There are lessons to be learned about documentation standards and procedures requests in the latest legal battle between the federal government and a testing entity.
On October 18, 2012, a federal judge permitted the Department of Justice (DOJ) to intervene in a lawsuit filed against the Law School Admissions Council (LSAC). It is alleged that the Council’s policies, practices and procedures regarding the administration of the Law School Admissions Test (LSAT) discriminates against applicants with disabilities. (See The Department of Fair Employment and Housing v. Law School Admission Council, No. CV 12-1830-EMC).The alleged violations of Title III include:
With respect to documentation, DOJ takes exception to the following practices and procedures used by the Council:
DOJ specifically noted that applicants with extensive histories regarding both the diagnosis of a disability, as well as, the provision of accommodations in similar circumstances were frequently denied accommodations. It was also noted that, in addition to using evaluation standards for reviewing documentation submissions that are unclear, the Council’s denial letters are “cursory” and fail to give applicants a clear understanding of what is missing or what needs to be done to correct deficiencies in order to obtain test accommodations. DOJ also remarked upon the enormous expense incurred by applicants in order to meet the Council’s three – five year ago of documentation requirement. DOJ argues that the LSAT through its policies, practices and procedures discriminates against individuals with disabilities by “failing to administer the LSAT in an accessible manner” and utilizing a “flagging policy”.
DOJ’s brief includes detailed descriptions of the experiences of eight applicants. The complete brief can be founded on the Department of Justice’s ADA site, www.ada.gov.
With the ongoing and enormous attention enforcement agencies are devoting to access to emerging technology, it is easy to assume that facilities access in no longer a significant compliance concern for colleges and universities. However, one need only examine recent OCR rulings and court decisions addressing charges of denial of facility access to discover that postsecondary institutions are still guilty of violating what many would assert are basic and clear compliance mandates. The Department of Justice’s 2010 ADA Standards for Accessible Design (effective March 15, 2012) coupled with the upcoming revision to the Section 504 regulations to formally adopt the 2010 Title II ADA standards in lieu of Uniform Federal Accessibility Standards (UFAS) will likely spark renewed interest in the accessibility and usability of college and university facilities. Therefore, now would be a good time to take a look at the compliance areas that seem to present the greatest challenges for colleges and universities, as reflected in recent agency rulings and judicial decisions. The next several editions of Salome Says will be devoted to facilities access issues beginning with Parking and Accessible Paths of Travel.
The majority of parking issues arise in the following areas: the number and size of accessible spaces; signage; the enforcement of parking restrictions; and the path of travel from the parking area to adjacent facilities. The cases reviewed reflect that institutions consistently fail to ensure that parking areas contain a) the minimum number of accessible spaces required pursuant to ADAAG and/or UFAS standards, as well as b) spaces 96 inches wide that are necessary to accommodate vans (See University of Maryland, No. 03102046 (OCR 06/2010) and University of Mississippi, No. 06102080 (OCR 09/2010); and Gadsden State Community College, No. 07-09-2006 (01/2010)).
The signage cases generally involve the symbols identifying accessible spaces being mounted on the ground rather than at the required height of at least 60 inches or otherwise being obstructed. (Remington College, No. 15-10-2107 (OCR 12/2010) and Clayton State University, No. 04-09-2088 (OCR 09/2009)) Enforcement cases involved institutions failing to take action against those parking in spaces without proper credentials, as well as, maintenance staff that either obstruct access to spaces during snow removal or fail to keep spaces clear during winter weather. (See University of Mississippi, supra and Remington College, supra).
It is important that routes from designated accessible parking spaces be “located closest to the nearest accessible entrance on an accessible route.” (UFAS 4.5.1). The surface of accessible routes must be stable, firm, slip-resistant and not impede the travel of those with physical disabilities. Additionally, accessible entrances to building should be clearly identified and marked with signage directing individuals from non-accessible entrances to the accessible entrance. Generally path of travel cases involve:
(See Remington College, supra; Gadsden State Community College, No. 07-09-2006 (OCR 2010); Clayton State University, supra and Our Lady of the Lake University, No. 06082171 (OCR 2009)). However, the most significant recent cases involving path of travel violations, raise some unique issues.
In Montgomery College (Rockville), et.al, No. DKC 09-2278 (D. Md. 2011), a student who had difficulty getting to her classes because the closest accessible parking was eliminated by construction, was injured walking from her class when the College refused to provide transportation back to her vehicle. The court ruled that the College’s refusal to address the obvious access problems caused by the construction meant that the College was at risk of being found to have “intentionally violated the ADA and the Rehabilitation Act by demonstrating a deliberate indifference when they had notice of the potential risk of their decision… .” The court ruled that the College arguably had a duty to accommodate the student’s known disability, i.e., her difficulty walking, by providing her transportation.
In a second case, Shasta-Tehama-Trinity Joint Community College District, No. 09-09-2068 (OCR 2009), the College moved all accessible spaces following the recommendation of a consultant. As a result, a student with a disability, who previously had easy access to an adjacent walkway leading to her destination, was denied access because the walking distance from the new placement of accessible spaces was doubled and too far for her to walk. OCR ruled that the College’s obligation under the law was not satisfied merely because the new spaces were arguably ADAAG-compliant and additional steps were necessary. OCR specifically ruled that “[I]n any individual case, in order to achieve program access, absent a fundamental alteration or undue burden defense, something more or different from ADAAG compliance may be necessary for a recipient to accommodate a particular disabled person”. In this particular case, OCR suggested that the College either reserve a space near the specific entrance for the student or work out another mutually agreeable alternative with her.
NOTE: For guidance in developing a plan for evaluating facilities access, subscribers to DisabilityDirectResponse.com should consult the Assessment Blueprint in the Compliance Library.
What should be the response to accommodation requests made by parents on behalf of their son or daughter?
Can parents request accommodations on their son or daughter’s behalf without the student’s agreement and/or participation?
In Brown Mackie College, 03-04-2084 (OCR 12/10/2004), a parent requested accommodations on his son’s behalf but without his son’s active involvement. In that case, OCR ruled that the obligation of the institution to act was not triggered because the student failed to initiate the process by providing notice of his need for academic adjustments and making a specific request for accommodations. OCR has consistently ruled that it is the student’s responsibility to request academic adjustments, to adhere to the institution’s accommodation procedures and to actively participate in the process. The demands of parents do not obligate institutions to act if students fail to satisfy that responsibility. (See Brown Mackie College, supra and Texas Southern University, No. 06-02-2078 (OCR 12/06/2002)).
Therefore, if an institution is not obligated to act when a student simply never communicated a need for accommodations to the proper officials; it stands to reason that if the student objects to, denies the need for or refuses offers of accommodations the parents’ assertions that the institution must or should provide accommodations cannot trigger an obligation to act on the part of the institution. Institutions are not permitted to unilaterally act with respect to the provision of accommodations. They cannot require students to accept academic adjustments, auxiliary aids and services when students have not requested such. Northwestern Michigan College, No. 15-02-2047 (OCR 02/10/2003)).
Can parents use the fact that their son or daughter signed a written consent under FERPA to provide them information regarding their children’s educational services to insist that they are entitled to participate in all meetings to determine what accommodations are provided and/or to directly interact with faculty?
OCR has consistently ruled that institutions can adhere to policies and procedures that specifically require that students initiate the process, be active participants in the accommodation process, and maintain direct interactions with responsible institution officials. (See Doane College, No. 07092063 (OCR 2009), University of Notre Dame, No. 05-04-2113 (OCR 2004) and Brown Mackie College, 30 NDLR 207 (OCR 2004)) It is appropriate for institutions to insist that the individual who is enrolled, i.e., the student, be the frontline in these matters. Additionally, asserts by parents that their son or daughter cannot take responsibility for managing the accommodation process raises issues regarding the qualified status of the student.
It is also important to remember that written consent provided by students under FERPA only entitles parents to information regarding their sons and daughters educational program. Such consent does not entitle parents to participate in the process. Further, a grant of consent under FERPA only permit institutions to provide information to parents it does not require action on the part of institutions.
Subscribers to DisabilityDirectResponse.com can view a full discussion of best practices and a summary of pertinent cases and agency rulings on the site in the Compliance Library under Parental Involvement.
Pursuant to 34 C.F.R. Sec. 104.22(f) colleges and universities are responsible for implementing policies and procedures “to ensure that individuals with disabilities can obtain information regarding the existence and location of services, activities and facilities that are accessible to and usable by them. The term ‘activities’ encompasses all extracurricular offerings and events that take place at [colleges and universities], such as theatrical performances, concerts, lectures, athletic events, student organizational meetings, or any other activity, whether sponsored by a department, an approved student organization, or a residential house.”
Processes and procedures that merely focus on assisting sponsoring entities in fulfilling the responsibility to provide access as events are planned and organized are not sufficient. There also must be processes and procedures directed towards advising students, prospective audience members and participants regarding accessibility of the campus as well as specific events, activities, performances, etc… . Individuals should be provided information concerning accessible locations, activities and facilities. Additionally, notice should be provided concerning the offices and/or individuals who should be contacted regarding accommodation needs.
Procedures should be adopted to a) disseminate and make readily available accessibility information to students, as well as, members of the public seeking to attend events and activities; and b) ensure that sponsoring entities identify a contact person for providing accessibility information and responding to accommodation requests. It is not enough for institutions to publish such procedures. Institutions must actively enforce them to ensure that they are uniformly followed.
The fact that the institution has a ADA or Disability Coordinator who assumes responsibility for being a source for accessibility information and/or arranges for accommodations when an individual makes a specific request does not satisfy the institution’s compliance obligation. OCR has rule that the availability of one person does not satisfy the statutory obligation to put in place “a procedure ensuring that persons with disabilities can obtaining information regarding the existence and location of facilities that are accessible.”
(See Harvard University, No. 01-03-2053 (OCR 2006)).