CaseLaw Update

1. CaseLaw Update Jeanne M. Kincaid Drummond Woodsum

2. Documentation Issues Drummond Woodsum

3. Tip • Colleges and universities may wish to review existing documentation guidelines and procedures in light of the ADA Amendments Act of 2008 Drummond Woodsum

4. Too Strict • OCR faulted college for imposing too strict criteria • Should not be unduly burdensome for students • May only request minimum amount necessary to establish disability and/or need for requested accommodation • Should be clear to students so that they are aware of what is necessary • Central New Mexico Community College Drummond Woodsum

5. It’s All About Documentation • College is permitted to require medical evidence in support of student’s accommodation request • College may also obtain its own professional determination • Fayatteville Technical Community College Drummond Woodsum

6. You Have To Ask! • Without deciding that student’s attendance should be excused for disability-related reasons • OCR finds that student failed to show he had requested same • Onondaga Community College Drummond Woodsum

7. Reasonable Accommodations Revisited Drummond Woodsum

8. Method of Providing Notes • OCR took no issue with college’s process of supplying notes to student • Recruit volunteers from class • If not available, tape-record lectures and seek copy of instructor’s notes or faculty assistance • Discontinue service if student fails to attend class • Here, student offered no evidence that he had notified disability office that quality of notetaking was insufficient • Onondaga Community College Drummond Woodsum

9. Method Okay • But delivery not • When student notified disability office that notetaking assistance was not provided, ball dropped between advisor and disability office • San Diego State University Drummond Woodsum

10. Notetaking Alternative Effective? • Court refuses to dismiss claim that law school failed to provide effective note-taking assistance • When collegeallegedly had difficulty locating notetakers, it offered transcribed lectures • Court concludes that student has a right to prove that lectures were not transcribed at all and/or in a timely manner • Di Lella v. University of the District of Columbia David A. Clarke School of Law Drummond Woodsum

11. Weekend Exams • What to do when the disability office is only open during the week? • OCR took no issue with faculty and student agreeing to alternative testing arrangements, even if such resulted in student foregoing certain accommodations • Here, test location and time of exam • Broward Community College Drummond Woodsum

12. Best Practices • Disability office had very clear written procedures • Which may also hurt you if not followed • Disability office kept detailed logs • Faculty member had student sign statement agreeing to deviation from accommodation letter • Broward Community College Drummond Woodsum

13. Asthma • Assuming asthma is a disability, College reasonably accommodated student by having Tavern create a smoke free environment • College of St. Rose Drummond Woodsum

14. Course Viability Rules • Look out! • Jury faults university for refusing to modify its course viability rules for Ph.D. candidate with lung condition • But he gets nothing for failing to file his case in a timely manner • Long v. Howard University Drummond Woodsum

15. How Many Extensions? • University refused to grant sixth extension for Ph.D. candidate to complete his dissertation • Court dismisses suit based on statute of limitations • Quinn v. University of Oklahoma Drummond Woodsum

16. Is It Too Late To Sue? • Although court dismisses most of former student’s accessibility claims for failing to timely sue • Her graduation claim can move forward • Muha v. Rutgers University Drummond Woodsum

17. A Problem with Take-Home Exams • Cheating and plagiarism • Court upholds one year suspension as there cannot be a disability-related reason to overturn decision • Which the court must accord deference • Di Lella v. University of the District of Columbia David A. Clarke School of Law Drummond Woodsum

18. Is There a Second Chance Doctrine? • Does the ADA require a university to give a student a second chance as a reasonable accommodation, after s/he learns of a potentially disabling condition? • No • Brown v. University of Cincinnati • Yes • Singh v. George Washington University Drummond Woodsum

19. Less Is Not Better • OCR faulted college for using in-class transcription service, based on a “meaning for meaning system” rather than word-for-word real-time captioning she requested and was supported by documentation • Factors: • Severity of condition • Course difficulty • Highline Community College Drummond Woodsum

20. What OCR Did • Compared audiotapes of lectures with the transcripts! • Finding concepts not covered in the service and numerous inaccuracies; lack of questions and answers; and lack of examples used by instructor • Highline Community College Drummond Woodsum

21. No Good Deed . . . • Professor was accommodating rather than discriminating by suggesting that student take an anthropology course via independent study • College of DuPage Drummond Woodsum

22. ADA Extends to the Mouth • College did not discriminate against student with diabetes for refusing to waive its requirement that dental hygienist students serve as patients for fellow students absent documentation • Doctor’s order was limited to multiple students, and college accommodated that request • Fayatteville Technical Community College Drummond Woodsum

23. Course Substitution • Court found no discrimination against student with Asperger’s Syndrome when: • Student successfully completed two semesters in Spanish • University had granted a course substitution by authorizing him to take beginning French • University refused second request, after student had cheated on a French exam • Had student not withdrawn from French he would have been dismissed as he had plagiarized in another course • Strahl v. Trustees of Purdue University Drummond Woodsum

24. The Ten Commandments of Conduct Drummond Woodsum

25. Thou Shalt Not Steal • Graduate school psychology student failed to establish that the College discriminated against him for giving him a failing grade based on two instructors’ assessments that student had plagiarized • College of St. Rose Drummond Woodsum

26. Thou Shalt Not Choke • College did not unlawfully discriminate by suspending student for one year after he attempted to choke his aide • Alamance Community College Drummond Woodsum

27. Thou Shalt Not Threaten to Kill • University did not retaliate by barring student from campus after OCR advised that student reported wanting to “put a bullet” to the head of a professor • Mershon v. St. Louis University Drummond Woodsum

28. Thou Shalt Not Lie • Court upholds dismissal under State law of medical student who falsified documents pertaining to his clinical rotations and lied during first disciplinary hearing • Student did not identify himself as having Tourette’s Syndrome and OCD until second hearing • Even if he had, college has right to set ethical and technical standards; disability misconduct no defense • Batt v. University of Vermont Drummond Woodsum

29. No Delay For Misconduct • Institutions of higher education may discipline students for misconduct even when resulting from a mental health impairment • College was under no obligation to postpone disciplinary hearing while student gathered disability-related information since it would not justify his actions • Tylicki v. St. Onge Drummond Woodsum

30. I Need a Break • OCR rejects student’s contention that had the College afforded the student a leave of absence to address his post-traumatic stress disorder, he would not have acted in the manner that led to his suspension • Student was only diagnosed with condition following his suspension • Northwestern Business College Drummond Woodsum

31. Discrimination: To Be Or Not To Be Drummond Woodsum

32. No Discrimination • Delay in placing medical assistant who could only lift 5 pounds and work 2-4 hours daily was not discriminatory • But student simultaneously worked an 8 hour shift in a TV control room on numerous occasions without accommodation • Pikes Peak Community College Drummond Woodsum

33. No Affirmative Obligation • Even if student’s disability prevented him from working, college was not obligated to extend maximum amount of loan as an accommodation • Riverside Community College Drummond Woodsum

34. Overseas Travel • OCR did not fault College for inquiring whether student with admitted health problems should participate in clinic located in remote area of Honduras • College never denied her participation • Husson College Drummond Woodsum

35. No Dough • Title III of the ADA does not authorize monetary damage awards • College of St. Rose Drummond Woodsum

36. Maybe Some Dough • The Rehabilitation Act may authorize monetary damage awards upon a showing of deliberate indifference to a student’s rights guaranteed under the law • College of St. Rose Drummond Woodsum

37. Some Really Big Dough • Although Court refuses to overturn jury verdict against the University of New York at Buffalo, court reduces the award of $601,000 to $100,000 (or granting the university a new trial) concluding that jury’s verdict was based on sympathy and the amount of the award “shocks the judicial conscience” • Bayon v. State University of New York Drummond Woodsum

38. Basis of Claim • Student filed multiple complaints with OCR • Jury did not believe that actions taken by university, which ultimately resulted in no financial aid and denial of readmission were a pretext for discrimination Drummond Woodsum

39. No Failure to Accommodate • Former student failed to carry his burden of demonstrating that university failed to accommodate his physical and visual impairments • Conceding that the university had provided some notetakers, extended time, a tape recorder and enlarged materials • Mershon v. St. Louis University Drummond Woodsum

40. Standard • Student must show a failure to accommodate • And that the provision of said accommodations would render him otherwise qualified • Mershon v. St. Louis University Drummond Woodsum

41. Physical Accessibility • Increasing litigation and agency complaints • Which agencies? • HUD – based on Fair Housing Act • OCR – based on Rehabilitation Act and ADA • DOJ – based on all three Acts • Be proactive! Drummond Woodsum

42. Grievance Procedures • Notice to students and employees where and with whom to file • Address full range of discriminatory conduct • Provide adequate, reliable, impartial investigation • Opportunity to present witnesses and evidence • Include reasonably prompt timeframes • Notify parties of outcome • Informal resolution as a step is permissible • Harvard University Drummond Woodsum

43. Procedure Flaws • Course catalog and website limited grievances to academic adjustment disputes • Must cover full range of potential discriminatory actions • One of the designated 504 officers was unaware of the extent of his responsibilities • Informal resolution procedures unclear • Grievance was not promptly investigated • Harvard University Drummond Woodsum

44. What Is a Grievance • Student wrote to president and mentioned disability-related matters • That was enough • Tips: • Be clear as to where to file • Be cautious: often these concerns are raised at the President’s level • Consider a statute of limitations as part of the process – here filed more than a year later • Harvard University Drummond Woodsum