UNIVERSITY COUNCIL MEETING Provide equally effective access to programs, benefits and services for qualified individuals with disabilities in the most integrated manner possible

34 CFR 104 & 28 CFR 35

The First 4,500 Years of Disability Policy

• A 5000 year old clay tablet outlines the law of Ur-Nammu, king of the of Ur specifying compensation for various injuries to workers • 4000 years ago the code of Hammurabi provided a similar list of compensations for specific injuries causing permanent impairments.

• In medieval Europe the doctrine of noblesse oblige; owed care to his weaker, injured or impaired subjects . Louis IX of France founded a hospice for the Blind about 800 years ago. Residents wore uniforms that identified them as having a genuine disability and royal license to beg. • Since the Industrial Revolution we can see this same perspective motivating laws surrounding workers compensation, social security, welfare and quotas • These social conventions and laws are common across cultures and history; typically providing protections or compensation based on impairment (the loss of discrete function) without considering disability (the loss of social status and opportunity) are considered one in the same. 2

A Change In Perspective

“Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Justice William J. Brennan, Arline v. Nassau County, 1987 3

The Range of the ADA Law As It Applies to the University of Toledo

• Buildings and facilities • Materials, supplies, goods and services • Academic accommodations for students with disabilities • Course content delivered in class • Online course content • Desktop software • UT websites aimed toward the external community • UT websites aimed toward students, faculty, and staff • Accessible working environment for UT employees • Promote environment of diversity, inclusion, and equal access • Accessible environment at hospital and clinics

Context

• Pre 1964 – Duty Orientation • 1964 – Architectural & Transportation Barrier Removal Act • 1973 - Section 504 of the Rehabilitation Act.

• 1975 – PL 94-142 (IDEA) • • 1977 - Section 504 Regulations

1986 – Section 508 (technology accessibility)

• 1990 – ADA • 2009 – ADA Amendments Act 5

Basic Civil Rights Objective of Section 504 and the ADA

Full participation in social, political and economic activities by: • Ending the segregation and isolation of persons with disabilities • Securing equal opportunities • Ensuring equitable treatment • Fostering independence 6

Justice Ruth Bader Ginsburg, Tennessee v. Lane “…Congress understood in shaping the ADA, it would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation.”

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It is the Right Thing to do

Why Provide Access?

It is Important for Diversity It’s the Law

An Accommodation Is

a modification to policy, procedure, practice, or the environment; the provision of tools, technology, or services that partially mitigate the impact of a disability allowing the individual to participate in an integrated manner.

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Section 504 and the ADA should be welcomed for the opportunities they offer to postsecondary education for rewarding self-examination. No other set of laws so entreats academia to take its own temperature, examine its traditions, and thoughtfully deliberate about which of its standards are essential and which are merely unexamined habits.”

Making Accommodations: The Legal World of Students with Disabilities By Paul D. Grossman Academe; November-December 2001, Volume 87, Number 6 http://www.aaup.org/publications/Academe/2001/01nd/01ndtoc.htm

When Are Accommodations Reasonable?

• • • • •

Addresses an impact of the disability

– Manner, Condition & Duration not outcome

Does not create a fundamental alteration

– Comparable experience, performance or evaluation

Does not create a “Direct Threat” to others

– Likely, imminent, significant & can not be substantially reduced with accommodations

Does not create an undue burden Administrative, Financial

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Deference for Academic Decisions

• Academic institutions, making academic decisions, within their areas of expertise, will receive substantial deference from the courts and enforcement agencies • Generally, faculty have substantial expertise in academic and technical requirements but not on accommodations

Earning Deference

• However, the deference is earned through adherence to a “diligent” consideration of the request and “alternative means” to achieving the fundamental program objective, resulting in a “rationally justifiable conclusion"

Wong v. Regents of California) Wynne v. Tufts, Guckenberger v. Boston University,

• Mere reliance upon tradition or existing rules may well not be a sufficient justification for refusing to implement a requested accommodation (

Southeastern v. Davis; PGA v. Martin)

Compliance or non-compliance is a shared responsibility

• It is an institutional obligation – Administrators and Staff – Tenured Faculty – Adjunct faculty/visiting professors/teaching assistants – Grounds-keepers and cleaning staff – Police & security services – Work/study students – Other students (hostile environment) – Performance/game ushers

Current Cases & Issues

• Information & Communications Technology – SCSTCS, Louisiana State • Curriculum Materials – Berkeley; TEACH, AIM Commission • Residence Life • University of Nebraska at Kearny • Accommodations – Argenyi v. Creighton University Medical School • Employment – Verizon

David L. Cutri, University of Toledo, Internal Audit and Compliance Department Director of Internal Audit and Chief Compliance Officer Instructor, UT College Of Business and Innovation Katrina Nottke:

Interim ADA Compliance Officer

[email protected]

(419) 530-8718

Questions To Guide Policy

• Why provide access to higher education for students with disabilities?

• Who do individuals inform that they have disability related needs or complaints?

• Who evaluates requests to determine if there is a disability and a related need for accommodation?

• Who determines the reasonableness of a requested accommodations?

• Who resolves disagreements concerning appropriate accommodations?

• Who provides the funding for auxiliary aids and accommodation?

Characteristics of Lawful Technical Standards

• It pertains to the essential (core) rather than the tangential aspects of the program • It is an inquiry into a skill or ability rather than a medical condition.

• The ability to perform the skill directly relates to academic or programmatic success • It pertains to the safe performance of the skills the program seeks to develop • In a licensing program, it is directly related to skills necessary to obtain the license

Direct Threat

•

A “direct threat” means “a significant risk of substantial harm to the health and safety of others (or self in employment) that cannot be eliminated or reduced by reasonable accommodation--A significant risk is a high, and not just a slightly increased, risk.

Direct Threat (continued)

• Individualized Analysis • Reasonable medical judgment relying on current medical knowledge and/or the best available objective evidence (Echazabal v. Chevron) • Deference to the treating physician

Current Issues

Current Engagement with University Council/Faculty Senate (ADA)

• Note-Taking Protocol • Technology Accessibility Policy • Student Advocacy Memo

UT ADA Compliance Committee

• Katrina Nottke • Howard Hillard • Toni Howard • Matt Junod Chair, Interim ADA Compliance Officer Purchasing of Accessible Supplies Academic Accommodations • Dan Klett • Terrie Kovacs • Kevin West Information Technology and Internally-Facing Web Applications Facilities Accommodations Employee Accommodations • Jonee Lee • Vicki Riddick Online Course Content Patient Accommodations • Kathleen Walsh Center for Creative Instruction and Externally-Facing Web Applications Inclusion and Institutional Diversity

UT ADA Compliance Committee

We request the counsel, support, and advocacy from of the UT faculty and University Council in order to meet our obligations under the ADA law in the most operationally-effective manner possible.

Please contact David Cutri directly should members of the faculty have an interest in serving on the ADA Compliance Committee.

Thank you for your time today!

Questions?