Andrew H.K. Wong v. Regents of the University of California

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

The majority opinion filed on August 18, 2004, is amended as follows:

At 379 F.3d at 1108, replace the first sentence of the paragraph which begins “Regarding the activity of learning ...,” with the following:

At 379 F.3d at 1108-09, replace the paragraph which begins on page 1108 and extends to the next page with the following:

The next sentence, beginning “As for the activity of reading ...,” starts a new paragraph (correctly shown at Slip op. at 11562, but incorrect at 379 F.3d at 1109). That paragraph is otherwise unchanged.

At 379 F.3d at 1109, delete the first paragraph of footnote 6 such that the footnote consists only of the remaining paragraph.

The dissenting opinion of Judge Thomas is amended, on 379 F.3d at 1110, by deleting the sixth sentence of the first paragraph, which is the sentence beginning with the words “At a minimum,.... ”

With the opinions as amended, Judges Beezer and Clifton have voted to deny the petition for rehearing. Judge Thomas has voted to grant the petition for rehearing.

Judge Clifton has voted to deny the petition for rehearing…

dissenting:

One of the central purposes of Title II of the Americans with Disabilities Act is to provide equal opportunity for those individuals who are qualified to receive government services but cannot complete the program requirements without a reasonable accommodation of their disability. Unfortunately, the majority opinion turns this idea on its head by holding that, as a matter of law, academic success definitively disproves the existence of a learning disability. This interpretation places individuals with disabilities in a classic Catch-22 situation. In order to receive an accommodation, the disabled person must show that he or she can satisfy the program’s minimum eligibility requirements. However, under the majority theory, if the student meets those prerequisites, then the student cannot receive an accommodation because establishing qualification proves the student isn’t disabled. Not only does this interpretation evert the ADA’s underlying theory, but it is antithetical to ADA’s requirement of individualized assessment of disability.

Therefore, I must respectfully dissent.

I

The elements of an action under the Rehabilitation Act and Title II of the ADA are well…

410 F.3d 1052 Andrew H.K. WONG, Plaintiff-Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant-Appellee. No. 01-17432. United States Court of Appeals, Ninth Circuit. Argued and Submission Deferred February 12, 2003. Submitted April 17, 2003. Filed August 18, 2004. Amended June 7, 2005. COPYRIGHT MATERIAL OMITTED Dan Siegel (argued), Hunter Pyle, Siegle & Yee, Oakland, California, for the plaintiff-appellant. Michael T. Lucey, Michael D. Bruno, Joel K. Liberson (argued), Gordon & Rees LLP, San Francisco, California, for the defendant-appellee. Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. CV-96-00965-LKK(DAD). Before BEEZER, THOMAS and CLIFTON, Circuit Judges. 1 ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION ORDER 2 The majority opinion filed on August 18, 2004, is amended as follows: 3 At 379 F.3d at 1108, replace the first sentence of the paragraph which begins "Regarding the activity of learning ...," with the following: 4 Regarding the activity of learning, Wong's claim to be "disabled" was…