What Does “Conclusory” Mean? Jim Walsh
It Began with Football • A.M. transferred from Episcopal High School to Dunham School after his freshman year in high school. • Due to Louisiana High School Athletic Association rules, he was not allowed to play football for a year. • Dad sought an exemption. Denied. Sought TRO. Denied.
504 to the Rescue! • Then the father filed suit in federal court, alleging that his son was the victim of discrimination based on disability. • The transfer to the new school was necessary to get A.M. the individualized attention and accommodations he needed. • What evidence supports this claim? See next slide!
Dr. Lawson’s Report • “Diagnosis of a mental disorder, such as anxiety, means that A.M. meets the criteria for a disability under the Americans with Disabilities Act, as the disorder substantially limits his life activities, specifically in terms of learning, concentrating, thinking, and working.”
Buzz Words Notice that Dr. Lawson cited a: MENTAL DISORDER that SUBSTANTIALLY LIMITS LIFE ACTIVITIES Like LEARNING, CONCENTRATING, THINKING, WORKING.
This Tells Us That…. • Dr. Lawson knows the ADA definition of a person with a disability. • Presumably, Dr. Lawson is a qualified, competent professional. • So: does this make the student a “person with a disability”?
What the Court Said • “Dr. Lawson’s diagnosis of A.M.’s anxiety disorder is INSUFFICIENT, standing alone, to support a finding that [the dad] is likely to succeed in proving that [the boy] is disabled under the ADA.” • The evidence does not “articulate or describe any particular way that [the boy] is SUBSTANTIALLY LIMITED in any of these major life activities due to his anxiety disorder.”
Notice • The court does not question the diagnosis. But the diagnosis is not enough. • The doctor’s opinion that the disorder “substantially limits” the boy is not enough. • It has to be spelled out in some particular way. • There must be FACTS that connect the dots between the diagnosis and the substantial limitation.
ADA/504 Standards • As the court points out, ADA/504 standards changed with the passage of the 2008 ADA Amendments Act. • The changes broadened coverage. • But the changes did not change the fact that there must be some evidence of a SUBSTANTIAL LIMITATION.
You Don’t Need an Expert • Determining SUBSTANTIAL LIMITATION does not usually require expertise or professional training. • The question is: how does this person’s ability compare to the AVERAGE PERSON in the GENERAL POPULATION. • In the areas of learning, thinking and concentrating, teachers are particularly well suited to answer that question.
It’s a Tough Standard • “In the 5th Circuit, to be substantially limited means to be UNABLE to perform a major life activity that the average person in the general population can perform, or be SIGNIFICANTLY RESTRICTED in the ability to perform it.”
Our New Vocabulary Word • Thus the court dismissed Dr. Lawson’s report as CONCLUSORY. • Webster’s: “consisting of, or relating to, a conclusion or assertion for which no supporting evidence is offered.”
Why Does This Matter? • Schools receive a lot of CONCLUSORY reports from qualified and competent professionals. • School staff need to develop the ability to 1) determine when a report is conclusory; and 2) explore the factual basis for the conclusion; and explain to the parent why a conclusory report cannot be given much weight.
How to Tell • Conclusory reports, like Dr. Lawson’s, generally lack FACTS. • In the area of ADA/504, they lack any FACTUAL comparison between the person and the “average person” in the general population.
How to Probe • How does this person’s ability compare with the average person? Remember that with children, age is a factor. • In fact, with most of us, age is a factor. • What data do you have to support your conclusion?
How to Explain • “This report does not give us much factual data in support of the conclusions.” • “We respect the doctor’s opinion, but we need some factual data to back it up.” • “We get a lot of opinions from a lot of professionals. We give more weight to those reports that explain how the doctor arrived at the conclusions.”
The Case • Mann v. Louisiana High School Athletic Association, 2013 WL 3475116, and 61 IDELR 186. • Decided by the 5th Circuit, July 11, 2013.
Contact JIM WALSH Walsh, Anderson, Gallegos, Green & Treviño, P.C. P.O. Box 2156 Austin, Texas 78768 Phone: 512-454-6864 Fax: 512-467-9318 Email: firstname.lastname@example.org Web: www.WalshAnderson.com Twitter: twitter.com/JWalshtxlawdawg
The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.