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.
The summer is over and we are right back into the fray….
Here are few of the compliance issues that are raising significant concern for the coming academic year.
In the spring of this year AHEAD published revised guidelines on documentation practices (Supporting Accommodation Requests: Guidance on Documentation Practices April 2012). The need for revised guidance was explained as follows: “This revised guidance is necessitated by changes in society’s understanding of disability, the 2008 amendments to the Americans with Disabilities Act, and the updated regulations and guidance to Title II and III of the ADA.” Of significant interest, is the part of the guidelines that addresses the sources of documentation for “substantiating a student’s disability and request for particular accommodations.” The sources are presented as follows:
The clear elevation of the importance of student self-reporting coupled with the suggested lessening of the importance of external sources of documentation, including the assessment of professionals, is interesting food for thought.
Consider the above in conjunction with the following recent court decisions:
Carlson v. Carroll University, No. 09-C-551 (E.D. Wis. 2011) – The court rejected the claims of a student who challenged academic dismissal from a Physical Therapy Program. The student argued, in part, that the University was in violation because it failed to provide her accommodation related to language based developmental disorders, ADHD and a depressive disorder. During her tenure the student sought and received academic adjustments related to a diagnosis of ADD only. However, the student argued that her extensive “self-reporting” of academic struggles and difficulties put the program on notice and additional accommodations should have been offered to her on that basis.
The court in this case ruled that the student’s “self-reporting” alone was not sufficient to establish a need for additional or different accommodations. The court specifically ruled that the student has failed to meet her obligation of providing the University objective medical documentation reflecting a proper diagnosis of a learning disorder and the specific accommodations needed. The court also found acceptable the University’s policy of requiring students to provide “recent, relevant and comprehensive medical documentation of the disability and the disability’s impact on the student’s participation in a course, program, or activity.”
Argenyi v. Creighton University, No. 8:09CV341, (D.C. Nebraska 2011) – A student with a hearing impairment with cochlear implants, whose history of accommodation included using “cued speech”, hearing aids, and CART services, sought interpreters, CART services and an FM system as accommodations once enrolled in medical school. The medical school primarily offered the use of a FM system. The court ruled against the student noting, in part, that the fact that medical professionals state that a student would “benefit” from a particular accommodation does not establish that the student “needed” them. The court ruled that the student had failed to establish that he would be “effectively excluded” from the medical school if he was not provided the accommodations he requested. What is significant about the court’s position in this case is that, the student’s own expressions of need and his description of the impact on his educational experience was rejected in favor of the opinions of the medical professionals. The court went so far as to label the student’s evidence of need as merely “self- serving allegations.”
Thus, the revised AHEAD guidelines give rise to some significant compliance questions. Specifically:
Join us for Best Practices Series 4 where our first webinar will tackle this on-going Documentation Debate. We will address these and other questions concerning the rights and responsibilities of institutions as well as students concerning documentation.
The revised regulations have given rise to a number of uncomfortable questions and dilemmas. The issues in controversy include:
Subscribers to DisabilityDirectResponse will find an updated discussion of Service Animals and the revised regulations on the site. We will also be conducting a webinar entitled: The Service/Assistance Animal Question as a part of Best Practice Series 4.