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.
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.
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.