Thursday, August 10, 2000 Older Editions

Victories claimed on both sides

By Neil Fater

After attracting the interest of private schools across the region, a lawsuit against Phillips Academy by a dismissed student with attention deficit/hyperactivity disorder has been settled, with both sides claiming a victory.

The suit was brought against Phillips by former senior Nicholas Panagopoulos and his mother Nancy Axelrod, who charged that Phillips had violated the Americans with Disabilities Act by not providing enough accommodations for Panagopoulos, who has ADHD.

Phillips has agreed to pay the cost of mediation and one current-year's tuition, $25,600, in exchange for the mother and son withdrawing of all claims of damages.

Last year, a Judge Edward Harrington had denied Panagopoulos' request to graduate from Phillips, saying the school was allowed to uphold its academic standards by expelling him. He allowed the damages portion of the suit to continue to a jury trial, but urged the groups to enter mediation.

Both sides say they agreed to settle out of court on the damages portion because they were not interested

in enduring another lengthy trial.

"It seemed prudent, and it would have been very taxing to bring everyone back to court to try the case," says Sharon Britton, Phillips communications director. "I think everyone wanted to start off the academic year fresh."

"At this point I had to consider, and Nick had to consider Nick's life," says Axelrod. Panagopoulos has received a diploma from his local high school and is attending college.

Since last year's trial, Axelrod and her lawyers note that Phillips has begun "a mandatory education program for its faculty members in which ADHD is explained and discussed, so that the faculty can be more aware of, and responsive to, the symptoms and treatment."

"In a lot of respects we had really gotten what we wanted," says Hass. "We realized that Phillips had begun to pay attention to this issue."

"Money was never the major issue," says Axelrod.

"I think the point was made. The door has been opened to other kids who will be in the situation in the future. ADHD has now been accepted as something that one can take into court on the Americans with Disabilities Act," says Axelrod. "The judge indicated it's something that can be taken into court for a jury trial."

Phillips says its insurance company will handle $8,000 of the $25,600 it will pay.

"The fact that they've settled and returned money admits culpability," says Axelrod. "(Nick) didn't flunk out of school. They tossed him out because he didn't appear to be trying hard enough."

Axelrod says that's the problem with ADHD -- students who are doing their best can often appear as if they're not trying.

During the 1999 court proceedings, lawyer Marc Redlich argued that point on Panagopoulos' behalf.

However the judge wrote, in explaining his decision, that "Panagopoulos has failed to meet (Phillips) standards, not because of an inability to perform due to his ADHD, but rather because of a willful lack of effort on his part, invariably excused by a parent who indulged his lack of discipline and who failed to support the school in its efforts to assist him to do his work."

Britton says the judge's decision was the most significant element of this case, because it upheld a private school's ability to maintain "high academic standards."

She says that in the damages portion of the case, Panagopoulos was seeking an apology, a diploma, an office for disabilities on campus, one year's paid tuition, and payment of all court costs.

"What they got out of this case was, in my mind, a token to prevent the faculty from the aggravation of having to go back to court," says Britton. "I don't think their case got any better in the intervening months."

Britton says it took "one long day" of mediation for the two sides to come to an agreement.

But they clearly don't agree on what the settlement means.

"That case law will be on the books now," says Britton. "You can provide a level playing field, but you can't rig the game.

"As the judge said, it is not the realm of the courts, but the realm of the school (to set academic standards)," said Britton.

Axelrod says Phillips attempt to cast itself as a winner in the suit is "an attempt at good public relations, but the facts of the matter are different at this point."

"We are continuing to get calls from people all over the country," says Hass. "In a lot of ways this was about shining a spotlight on ADHD."

Axelrod says the case brought attention to the issue and helped "kick Phillips into the 21st century in terms of dealing with kids with learning disabilities."