One of the difficulties that institutions have in properly managing faculty participation in the accommodation process is the failure to provide direction, support and guidance to faculty members and adjuncts regarding both their responsibility and the rights of students with disabilities. To varying degrees many colleges and universities are guilty of not striking the necessary balance between traditional academic freedom protections and federal compliance mandates. Institutions cannot leave the matter of whether and to what degree students with disabilities are accommodated solely to the discretion of individual faculty members. OCR has ruled that postsecondary institutions are required “… to take steps as necessary to ensure that qualified students with disabilities are not subjected to discrimination because of the absence of educational auxiliary aids. University of Guam, No. 10072030 (OCR 2010)
There are a number of recent OCR rulings and court decisions that focus on the dynamics of the faculty-student relationship. For example:
Halpern v. West Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012) – The court responded to the assertions of a student with ADHD and an anxiety disorder that the University was required to accommodate his difficulty with meeting the professional standards adopted by the Medical School. The student’s first two academic years were marked by repeated instances of unprofessionalism (e.g., abusive behavior; lack of interpersonal skills; unapproved absences; resistance to feedback; and lack of truthfulness). When confronted regarding his behavior, the student asserted that his conduct was the result of the effects of his ADHD medication.
Following an approved medical leave to address the side effects of his medication, the student continued to exhibit unprofessional behavior. The student did not seek accommodations (test accommodations) until his third year in the program. Ultimately, in response to additional instances of unprofessionalism, the School’s academic appeals committee recommended that the student be dismissed from the program. While maintaining that he was only guilty of isolated instances of unprofessionalism, the student asserted that he should be permitted to continue in the program under a remediation plan to address his behavioral problems. The plan he proposed was that he would participate in ongoing psychiatric treatment, as well as a program for distressed physicians. He also suggested that he be placed on strict probation.
The court in upholding the School’s decision to not grant the requested accommodations made several important pronouncements. Specifically:
North v. Widener University, No. 11-6006 (E.D. pa. 2012) – A University argued that a student could not bring a complaint of being treated differently on the basis of disability because he had never officially disclosed that he had a disability. The court rejected the University’s claim by noting “[N]othing in Section 504 requires a student with a disability to provide official notification of disability in order to bring a claim for disability discrimination.” The court further noted that the fact that the student was told by a faculty member, who served as his advisor, that he should not disclosed that he had a disability because it would be “viewed as a sign of weakness and unsuitability for the program”; potentially established that “the program suffered from a culture of discrimination.”
University of Houston, No. 06112030 (OCR 2011) – A student was provided an accommodation form which listed an approved accommodation as “consider extended assignment deadlines, if necessary.” One of the professors the student presented the form to refused to sign it and expressed the opinion that the accommodation was “too general, open ended, and unreasonable.” When the student sought redress from the disability services office, he was advised by the Director that “professors … were not obligated to grant accommodations… and such a decision was to the professors’ discretion.” OCR took issue with the both the practice of permitting faculty members to make unilateral decisions concerning the accommodations students receive, as well as the fact that the University had not adopted and implemented a procedure to address situations where the disability services office and professors disagree about the accommodations to be provided students.
For a full discussion of the role of faculty in the accommodation process, join us on November 13, 2012 for the next webinar of Best Practice Series 4: Faculty Behavior: Managing Faculty Participation in the Accommodation Process.
The settlement agreement in the Penn State University case should be used as a guide by institutions addressing issues of access to technology. The significance of this settlement agreement is that it checks all of the important boxes for institutions either struggling to meet their compliance obligations or needing guidance regarding the important areas to review when assessing their compliance level. Specifically:
Lack of an institutional approach to compliance – Access to technology is an institution wide issue. It comprises all of the means and methods in which the institution employs technology in delivering it services, opportunities and benefits. Access to technology for individuals with disabilities cannot be limited to a consideration of adaptive/assistive technology offered as an academic adjustment for students with disabilities and/or the specific accommodations offered to individual employees.
The absence of accessibility based technology policies and guidance – Institutions must adopt policies and procedures that embrace the obligation to provide access to technology, in all of its uses, for individuals with disabilities. Compliance expectations, goals and requirements should be identified for all pertinent departments, offices and work units of the institution. Those policies and procedures should specifically identify those responsible for implementation, assessment and enforcement.
Adoption of meaningful action steps – Institutions must provide the necessary support and resources to achieve compliance. Such steps include employing individuals who have the necessary expertise regarding programming, as well as, the uses of adaptive and assistive technology; including accessibility strategies and needs at the planning and design of significant projects; implementing processes and procedures to achieve compliance strategies; investing the necessary resources to fund accessibility projects; and providing necessary training and guidance to pertinent program participants.
Managing third party relationships – Institutions should not enter into agreements with third parties providing for the delivery of services, programs and/or opportunities to their students, program beneficiaries and employees without investigating the degree of access afforded individuals with disabilities. It must be assured either that there is full accessibility or that alternatives means of providing access are available that would provide individuals with disabilities the ability to acquire the same information, engage in the same interactions, and enjoy the same services with substantially the same ease of use. Agreements that do not satisfy these conditions should not be entered into absence extraordinary circumstances.