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Salome Says

A blog by Salome Heyward about accessibility compliance for schools and companies.

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:

  • The Medical School’s continued references to professionalism as a fundamental goal of the educational program, including listing the types of behavior that students were required to demonstrate prior to graduation, made the decision that the student failed to meet an essential requirement of a program of study, i.e., professionalism, an appropriate decision.
  • The student’s behavior in the program over a three year period reflected “an ongoing pattern of unprofessional behavior” rather than isolated instances of misbehavior.
  • The student’s requested accommodation was “unreasonable on its face” because the student had consistently maintained until his dismissal that his behavior did not impact his ability to participate in the medical school program. It was additionally noted that the remedial plan could best be described as being of “indefinite duration” with an “uncertain likelihood of success.” Institutions are not required to wait an indefinite amount of time for students to satisfy essential program requirements.

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.