“The ADA does not 16 require clairvoyance.”
How later courts described this case
- “The ADA does not 16 require clairvoyance.”
- addressing provision of assistive technology for 26 deaf or hard-of-hearing students
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 TENOR D. ICKES, Case No. 25-cv-05859-EMC
8 Plaintiff,
ORDER GRANTING DEFENDANT’S
9 v. MOTION TO DISMISS
10 UNIVERSITY OF CALIFORNIA
COLLEGE OF THE LAW, SAN Docket No. 34
11 FRANCISCO,
12 Defendant.
13
14 Plaintiff Tenor Ickes has filed suit against Defendant University of California College of
15 the Law, San Francisco (“UC Law”). Mr. Ickes was enrolled at UC Law as a law student but was
16 initially disqualified in the spring of 2023 and later permanently disqualified in the spring of 2025
17 on the basis that he did not meet certain academic requirements. According to Mr. Ickes, he was
18 not able to meet those requirements because, inter alia, UC Law failed to accommodate his
19 disability. Mr. Ickes claims disability on the basis that he “was diagnosed with Tourette
20 Syndrome, chronic tic disorder, ADHD, and additional comorbidities”; as a result, he experiences
21 “cognitive flexibility impairment, social deficits, and executive functioning challenges.” FAC ¶¶
22 35, 90-91. The accommodation that Mr. Ickes argues he should have been provided is “a flexible
23 schedule [which would have] help[ed] [him] to succeed in law school because his Tourette
24 Syndrome symptoms can be aggravated by rigid routines or an emphasis on quantity rather than
25 quality of work.” FAC ¶ 23; see also FAC ¶ 24 (alleging that “[a] flexible schedule enables Mr.
26 Ickes to manage his symptoms more effectively, allowing him to participate in academic activities
27 during periods when his symptoms are less severe, and to take breaks or adjust his workload as
1 Previously, the Court denied Mr. Ickes’s motion for a TRO (predicated on the original
2 complaint) and then his motion for a preliminary injunction (predicated on the operative first
3 amended complaint (“FAC”)). The denial was based, inter alia, on Mr. Ickes’s failure to raise
4 even serious questions on the merits of his claims. Now pending before the Court is UC Law’s
5 motion to dismiss. Having considered the parties’ briefs as well as the oral argument of counsel,
6 the Court hereby GRANTS the motion to dismiss.
7 I. FACTUAL & PROCEDURAL BACKGROUND
8 In the operative FAC, Mr. Ickes alleges as follows.
9 Mr. Ickes enrolled in UC Law in the fall of 2022. See FAC ¶ 31. In his application for
10 admission to the law school, he noted that he had been “diagnosed with childhood Tourette
11 Syndrome” but added that “the symptoms faded by adulthood.” Orig. Compl., Ex. 7 (law school
12 application)1; see also FAC ¶ 40 (alleging that, in his application, he disclosed to UC Law that his
13 “Tourette Syndrome symptoms were well-controlled”). Mr. Ickes did not mention any co-
14 morbidities related to his Tourette’s, such as ADHD.
15 In May 2022, several months before he started at the university, Mr. Ickes received an
16 email from the school which included the following note:
17 (Deadline: June 17) Accommodations due to a documented
disability: UC Hastings’ Disability Resource Program (DRP) seeks
18 to ensure that all students are afforded equal access to educational
opportunities. Accommodations for students with documented
19 disabilities may be available on an individual basis subject to the
findings and determination of the DRP Director. Students are
20 advised to email disabilityresourceprogram@uchastings.edu by June
17, 2022 for consideration of accommodation requests for the fall
21 semester. More information is available on the Admitted Students
Webpage . . . .
22
FAC, Ex. 34 (email) (emphasis in original).
23
The website, in turn, stated:
24
Students can contact the Disability Resource Program via email or
25 call DRP . . . before or at the very beginning of the semester to
initiate this process and for timely consideration of classroom-based
26
27
1 Although parts of the original complaint were filed under seal, information about and related to
accommodations. In order to provide accommodations that require
1 faculty notification or special arrangements, the intake process
should be completed before the first day of class.
2
3 FAC, Ex. 26 (emphasis in original).
4 Mr. Ickes did not contact DRP and ask for any accommodation for his disabilities before or
5 during his first semester. Implicitly, he did not do so because his symptoms were under control at
6 that time. See FAC ¶ 40 (alleging that his symptoms were well controlled at the time he applied to
7 UC Law).
8 In his first semester (Fall 2022), Mr. Ickes did not have any academic difficulties. But, in
9 the spring semester (Spring 2023), things took a downturn. In March 2023, a close friend passed
10 away. That event, along with “law school stressors,” “triggered a significant resurgence of Mr.
11 Ickes’[s] [disability-related] symptoms, substantially impairing his ability to think, learn, study
12 and take exams in law school.” FAC ¶ 40. Although Mr. Ickes needed an accommodation by the
13 middle of the semester, he did not ask for an accommodation at that time. Mr. Ickes now asserts
14 that, because of his disability, he understood (or misunderstood) the communications from UC
15 Law described above to mean he could ask for an accommodation only at the beginning of the
16 semester. He believed that, once the semester commenced, UC Law barred students from asking
17 for accommodations mid-semester. See FAC ¶¶ 41-42.
18 At the end of the spring semester, Plaintiff’s GPA fell below 2.5, the minimum that law
19 students are required to maintain to remain enrolled. See FAC ¶ 43 (alleging that his GPA fell to
20 2.445). As a result, he was academically disqualified. However, UC Law had a policy that
21 allowed disqualified students to petition for readmission. See FAC ¶ 43. The policy is codified in
22 Academic Regulation § 1502. Section 1502 provides as follows:
23 1502. Readmission procedure and criteria. A student who is
excluded under §1501 may petition for readmission to the
24 Committee on Disqualified Students. The Committee may grant the
petition only if it determines that the petitioner has convincingly
25 established that: (a) there existed extenuating circumstances
beyond the petitioner’s control (including, but not limited to,
26 personal illness or death or serious illness of a friend or family
member) that had a severe and adverse impact on the petitioner and
27 that were the primary cause of the petitioner’s poor academic
minimum cumulative grade point average or better if the petitioner
1 is readmitted to the College; and (c) it is likely that the petitioner
would be able to achieve the minimum cumulative grade point
2 average or better at the conclusion of the student’s re-enrollment in
the first-year curriculum and maintain the minimum cumulative
3 grade point average or better through graduation.
4 The petitioner may submit written evidence in support of the
petition and upon request shall have the right to appear before the
5 Committee. In evaluating the petition, the Committee shall consider
the petitioner’s Hastings file and the evidence submitted by the
6 petitioner that is relevant to the criteria set forth above. The
Committee may also request the opinions of faculty members or
7 academic support personnel who have worked with the petitioner.
8 Acad. Reg. § 1502 (emphasis added).
9 Mr. Ickes submitted a petition for readmission. In his petition, he stated that there were
10 extenuating circumstances because his friend had passed away. See Compl., Ex. 5 (petition for
11 readmission) (stating that, “[a]s a person who completed a 10-week out-patient alcohol
12 rehabilitation program in 2019 and who is passionate about living a substance-free life since then,
13 hearing news about friends from the past who did not go through a substance abuse program and
14 who have now died from substance abuse related causes is upsetting, depressing, and traumatic to
15 me,” and “[t]his tragedy was the primary case of my D in Public Health Law, resulting in a 2.45
16 GPA”). He did not mention his disability and the disability-related symptoms that had been
17 triggered by the event of his friend’s passing. See FAC ¶ 45. According to Mr. Ickes, he believed
18 he could not claim his disability and related symptoms as an extenuating circumstance because §
19 1502 required that the extenuating circumstance not be “likely to continue” and his disability
20 would never go away, but rather would always be with him. See FAC ¶¶ 12, 110. Thus, Mr. Ickes
21 contends that § 1502 “coerced silence” about his disability, preventing him from asserting a
22 disability and the need for accommodation. FAC ¶ 12.
23 Mr. Ickes now maintains that his understanding (or misunderstanding) of § 1502 was
24 affected by his disability. However, in a declaration submitted in conjunction with his preliminary
25 injunction motion, he also asserts that, before he petitioned for readmission, he talked with his
26 family about the requirements of § 1502 and they all agreed, given its terms, he should not
27 mention his disability. See Docket No. 28-1 (Ickes Decl. ¶ 34) (“We agreed that under the
1 statement, Mr. Ickes’s position would seem to be that § 1502 is confusing not only to disabled
2 persons, but also to nondisabled persons such as his family members with whom he consulted.
3 Those family members include his mother, an attorney and counselor of record herein.
4 In July 2023, a hearing was held on Mr. Ickes’s petition for readmission. See FAC ¶ 46.
5 Although Mr. Ickes claims he believed § 1502 prevented him from mentioning his disability, he
6 brought his disability rights advocate (his mother and counsel of record) with him to the hearing.
7 See FAC ¶ 47. According to Mr. Ickes, his mother was told not to speak at the hearing. But there
8 is no indication that Mr. Ickes told UC Law, at the hearing, that he had a disability or that his
9 mother is his disability rights advocate. Mr. Ickes suggests that UC Law should have known he
10 suffers from Tourette Syndrome because he disclosed the disability in his law school application.
11 See FAC ¶ 48 (emphasizing that § 1502 requires UC Law to review a student’s “Hastings file”).
12 Mr. Ickes also seems to suggest that, even though he stated in his law school application that his
13 symptoms had faded by adulthood, UC Law should have, sua sponte, asked about his disability or
14 inquired into whether his academic difficulties were due to his disability. See FAC ¶ 39.
15 Following the hearing, Mr. Ickes was readmitted to the law school. But UC Law imposed
16 additional academic requirements as terms for his readmission. Implicitly, other students were not
17 subject to these additional academic requirements because they had not previously been
18 disqualified. But according to Mr. Ickes, UC Law should have engaged in a good faith interactive
19 process to see what the terms of readmission should have been because he is disabled. Mr. Ickes
20 maintains that, when UC Law imposed the additional academic requirements, he was being treated
21 differently from nondisabled students, and on the basis of his disability. See FAC ¶ 50. He does
22 not claim, however, that he was treated differently from other academically disqualified students
23 seeking readmission, including those who are not disabled.
24 Among the additional academic requirements imposed were the following: (1) Plaintiff had
25 to earn a B- or better in several required bar courses and (2) he had to take a “Law and Process”
26 course each year. The readmission terms required Plaintiff to receive a grade of “C” or above in
27 his “Law and Process” course, and a B- or better in his required bar courses, which included
1 conditions).
2 In the fall of 2023, Mr. Ickes did not ask for any accommodation for his disability at the
3 beginning of the semester. At some point in the semester, he met with Professor Laurie Zimet for
4 academic counseling and “expressed concern about the harmful requirements imposed upon him
5 by UC Law, treating him differently than other students.” FAC ¶ 51. But Mr. Ickes did not tell
6 the professor about his disability or his need for an accommodation because of the disability.
7 In Spring 2024, Mr. Ickes again did not ask for an accommodation for his disability.
8 Similarly, in Fall 2024 (the start of his 3L year), Mr. Ickes still did not request an accommodation.
9 For Spring 2025, the Dean of Students advised Mr. Ickes to take the Evidence Law and
10 Process course as his required Law and Process class. (As indicated above, one of the additional
11 academic requirements imposed on Mr. Ickes as a condition of readmission was that he take a Law
12 and Process class each year.) Mr. Ickes told the Dean that he does not do well with excessive
13 workload, but the Dean still directed that he take the class. See FAC ¶ 56. Mr. Ickes did not raise
14 the issue of his disability with the Dean, nor did he ask for an accommodation. When Mr. Ickes
15 missed the date to register for the class, the Dean still signed him up. See FAC ¶ 57.
16 During the spring semester, Mr. Ickes repeatedly told his professor, Tori Timmons, that he
17 was struggling with the workload for the Evidence Law and Process class. See FAC ¶ 58. He did
18 not mention his disability, nor did he ask for an accommodation. The professor told him to
19 prioritize assignments with higher points/graded assignments. Mr. Ickes followed this advice, but
20 the advice was flawed because he neglected participation assignments as a result, and this
21 ultimately factored into his final grade and permanent disqualification from the school (discussed
22 below). See FAC ¶ 59.
23 Subsequently, at the end of the spring semester, Mr. Ickes miscalendared the date of his
24 final exam for the Evidence Law and Process course. According to Mr. Ickes, he failed to
25 calendar the date correctly because of his disability. See FAC ¶ 61. Mr. Ickes found out about his
26 error on the date of the exam, see FAC ¶ 60 (alleging that he received an email stating that the
27 exam was taking place and that he was missing it), and arrived at the exam late. The Dean
1 minute deduction reflected his late arrival for the exam.
2 At the end of Spring 2025, Mr. Ickes received a C- for the Evidence Law and Process
3 class. See FAC ¶ 64. By receiving a C-, he failed to meet both the “C” or above requirement for
4 his Law and Process course and the “B-” requirement for his required bar course.
5 On May 20, 2025, Mr. Ickes was permanently disqualified from UC Law. See FAC ¶ 64.
6 Following his disqualification, UC Law allegedly retaliated against him. For example, on June 21,
7 2025, he was wrongfully locked out of his apartment building, and, on June 24, 2025, UC Law
8 contacted him directly, rather than his lawyer, to threaten immediate collection of disputed loans.
9 See FAC ¶ 68. These events occurred after Mr. Ickes sent a demand letter to UC Law in May
10 2025, asserting that Academic Regulation § 1502 discriminates against him. See FAC ¶ 66.
11 Based on, inter alia, the above allegations, Mr. Ickes asserts five causes of action based on
12 the ADA, the Rehabilitation Act, and/or their implementing regulations. See, e.g., 42 U.S.C. §§
13 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be excluded
14 from participation in or be denied the benefits of the services, programs, or activities of a public
15 entity, or be subjected to discrimination by any such entity.”); 29 U.S.C. § 794 (“No otherwise
16 qualified individual with a disability in the United States . . . shall, solely by reason of her or his
17 disability, be excluded from the participation in, be denied the benefits of, or be subjected to
18 discrimination under any program or activity receiving Federal financial assistance . . . .”); 28
19 C.F.R. § 35.160(a)(1) (“A public entity shall take appropriate steps to ensure that communications
20 with applicants, participants, members of the public, and companions with disabilities are as
21 effective as communications with others.”). While five separate claims are pled, Mr. Ickes has
22 asserted that his rights under the statutes/regulations were violated in the following ways:
23 (1) UC Law had an unreasonable policy that allowed students to request an
24 accommodation only at the beginning of and not anytime during the semester.
25 See FAC ¶ 27.
26 (2) Even if UC Law did not have such a policy, UC Law did not effectively
27 communicate to Mr. Ickes and people with disabilities such as his that he could
1 such possibility. See FAC ¶¶ 104, 113, 543.
2 (3) UC Law should have started the good faith interactive process with Mr. Ickes at
3 the beginning of the year because it knew about his disability (through his law
4 school application). See FAC ¶¶ 38-39. For the same reason, it also should
5 have reached out to Mr. Ickes once he began to have academic difficulties. See
6 FAC ¶¶ 48, 64.
7 (4) Mr. Ickes’s GPA fell below 2.5 (resulting in his first disqualification) because
8 his disability was never accommodated.
9 (5) Academic Regulation § 1502, which governs petitions for readmission, is
10 confusing to people who have disabilities such as Mr. Ickes’s – i.e., here again,
11 UC Law failed to effectively communicate to people with disabilities such as
12 his. See FAC ¶ 110. Because the policy is confusing, Mr. Ickes believed that
13 he could not claim his disability as the extenuating circumstance for his poor
14 academic performance. See FAC ¶ 110.
15 (6) UC Law should never have imposed the additional requirements it did for
16 readmission because it did not engage in a good faith interactive process before
17 imposing the requirements. As a result, Mr. Ickes was subject to requirements
18 that nondisabled students were not, and because of his disability.
19 (7) Mr. Ickes did not get the required minimum grade on the Evidence Law and
20 Process course because UC Law failed to accommodate his disability and
21 instead imposed unfair requirements.
22 (8) Mr. Ickes was permanently disqualified from the law school because UC Law
23 did not accommodate his disability.
24 (9) UC Law retaliated against Mr. Ickes by locking him out of his apartment
25 building, and directly contacting him, rather than his lawyer, to threaten
26 immediate collection of his loans. These events happened after Mr. Ickes’s
27 May 2025 demand letter which disclosed a need for accommodation and
1 ¶ 66.
2 For purposes of the instant motion, most of Mr. Ickes’s factual theories of ADA and
3 Rehabilitation Act violations can be grouped into the following two categories:
4 • UC Law failed to accommodate Mr. Ickes’s disabilities.
5 • UC Law failed to effectively communicate with persons who have disabilities such
6 as Mr. Ickes’s their rights to seek reasonable accommodations.
7 II. DISCUSSION
8 A. Legal Standard
9 UC Law moves to dismiss the entirety of Mr. Ickes’s FAC pursuant to Federal Rule of
10 Civil Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to
11 dismiss after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell
12 Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the
13 complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.’” Levitt v.
14 Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the
15 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving
16 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
17 “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must
18 contain sufficient allegations of underlying facts to give fair notice and to enable the opposing
19 party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v.
20 Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). “A claim has facial plausibility
21 when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that
22 the Defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility
23 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
24 a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
25 B. Failure to Accommodate
26 As noted above, Mr. Ickes’s ADA and Rehabilitation Act claims fall into two general
27 categories: (1) UC Law failed to accommodate his disability and (2) UC Law failed to effectively
1 and petitions for readmission.
2 Mr. Ickes’s accommodation claim is brought pursuant to Title II of the ADA and Section
3 504 of the Rehabilitation Act. Under Title II, “no qualified individual with a disability shall, by
4 reason of such disability, be excluded from participation in or be denied the benefits of the
5 services, programs, or activities of a public entity, or be subjected to discrimination by any such
6 entity.” 42 U.S.C. § 12312. Similarly, under the Rehabilitation Act, “[n]o otherwise qualified
7 individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the
8 participation in, be denied the benefits of, or be subjected to discrimination under any program or
9 activity receiving Federal financial assistance . . . .” 42 U.S.C. § 12312. “Title II of the ADA was
10 expressly modeled after Section 504 of the Rehabilitation Act.” Zukle v. Regents of Univ. of
11 California, 166 F.3d 1041, 1045 (9th Cir. 1999). “There is no significant difference in analysis of
12 the rights and obligations created by the [two statutes].” Id. at 1045 n.11.
13 To make out a prima facie case under either the ADA or Rehabilitation Act, Mr. Ickes
14 must allege that (1) he is disabled; (2) he is “otherwise qualified” to remain a student at UC Law,
15 i.e., he can meet the essential eligibility requirements of the school, with or without reasonable
16 accommodation; (3) he was dismissed solely because of his disability; and (4) UC Law receives
17 federal financial assistance (for the Rehabilitation Act claim), or is a public entity (for the ADA
18 claim). See id. at 1045.
19 For purposes of the pending motion, the critical elements are (2) and (3). UC Law asserts
20 that Mr. Ickes has failed to state a claim for relief because he has not sufficiently alleged the two
21 elements. In response, Mr. Ickes’s basic position is that he is “otherwise qualified” because he
22 could have met the eligibility requirements of UC Law if the school had accommodated his
23 disability. See id. (noting that, in the school context, an otherwise qualified person is an individual
24 who meets the academic standards for admission or participation, but under the ADA and
25 Rehabilitation Act, a school must provide a disabled student with reasonable accommodations to
26 ensure no discrimination on the basis of disability). For (3), he asserts that he was initially and
27 then permanently disqualified on the basis of his disability because the school knew about his
1 requirements on him than on nondisabled students.
2 The fundamental problem with Mr. Ickes’s position pertains to (3): UC Law had no
3 obligation to accommodate Mr. Ickes and avoid discrimination on the basis of his disability if (1)
4 Mr. Ickes did not make his current disability known to U.C. Law and ask for an accommodation or
5 (2) the school was not otherwise aware of his need for an accommodation. See Ting v. Adams &
6 Assocs., 823 Fed. Appx. 519, 523 (9th Cir. 2020) (“The district court properly dismissed Ting's
7 claim for failure to engage in the interactive process because she failed to plausibly allege that she
8 requested an accommodation or that Adams otherwise knew that she required one.”); Barnett v.
9 U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (“The interactive process is triggered either by
10 a request for accommodation by a disabled employee or by the employer's recognition of the need
11 for such an accommodation. . . . [¶] Almost all of the circuits to rule on the question have held that
12 an employer has a mandatory obligation to engage in the interactive process and that this
13 obligation is triggered either by the employee's request for accommodation or by the employer's
14 recognition of the need for accommodation.”), vacated on other grounds by 535 U.S. 391 (2002).
15 As to (1) Mr. Ickes never made a request for an accommodation at any point before he was
16 permanently disqualified. He did not make a request at the beginning of his 1L year (Fall 2022),
17 when his academic difficulties began (Spring 2023), during his readmission process (Summer
18 2023), at the beginning of or during the first semester after he was readmitted (Fall 2023), or at
19 any point in the three semesters that followed (Spring 2024, Fall 2024, and Spring 2025).
20 Mr. Ickes suggests that his failure to make a request for accommodation is not dispositive
21 because UC Law knew he needed an accommodation (i.e., (2) above). In support, he points to his
22 law school application where he disclosed his disability. But Mr. Ickes glosses over the fact that
23 his application merely states that he was “diagnosed with childhood Tourette Syndrome and that
24 “the symptoms faded by adulthood.” Compl., Ex. 7 (law school application) (emphasis added).
25 Thus, even if UC Law knew about the fact that he had a disability, it was not on any notice of a
26 current disability affecting his performance at the school. Moreover, in his application, Mr. Ickes
27 only disclosed Tourette Syndrome and not any co-morbidities, including but not limited to ADHD.
1 explained – how the school should have known of possible cognitive issues. UC Law is not a
2 medical expert. Cf. Choi v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 633 Fed. Appx. 214,
3 216 (5th Cir. 2015) (stating that, “under the ADA ‘it is important to distinguish between an
4 employer's knowledge of an employee's disability versus an employer's knowledge of any
5 limitations experienced by the employee as a result of that disability[;] [t]his distinction is
6 important because the ADA requires employers to reasonably accommodate limitations, not
7 disabilities’”); see also Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir. 1996) (stating
8 that, “[w]here the disability, resulting limitations, and necessary reasonable accommodations, are
9 not open, obvious, and apparent to the employer, as is often the case when mental disabilities are
10 involved, the initial burden rests primarily upon the employee, or his health-care provider, to
11 specifically identify the disability and resulting limitations, and to suggest the reasonable
12 accommodations”). Finally, even though Mr. Ickes began to have academic difficulties, he does
13 not explain why UC Law should have known that was because of a resurgence of a childhood
14 disability, especially a disability that did not involve any obvious cognitive learning issues such as
15 ADHD. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) (“The ADA does not
16 require clairvoyance.”).
17 Implicitly recognizing the problem with his position, Mr. Ickes presented, at the hearing on
18 the motion to dismiss, a new theory that he has not articulated to date. According to Mr. Ickes,
19 UC Law should have known that he had a disability in need of accommodation because, in his
20 petition for readmission, he stated that he was in addiction recovery, and addiction is one of the
21 comorbidities of Tourette syndrome. This new theory fares no better. First, Mr. Ickes made no
22 mention of Tourette’s in his petition. Second, while Mr. Ickes did note in his petition that he had
23 suffered from an addiction problem, he clearly indicated that the problem was in the past. See
24 Compl., Ex. 5 (petition for readmission) (stating that he had completed an outpatient alcohol
25 rehabilitation program in 2019 – i.e., some four years earlier – and had been “living a substance-
26 free life since then”). Finally, Mr. Ickes clearly stated in his petition that it was the death of his
27 friend that led him to struggle academically. See Compl., Ex. 5 (See Compl., Ex. 5 (petition for
1 rehabilitation program in 2019 and who is passionate about living a substance-free life since then,
2 hearing news about friends from the past who did not go through a substance abuse program and
3 who have now died from substance abuse related causes is upsetting, depressing, and traumatic to
4 me,” and “[t]his tragedy was the primary case of my D in Public Health Law, resulting in a 2.45
5 GPA”). Mr. Ickes also clearly stated in his petition that he was addressing the trauma he was
6 suffering as a result of his friend’s death by enrolling in “weekly, recurring therapy sessions . . . to
7 learn valuable CBT skills for the future, such as dealing with anxiety over a particular issue
8 learning how to handle powerful emotions, and dealing with grief.” Compl., Ex. 5. Thus, there is
9 nothing in the petition to support Mr. Ickes’s contention that UC Law was on notice that Mr. Ickes
10 was suffering from a disability that needed accommodation.
11 C. Effective Communication
12 Perhaps recognizing the problems with his accommodation claim, Mr. Ickes has focused in
13 his papers on his effective communication claim. See, e.g., Opp’n at 9 (contending that “UC
14 Law’s arguments about Plaintiff’s alleged failure to request accommodations are a diversion from
15 its own failure to communicate as required by law[;] [t]he dispositive issue is UC Law’s violation
16 of its duty to provide accessible, effective communication regarding accommodations and
17 readmissions policies which constitutes discrimination under the law”).
18 As indicated above, the effective communication claims are based on two factual
19 predicates.
20 • First, Mr. Ickes asserts that UC Law’s policy was to allow for a request for
21 accommodation only at the beginning of the semester – i.e., not midstream. At the
22 very least, Mr. Ickes understood (or misunderstood) this to be UC Law’s policy
23 because the university’s communications were not clear to people who have
24 disabilities such as his.
25 • Second, Mr. Ickes contends that Academic Regulation § 1502 did not allow for a
26 student to raise a disability issue as part of a petition for readmission. At the very
27 least, Mr. Ickes interpreted § 1502 as not permitting such because the regulation
1 According to Mr. Ickes, UC Law’s policies do not effectively communicate with people
2 who have disabilities such as his, and thus violated two regulations: 28 C.F.R. § 35.160 and §
3 42.503. Section 35.160 (an ADA regulation) requires that public entities “take appropriate steps
4 to ensure that communications with applicants, participants, members of the public, and
5 companions with disabilities are as effective as communications with others.” 28 C.F.R. §
6 35.160(a)(1). Section 42.503 (a Rehabilitation Act regulation) contains a similar requirement for
7 recipients of federal funding, providing that“[r]ecipients shall insure that communications with
8 their applicants, employees and beneficiaries are effectively conveyed to those having impaired
9 vision and hearing.”
10 1. Scope of Regulations
11 As an initial matter, Mr. Ickes’s claims fail because neither regulation is applicable. The
12 text of § 42.503(f) clearly limits its application to individuals with “impaired sensory, manual, or
13 speaking skills.” They focus on the means of communication. Mr. Ickes does not allege he has
14 these specific communicative impairments, but rather a cognitive one that hinges on
15 comprehension of the words communicated. See FAC ¶¶ 35, 90-91.
16 As for § 35.160, Mr. Ickes relies on subsection (a)(1) which – on its face – is not
17 specifically limited to communicative limitations. However, the Court cannot look at subsection
18 (a)(1) in isolation but rather must consider the entirety of the regulation. The section provides:
19 (a)
20 (1) A public entity shall take appropriate steps to ensure
that communications with applicants, participants,
21 members of the public, and companions with
disabilities are as effective as communications with
22 others.
23 (2) For purposes of this section, “companion” means a
family member, friend, or associate of an individual
24 seeking access to a service, program, or activity of a
public entity, who, along with such individual, is an
25 appropriate person with whom the public entity
should communicate.
26
(b)
27
individuals with disabilities, including applicants,
1 participants, companions, and members of the public,
an equal opportunity to participate in, and enjoy the
2 benefits of, a service, program, or activity of a public
entity.
3
(2) The type of auxiliary aid or service necessary to
4 ensure effective communication will vary in
accordance with the method of communication used
5 by the individual; the nature, length, and complexity
of the communication involved; and the context in
6 which the communication is taking place. In
determining what types of auxiliary aids and services
7 are necessary, a public entity shall give primary
consideration to the requests of individuals with
8 disabilities. In order to be effective, auxiliary aids
and services must be provided in accessible formats,
9 in a timely manner, and in such a way as to protect
the privacy and independence of the individual with a
10 disability.
11 (c)
12 (1) A public entity shall not require an individual with a
disability to bring another individual to interpret for
13 him or her.
14 (2) A public entity shall not rely on an adult
accompanying an individual with a disability to
15 interpret or facilitate communication except –
16 (i) In an emergency involving an imminent threat
to the safety or welfare of an individual or the
17 public where there is no interpreter available;
or
18 (ii) Where the individual with a disability
specifically requests that the accompanying
19 adult interpret or facilitate communication,
the accompanying adult agrees to provide
20 such assistance, and reliance on that adult for
such assistance is appropriate under the
21 circumstances.
22 . . . .
23 (d) Video remote interpreting (VRI) services. A public entity
that chooses to provide qualified interpreters via VRI
24 services shall ensure that it provides [certain standards].
25 28 C.F.R. § 35.160.
26 Based on the entirety of the regulation, UC Law asserts that subsections (b), (c), and (d)
27 implicitly limit the scope of what “effective communication” is required by (a) – i.e., to providing
1 communications for those with sensory disabilities. Mr. Ickes never requested any such auxiliary
2 tools. In other words, subsection(a)(1) sets the general goal: communications must be “as
3 effective as” communications with others. Section (b)(1) then specifies how to achieve that goal,
4 i.e., a public entity “shall furnish appropriate auxiliary aids and services” to remove sensory
5 barriers to communications. Thus, auxiliary aids and services include qualified interpreters,
6 notetakers, written materials, assistive listening devices, and so forth. Cf. 28 C.F.R. § 36.303(b)
7 (defining “auxiliary aids and services” in regulations that address public accommodations).
8 UC Law’s interpretation of the regulations as focusing on the means of communication for
9 those with sensory disabilities is stronger than Mr. Ickes’s which interprets the regulation as
10 encompassing not only the means but the substantive content of communications which may affect
11 comprehensibility for those with cognitive disabilities. First, UC Law’s interpretation is
12 consistent with the language of the full text of the regulation as noted above.
13 Second, it is consistent with the guidance from the U.S. Department of Justice, which
14 states that “[t]he purpose of the effective communication rules is to ensure that the person with a
15 vision, hearing, or speech disability can communicate with . . . the covered entity.” U.S. Dep’t of
16 Justice, Civ. Rts. Div., ADA Requirements: Effective Communication, ADA.gov,
17 https://www.ada.gov/resources/effective-communication/ (last visited Dec. 26, 2025). Thus,
18 implicitly, DOJ contemplates that the regulation relates to auxiliary aids or services. While such
19 agency guidance is no longer entitled to Chevron deference, see Loper Bright Enters. v.
20 Raimondo, 603 U.S. 369 (2024), it remains persuasive authority as to the regulation’s scope and
21 purpose.
22 Third, UC Law’s interpretation is consistent with case law. Courts applying § 35.160 have
23 done in contexts involving communication barriers due to sensory disabilities, not communication
24 barriers related to mental or cognitive impairments. See, e.g., K.M. ex rel. Bright v. Tustin Unified
25 Sch. Dist., 725 F.3d 1088, 1092 (9th Cir. 2013) (addressing provision of assistive technology for
26 deaf or hard-of-hearing students); Duffy v. Riveland, 98 F.3d 447, 449 (9th Cir. 1996) (addressing
27 the provision of assistive technology for a deaf Washington state prisoner). Here, Mr. Ickes is not
1 regulation to govern the substantive content of a communication in a way that addresses the needs
2 of a wide range of individuals with varying degrees of cognitive challenges.
3 Finally, UC Law’s interpretation of § 35.160 is sound in light of 28 C.F.R. § 36.303, a
4 similar regulation but one that applies to public accommodations instead of public entities.
5 (Section 36.303 is located in Part 36, which governs public accommodations; § 35.160 is located
6 in Part 35, which governs public entities.) Section 36.303 provides in relevant part as follows:
7 (a) General. A public accommodation shall take those steps that
may be necessary to ensure that no individual with a
8 disability is excluded, denied services, segregated or
otherwise treated differently than other individuals because
9 of the absence of auxiliary aids and services, unless the
public accommodation can demonstrate that taking those
10 steps would fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or
11 accommodations being offered or would result in an undue
burden, i.e., significant difficulty or expense.
12
(b) Examples. The term “auxiliary aids and services” includes –
13
(1) Qualified interpreters on-site or through video remote
14 interpreting (VRI) services; notetakers; real-time
computer-aided transcription services; written
15 materials; exchange of written notes; telephone
handset amplifiers; assistive listening devices;
16 assistive listening systems; telephones compatible
with hearing aids; closed caption decoders; open and
17 closed captioning, including real-time captioning;
voice, text, and video-based telecommunications
18 products and systems, including text telephones
(TTYs), videophones, and captioned telephones, or
19 equally effective telecommunications devices;
videotext displays; accessible electronic and
20 information technology; or other effective methods of
making aurally delivered information available to
21 individuals who are deaf or hard of hearing;
22 (2) Qualified readers; taped texts; audio recordings;
Brailled materials and displays; screen reader
23 software; magnification software; optical readers;
secondary auditory programs (SAP); large print
24 materials; accessible electronic and information
technology; or other effective methods of making
25 visually delivered materials available to individuals
who are blind or have low vision;
26
(3) Acquisition or modification of equipment or devices;
27 and
1 (c) Effective communication.
2 (1) A public accommodation shall furnish
appropriate auxiliary aids and services where
3 necessary to ensure effective communication with
individuals with disabilities. This includes an
4 obligation to provide effective communication to
companions who are individuals with disabilities.
5
28 C.F.R. § 36.303 (emphasis added). The focus again is on addressing barriers to
6
communications with individuals who have sensory challenges.
7
Because the regulations on which Mr. Ickes rely are not applicable to his asserted
8
disabilities, his effective communication claim fails.
9
2. UC Law’s Policies
10
Because the Court agrees with UC Law’s interpretation, its analysis need go no further. As
11
noted above, Mr. Ickes has made no contention that he needed an auxiliary aid or service in order
12
to understand UC Law’s policies. Rather, his position is that UC Law’s policies as written are
13
confusing or not understandable to people who have disabilities such as his.
14
But even if the Court were to adopt a broader interpretation of § 35.160, more along the
15
lines of Mr. Ickes interpretation, he would fare no better. The two policies Mr. Ickes challenges
16
are not confusing on their face and Mr. Ickes has failed to explain why a person with a cognitive
17
disability such as his could not understand the policies.
18
For example, Mr. Ickes asserts that he could only ask for an accommodation at the
19
beginning of a semester because the DRP website informed students that they
20
can contact the Disability Resource Program via email or call DRP
21 . . . before or at the very beginning of the semester to initiate this
process and for timely consideration of classroom-based
22 accommodations. In order to provide accommodations that require
faculty notification or special arrangements, the intake process
23 should be completed before the first day of class.
24 FAC, Ex. 26 (emphasis in original). But the word “can” is permissive in nature; the DRP website
25 does not use any mandatory term such as “must” or “required.” As for the term “should,” it is
26 simply exhortatory. Nothing about the language above suggests that the only time a student can
27 ask for an accommodation is before or at the beginning of the semester. Indeed, it would defy
1 position, if a student were to break their leg in the middle of a semester, they still could not ask for
2 any accommodation. Finally, as a practical matter, it makes sense that students were given a
3 deadline so that accommodations would be ready before the semester started. That is the plain
4 purpose of the text.
5 As for Academic Regulation § 1502, Mr. Ickes argues that it compels a student to be silent
6 about any disability because it specifies that, to be readmitted, a student must show “there existed
7 extenuating circumstances beyond the petitioner’s control (including, but not limited to, personal
8 illness or death or serious illness of a friend or family member)” and that those “circumstances are
9 not likely to continue to affect the petitioner’s ability to achieve . . . .” Mr. Ickes maintains that,
10 because his disability is always with him – i.e., it will continue – he could not mention his
11 disability. But Mr. Ickes ignores that the criteria here is that circumstances are not likely to
12 continue to affect the ability to achieve. Mr. Ickes has failed to explain why he could not have
13 argued to UC Law, at the time of his petition for readmission, that, if he were provided
14 accommodations, then the extenuating circumstances (the flaring up of his symptoms) would not
15 continue to affect his ability to achieve.2
16 Moreover, any claim by Mr. Ickes that his disability caused him to interpret the
17 readmission policy is severely undermined by his declaration that he submitted in conjunction
18 with his preliminary injunction motion. He states in that declaration that he traveled home to
19 discuss the situation with his parents and that, as a group, “[they] agreed that under the elements of
20 § 1502, [he] would draft a petition and discuss the death of [his] friend.” Docket No. 28-1 (Ickes
21 Decl. ¶ 34). This suggests his interpretation was a reasoned, collaborative decision made with the
22 advice of his family, rather than an outcome of his cognitive disability – or at least that § 1502, if
23 unclear, is unclear to both nondisabled and disabled persons alike. Moreover, as this Court
24 previously noted, Mr. Ickes’s ability to comprehend the text of the policy is informed by the fact
25
2 Notably, at the preliminary injunction hearing, Mr. Ickes admitted that he has received
26
accommodations in the past (whether formal or informal) which allowed him to succeed. Further,
asserting his condition was temporary would have been consistent with his original application for
27
admission which stated his childhood Tourette’s syndrome had faded into adulthood, but then
1 that he was a law student who successfully gained admission into UC Law.
2 D. Futility
3 Based on the Court’s analysis above, both Mr. Ickes’s accommodation and effective
4 communication claims fail as a matter of law. The only issue remaining is whether Mr. Ickes
5 should be allowed to amend. The Court declines to give leave to amend.
6 First, Mr. Ickes already amended his complaint once after the Court gave its views on the
7 merits of his case in conjunction with his motion for a TRO.
8 Second, Mr. Ickes has, since the adjudication of the TRO motion, adjusted his theories
9 several times in papers filed with the Court, but none of those theories is legally viable.
10 Third, to the extent Mr. Ickes suggests he could plead a viable claim by incorporating
11 allegations about the DOJ Web Accessibility Guidance (WCAG 2.1 Level AA), that guidance –
12 similar to the regulations he cited on “effective communication” – is not on point. It addresses the
13 needs of individuals with sensory disabilities. As noted on ADA.gov, a website maintained by
14 DOJ:
15 This rule sets a specific technical standard that state and local
governments must follow to meet their existing obligations under
16 Title II of the ADA for web and mobile app accessibility.
17 WCAG, the Web Content Accessibility Guidelines, is a set of
guidelines that say what is needed for web accessibility, such as
18 requirements for captions for videos. . . .
19 https://www.ada.gov/resources/2024-03-08-web-rule/#the-reasons-the-department-set-specific-
20 requirements-for-web-and-mobile-app-accessibility (last visited Dec. 26, 2025) (emphasis added).
21 Fourth, to the extent Mr. Ickes cites to DOJ enforcement actions, none cited by Mr. Ickes
22 suggests that a public entity or entity that receives federal funding has an obligation to make
23 content on, e.g., a website clear to persons with cognitive disabilities. For example, the DOJ
24 settlement involving Marriott involved a purported failure to provide necessary information (i.e.,
25 the availability of accessible rooms), which prevented guests from making reservations. See
26 https://www.justice.gov/usao-co/pr/marriott-international-agrees-address-barriers-making-
27 reservations-accessible-rooms (last visited Dec. 26, 2025). That is not the situation before the
1 interpretation of that information, not its absence.
2 Finally, although Mr. Ickes has suggested in his pleadings that UC Law retaliated against
3 him after he sent a letter asserting that Academic Regulation § 1502 is discriminatory (e.g., by
4 || locking him out of his apartment building, and directly contacting him, rather than his lawyer, to
5 threaten immediate collection of his loans), he has never asked for leave to assert a retaliation
6 || claim against the school. Furthermore, while there is some temporal proximity between Mr.
7 || Ickes’s sending of the letter complaining about § 1502 and the latter events, the alleged causal
8 connection is implausible given that he had already been disqualified and the school year was over
9 || —ie., his badge being deactivated and the call for payment on the loans was tied to those events
10 and not to his letter asserting discrimination.
11 Il. CONCLUSION
12 For the foregoing reasons, the Court grants UC Law’s motion to dismiss with prejudice.
13 The Court directs the Clerk of the Court to enter a final judgment in accordance with this
14 || decision and close the file in this case.
15 This order disposes of Docket No. 34.
16
17 IT IS SO ORDERED.
19 Dated: December 27, 2025
21
E .
22 United States District Judge
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