Transcript Recent Cases - Home | AHEAD: Association on Higher

CASELAW UPDATE
Jeanne M. Kincaid
Drummond Woodsum
Documentation Issues
2
Drummond Woodsum
Tip
3

Colleges and universities may wish to review
existing documentation guidelines and procedures in
light of the ADA Amendments Act of 2008
Drummond Woodsum
Too Strict
4

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
It’s All About Documentation
5

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
You Have To Ask!
6

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
Method of Providing Notes
8

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
Method Okay
9

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
Notetaking Alternative Effective?
10



Court refuses to dismiss claim that law school failed
to provide effective note-taking assistance
When college allegedly 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
Weekend Exams
11

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
Best Practices
12

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
Asthma
13

Assuming asthma is a disability, College reasonably
accommodated student by having Tavern create a
smoke free environment
 College
of St. Rose
Drummond Woodsum
Course Viability Rules
14


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
How Many Extensions?
15


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
Is It Too Late To Sue?
16

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
A Problem with Take-Home Exams
17


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
Is There a Second Chance Doctrine?
18

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
Less Is Not Better
19


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
What OCR Did
20


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
No Good Deed . . .
21

Professor was accommodating rather than
discriminating by suggesting that student take an
anthropology course via independent study
 College
of DuPage
Drummond Woodsum
ADA Extends to the Mouth
22

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
Course Substitution
23

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
Thou Shalt Not Steal
25

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
Thou Shalt Not Choke
26

College did not unlawfully discriminate by
suspending student for one year after he attempted
to choke his aide
 Alamance
Community College
Drummond Woodsum
Thou Shalt Not Threaten to Kill
27

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
Thou Shalt Not Lie
28

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
No Delay For Misconduct
29

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 disabilityrelated information since it would not justify his actions
 Tylicki
v. St. Onge
Drummond Woodsum
I Need a Break
30

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
No Discrimination
32

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
No Affirmative Obligation
33

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
Overseas Travel
34

OCR did not fault College for inquiring whether
student with admitted health problems should
participate in clinic located in remote area of
Honduras
 College
 Husson
never denied her participation
College
Drummond Woodsum
No Dough
35

Title III of the ADA does not authorize monetary
damage awards
 College
of St. Rose
Drummond Woodsum
Maybe Some Dough
36

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
Some Really Big Dough
37

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
Basis of Claim
38


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
No Failure to Accommodate
39

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
Standard
40

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
Physical Accessibility
41


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
Grievance Procedures
42



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
Procedure Flaws
43

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
What Is a Grievance
44

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