy some
of her failing grades in her pre-clinical years, she was only
able to do so by retaking exams. Moreover, she received a
"Y" grade in her first clinical clerkship, automatically placing
her on academic probation, and an "F" in her second. Because
Zukle received a failing grade while on academic probation,
she was subject to dismissal pursuant to the Medical School's
bylaws. Clearly, Zukle could not meet the Medical School's
essential eligibility requirements without the additional
accommodations she requested.

The issue, then, is whether the ADA and Rehabilitation Act
required the Medical School to provide Zukle with those addi-
tional accommodations. As noted above, the Medical School
was only required to provide Zukle with reasonable accom-
modations. Accordingly, we examine the reasonableness of
Zukle's requested accommodations.

A

Zukle claims that the Medical School should have granted
her request to modify her schedule by beginning the first half
of the Family Practice Clerkship instead of finishing the sec-
ond half of her OB-GYN clerkship when she returned from
retaking the USMLE. She proposed that she would then begin
the Medicine clerkship, and finish Family Practice and OB-
GYN at a later time.

The Regents presented evidence that granting this request
would require a substantial modification of its curriculum.
While the Medical School has granted some students reading
time prior to the commencement of a clerkship, Dean Walsh
testified that once a clerkship begins "all students are
expected to complete the reading and other requirements of
the clerkship, including night call and ward care, and to pre-
pare themselves for the written exam which is given only at
the end of the 8-week clerkship." Zukle's request would have
entailed interrupting her OB-GYN clerkship, and starting the
Medicine clerkship before finishing the Family Practice clerk-
ship. Thus, by the time Zukle began the Medicine clerkship
she would have had two uncompleted clerkships.

[10] Dean Walsh testified that the only time the Medical
School allows a student to begin a clerkship, interrupt it, and
then return to that clerkship at a later point is when a student
has failed the USMLE and needs time off to study. However,
the student is still required to return to the same clerkship.
Given that no student had been allowed to rearrange her clerk-
ships in the manner Zukle requested and that Zukle's request
would entail Zukle interrupting two courses to complete them
at some later date, we have little difficulty concluding that
this would be a substantial alteration of the Medical School's
curriculum. See Davis, 
442 U.S. at 413
 (holding that a school
is not required to make substantial modifications to accommo-
date a handicapped student).

[11] Zukle argues that the Medical School allowed numer-
ous students to rearrange their clerkship schedules, and thus
there is a material issue of fact as to whether her request was
reasonable. However, while the students that Zukle mentions
were allowed to remedy failing grades by retaking clerkships
or exams, none was allowed to begin a clerkship, interrupt it,
begin another clerkship, and retake the second half of the first
clerkship at a later point. The facts are undisputed that no stu-
dent had been allowed to rearrange their clerkship schedule as
Zukle requested. Indeed, Zukle admitted in the district court
that "no student has been permitted to finish an interrupted
course in the fashion [she] requested because it would require
substantial curricular alteration."14  We defer to the Medical
School's academic decision to require students to complete
courses once they are begun and conclude, therefore, that this
requested accommodation was not reasonable.

B

Two weeks before the scheduled written exam in her Medi-
cine clerkship, Zukle asked Dr. Silva, her advisor, if she could
have more time to prepare for the exam because she was
behind in the readings. Zukle testified that she specifically
requested to leave the hospital early every day so that she
could spend more time preparing for the written exam in
Medicine. Dr. Silva and Zukle spoke with the Instructor of
Record in Zukle's Medicine clerkship, Dr. Lawrence. Dr.
Lawrence told Zukle that she could not excuse her from the
in-hospital part of the clerkship. Dr. Lawrence testified that
she denied this request because she thought that it would be
unfair to the other students.

[12] The Medical School presented uncontradicted evi-
dence that giving Zukle reduced clinical time would have fun-
damentally altered the nature of the Medical School
curriculum. The Medical School presented the affidavit of
Dean Lewis in which he explained the significance of the
clinical portion of the Medical School curriculum:

       The third-year clinical clerkships are designed to
       simulate the practice of medicine . . . . Depending on
       the specialty and the setting, students are generally
       required to be "on call" at the hospital through an
       evening and night one or more times each week.
       Other than these call nights, students remain at the
       hospital or clinic during day time hours on a sched-
       ule similar to that expected of clinicians. . . . Releas-
       ing a student from a significant number of scheduled
       hours during the course of a rotation would compro-
       mise the clerkship's curricular purpose, i.e. the simu-
       lation of medical practice.

We defer to the Medical School's academic decision that the
in-hospital portion of a clerkship is a vital part of medical
education and that allowing a student to be excused from this
requirement would sacrifice the integrity of its program. Thus,
we conclude that neither the ADA nor the Rehabilitation Act
require the Medical School to make this accommodation.

[13] In any event, the evidence shows that Zukle was not
prejudiced by the Medical School's failure to grant this
accommodation because she in fact passed the Medicine writ-
ten exam. See Ellis v. Morehouse Sch. of Med. , 925 F.Supp.
1529, 1548 (N.D. Ga. 1996) (noting that student was not prej-
udiced by failure to accommodate because he passed exam for
which he was denied accommodation). Zukle's low score on
the exam did not help her Medicine grade, but Zukle failed
the clerkship because of her inadequate clinical performance.
Indeed, as the district court stated, because Zukle was doing
so poorly in the clinical portion of the clerkship,"[g]iving
[her] time off from the clinical portion to study for the test[ ]
could not have helped, but could only have further damaged,
her already marginal clinical skills." Thus, Zukle did not
establish that she would have been able to meet the Medical
School's requirements with the requested accommodation.

C

Finally, after she was dismissed, Zukle requested that the
ad hoc Board place her on a decelerated schedule during the
clinical portion of her studies. Specifically, Zukle sought eight
weeks off before each clerkship to read the assigned text for
that clerkship in its entirety.15

Zukle presented evidence that the Medical School regularly
allowed students to proceed on a decelerated schedule.
Indeed, Zukle herself was allowed an extra year to complete
the pre-clinical curriculum. However, no student had been
provided the specific accommodation that Zukle requested,
i.e., taking eight weeks off between clerkships. Furthermore,
simply because the Medical School had granted other stu-
dents' requests to proceed on a decelerated schedule, does not
mean that Zukle's request was reasonable. The reasonableness
of Zukle's request must be evaluated in light of Zukle's par-
ticular circumstances.

[14] We agree with the district court that the Board's denial
of Zukle's request to proceed on a decelerated schedule was
a "rationally justifiable conclusion." See Wynne II, 976 F.2d
at 793 (quoting Wynne I, 932 F.2d at 26). The Board noted
that, even on a decelerated schedule during the pre-clinical
phase, Zukle experienced severe academic difficulties: Zukle
earned deficient grades in five courses and failed the USMLE
exam on her first attempt even though she had taken several
pre-clinical courses twice. The Board noted that there is "a
fair amount of overlap on written exams of material from
second-year courses and that the clinical work overlaps with
the written." In sum, the evidence makes clear that the decel-
erated schedule would not have aided Zukle in meeting the
Medical School's academic standards. Given Zukle's unenvi-
able academic record, allowing her to remain in Medical
School on a decelerated schedule would have lowered the
Medical School's academic standards, which it was not
required to do to accommodate Zukle. See Davis , 442 U.S. at
413.16

IV

In conclusion, we are persuaded that Zukle failed to estab-
lish that she could meet the essential eligibility requirements
of the Medical School with the aid of reasonable accommoda-
tions. Accordingly, she failed to establish a prima facie case
of disability discrimination under the ADA or the Rehabilita-
tion Act.

AFFIRMED. the end

_______________________________________________________________

FOOTNOTES

1 The Medical School assigns letter grades of A, B, C, D, F, I and Y to
measure academic performance. A "Y" grade in a pre-clinical course is
provisional; it means that a student has earned a failing grade but will be
or has been permitted to retake the exam. However, a "Y" grade in a clini-
cal clerkship indicates unsatisfactory performance in a major portion of
that clerkship and may not be converted until the student repeats that por-
tion of the clerkship.
2 The Medical School's Committee on Student Evaluation and Promo-
tion, which consists of two Promotions Boards and the SEC, monitors the
progress of students with academic difficulties. Promotions Board A
reviews preclinical students (i.e. students in the first two years of study);Promotions Board B reviews clinical students (i.e. students in the last two
years of study). Generally, the SEC meets with students and their advisors
before making a recommendation to the appropriate Promotions Board.
The Promotions Board then conducts an independent review of the stu-
dent's performance and decides whether to accept or reject the SEC's rec-
ommendation.
3.The Medical School's bylaws provide that a student is subject to dis-
missal if she receives two or more failing grades within one academic
quarter. Zukle received two "Y" grades in her first quarter.
4 The Medical School's bylaws provide that a student on academic pro-
bation is required to remedy her deficient grades, and is subject to dis-
missal for failure to do so or if she receives another deficient grade while
on academic probation.
5 Under timed conditions, Zukle's reading comprehension is in the 2nd
percentile, whereas when untimed her comprehension is in the 83rd per-
centile.
6 Zukle's score placed her in the 5th percentile nationally.
7 Zukle's score placed her in the 9th percentile nationally.
8 The Promotions Board had voted to remove Zukle from academic pro-
bation in October 1994. At that time, it was unaware of her OB-GYN
clerkship grade. The Medical School's bylaws provide that a student who
receives a "Y" grade in her third or fourth years is automatically placed
on academic probation at the time of receipt of the grade.
9 The Medical School's bylaws provide that any student who has been
dismissed from the Medical School may appeal her dismissal to the Dean,
who in turn may appoint an ad hoc board consisting of five faculty mem-
bers and two students to review the appeal. The Dean is responsible for
the final disposition of the appeal.
10 Zukle did not raise her race, sex or sexual harassment claims in her
opening brief; therefore she has waived any appeal from the district
court's grant of summary judgment on these claims. See Sanchez v.
Pacific Powder Co., 147 F.3d 1097, 1100 (9th Cir. 1998) ("Ordinarily, a
party's failure to raise an issue in the opening brief constitutes a waiver
of that issue.").
11 There is no significant difference in analysis of the rights and obliga-
tions created by the ADA and the Rehabilitation Act. See 42 U.S.C.
S 12133 ("The remedies, procedures, and rights set forth in [the Rehabili-
tation Act] shall be the remedies, procedures, and rights [applicable to
ADA claims]."); Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998) (stating
that courts are required to "construe the ADA to grant at least as much
protection as provided by the regulations implementing the Rehabilitation
Act"). Thus, courts have applied the same analysis to claims brought
under both statutes, see Doe v. Univ. of Maryland Med. Sys. Corp., 50
F.3d 1261, 1265 n.9 (4th Cir. 1995) ("Because the language of the two
statutes is substantially the same, we apply the same analysis to both."),
and courts routinely look to Rehabilitation Act case law to interpret the
rights and obligations created by the ADA, see, e.g., Collings v. Longview
Fibre Co., 63 F.3d 828, 832 n. 3 (9th Cir. 1995) ("The legislative history
of the ADA indicates that Congress intended judicial interpretation of the
Rehabilitation Act be incorporated by reference when interpreting the
ADA."); Theriault v. Flynn, 162 F.3d 46, 48 n.3 (1st. Cir. 1998) ("Title
II of the ADA was expressly modeled after Section 504 of the Rehabilita-
tion Act, and is to be interpreted consistently with that provision."); cf.
Weinreich v. Los Angeles County Metro. Transp. Auth. , 114 F.3d 976, 978
(9th Cir. 1997) ("Title II of the ADA was expressly modeled after Section
504 of the Rehabilitation Act . . . ." (citations omitted)).
12 Zukle does not argue that she could meet the Medical School's essen-
tial eligibility requirements without the aid of reasonable accommodations.
Indeed, Zukle could not make this argument. As discussed below, Zukle
had failed to meet the Medical School's essential eligibility requirements
at the time she was dismissed. Because she had received a failing grade
while on academic probation, she was subject to dismissal pursuant to the
Medical School's bylaws. Accordingly, Zukle must show that she can
meet the academic standards of the Medical School with the aid of reason-
able accommodations. See Barnett v. U.S. Air, Inc., 157 F.3d 744, 748 n.2
(9th Cir. 1998).
13 Each circuit has, however, developed its own formulation of the defer-
ence standard. Compare Doe, 666 F.2d at 776 (holding that in determining
whether a plaintiff is otherwise qualified to attend medical school,
"considerable judicial deference must be paid to the evaluation made by
the institution itself, absent proof that its standards and its application of
them serve no other purpose than to deny an education to handicapped
persons." (emphasis added)), with McGregor , 3 F.3d at 859 ("[A]bsent
evidence of discriminatory intent or disparate impact, we must accord
reasonable deference to the [school's] academic decisions." (emphasis
added)).
14 Zukle stated that this statement was "undisputed" in her Response to
Separate Statement of Undisputed Facts.
15 The Regents allege that Zukle has abandoned this argument on appeal.
While Zukle's presentation of this issue in her opening brief is not exten-
sive, we do not feel that it is so lacking that she can be said to have aban-
doned it.
16 Furthermore, Zukle requested this accommodation after the Medical
School's decision to dismiss her. At no time prior to her dismissal did she
request that the Medical School place her on a decelerated schedule. Her
failure to request this accommodation earlier contributes to our finding of
unreasonableness. See Wynne II, 976 F.2d at 796 n.3 (finding relevant to
reasonableness inquiry the fact that student did not ask for accommodation
"until after [the school] sent him packing and adversary proceedings were
underway").