A significant part of the success of an institution’s disability services program is based upon the manner in which service providers and the faculty work together to resolve difficult issues or cases where a balance must be struck between student accommodation and safeguarding academic integrity. At present, the College does not have in place a process or procedure that either establishes how such issues or cases should be resolved or ensures that the method of resolution protects the academic wellbeing of students.
During our assessment, three situations were described that illustrate that the College is vulnerable to its faculty making missteps in the manner in which they are interacting with students with disabilities that could be viewed as discriminatory. Two of the situations, involved controversies concerning the provision of testing accommodations that faculty members objected to or had difficulty with. The third situation concerned the implementation of the administrative withdrawal policy. In each situation, decisions were made by faculty members that had an adverse impact on a student with a disability without proper consideration of the consequences to the students’ right to participate in the educational program.
When there is a clear disagreement between the Disability Services Office (hereinafter DSO) staff and an academic department the disagreement must be resolved in a manner that is “sufficient to safeguard a student’s academic wellbeing.” (See California Western School of Law, No. 09-06-2097 (OCR 09/01/2006)). There appears to be no process or procedure that is implemented at the College in situations where there is such an impasse between DSO and an academic department. The courts and the Department of Education have ruled that when institutions make decisions that have an adverse impact on students with disabilities they must be able to demonstrate that those decisions were the product of a “deliberative process or procedure”. Necessary elements of the process include evidence that: a) the decision was made by a group of people who are trained, knowledgeable and experienced in the relevant areas, academic as well as disability services; b) the decision followed a careful, thoughtful and rational review of the academic program and its requirements and the needs of the student; and c) there was a legitimate non-discriminatory reason for treating a student with a disability differently. (Appalachian State University, 34 NDLR 176 (August, 2006)).
An approach to incorporating the necessary “deliberative process” could be to form an ad hoc committee comprised of a Provost Office representative, the DSO Director, the ADA/504 Coordinator, and the Department Chair from the relevant academic area. The committee’s responsibility would to address the type of cases described above and recommend the necessary corrective action. This is particular important for those departments where there have been ongoing conflicts or controversies regarding accommodating students with disabilities. The fact that officials of the College are aware that there are ongoing compliance issues that have gone unresolved would be problematic if a student subsequently files a complaint with OCR.
Effective policies and procedures should be adopted to resolve conflicts between DSO staff and academic departments that would ensure that the “deliberative process” mandate is met and the rights of students are protected. Those policies and procedures should incorporate the compliance obligations that federal enforcement agencies have identified as being significant regarding the manner in which faculty members participate in the accommodation process. They include:
SeeUniversity of Guam, No. 10072030 (OCR 2010); Florida State University, No. 04-10-2170 (OCR 2010); Spokane Community College, No. 10082072 (OCR 2009); and Antioch University-Seattle, Nos. 10082061 and 10092012 (OCR 2009). It is particularly important for postsecondary institutions to adopt effective policies and procedures regarding the involvement and participation of faculty for individuals who are hired as adjuncts. Many institutions develop written faculty guidelines, as well as offering an orientation program for faculty conducted by their disability services staff.
We also recommend that the College incorporate checks and balances to ensure that faculty are not using the administrative withdrawal policy in a manner that adversely impacts students with disabilities either because of refusals to consider providing academic adjustments that would permit students to satisfy academic requirements (such as, relaxing attendance requirements as an accommodation) or because withdrawal decisions are the product of negative or discriminatory beliefs or animus based upon disability.