11/3/2019 Steve Gordon, AUSA, Civil Rights Enforcement Coordinator - - PDF document

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Steve Gordon, AUSA, Civil Rights Enforcement Coordinator United States Attorney’s Office Eastern District of Virginia

Opinions Expressed Herein or Otherwise are those of the Speaker and do not Necessarily Reflect the Views of the United States Department of Justice.

➢ADA in higher education is a large area that could

take at least a full day to cover. This presentation will provide a discussion of the applicability of the ADA to post-secondary education settings and then discuss a few selective issues.

➢Developing an understanding and awareness of the

ADA’s requirements in higher education.

➢Recognizing ADA issues in higher education.

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➢

ADA Basics

➢

Definition of a Disability

➢

Statistics

➢

ADA Applies to All Parts of An Institution of Higher Education, Including Academic and Non-Academic Programs and Services.

➢

ADA Legal principles That Apply in Higher Education Settings.

➢

The ADA’s Structural Requirements.

➢

Selective Issues that Arise in Higher Education Settings.

➢ Communication related disabilities ➢ Digital access ➢ Mental health issues ➢ Dining hall issues ➢ Testing accommodations ➢ Physical access

➢

Suggestions for Ensuring ADA Compliance: Be Proactive.

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➢Statute ➢Regulations ➢Technical Assistance ➢Settlement Agreements ➢Briefs

The ADA prohibits discrimination and ensures equal

• pportunities for persons with disabilities in:

➢Employment (Title I) ➢State and local government

nment servi vices (Title II) (e.g., public unive versities, colleges, commu muni nity colleges, and workf kforce developme ment nt program ams)

➢Public accommodations (Title III) (“undergraduate, or

postgrad aduat uate privat ate school, or other place of education”)

The Americans with Disabilities Act, which was passed in 1990, represents a profound and historic shift in how people with disabilities are treated, which was the culmination of decades of advocacy. Enactment of the ADA evidenced Congress’ recognition that the inferior social and economic status of people with disabilities was not a consequence of the disability itself, but instead was a result

• f societal barriers and prejudices. As with racial minorities and

women, Congress recognized that legislation was necessary to eradicate discriminatory policies and practices.

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“[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; [D] D]iscrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;” 42 U.S.C. § 12101

In drafting the ADA, Congress wrote that “the Nation’s proper goals regarding individuals with disabilities are to assure equalit lity of oppor

• rtunit

ity, full participation, independent living, and economic

• mic self-

suffic icie iency for such individ ividuals ls.” 42 C.F.R. § 12101 (a)(8) (emphasis added).

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities

• f a public entity, or be subjected to discrimination by

any such entity. 42 U.S.C. § 12132; see also 28 C.F.R. §§ 35.130(a); 35.152(b)(1). The ADA is a broad civil right hts statut ute that covers a wide range of activi vities.

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“The ADA . . . Specifically prohibits discrimination against [individuals with disabilities], not just based on invidious “affirmative animus,” but also based on thoughtlessness, apathy, and stereotypes about disabled persons.” Guckenburg v. Boston University, 974 F.Supp. 106 (D.Ma. 1997).

 Failing to “make reasonable modifications to policies,

practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”

 Failing to provide auxiliary aids or services to individuals

who have communication disabilities.

 Imposing a surcharge on an individual with a disability to

cover the cost of compliance with the ADA. 28 C.F.R. §§ 35.130 & 35.160

 Imposing “eligibility criteria that screen out or tend to

screen out an individuals with a disability. . .”

 Selecting a site for an activity that has the effect of

excluding individuals with disabilities.

 Segregating individuals with disabilities from others in

the receipt of services.

 Using methods of administration of a program that

“have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.”

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The prohibitions in the ADA and its implementing regulations: “are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereot

• typ

ypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do.” Section-by-Section Analysis of the ADA regulations

 Students with learning disabilities are lazy and are just not trying

hard enough.

 Students with learning disabilities are faking it to gain some

unfair advantage.

 Students with mental illness require extended leave when they

request a leave of absence.

 Students who are deaf are not cognitively capable.  Students who are deaf could communicate through lip reading if

they just tried hard enough.

 Students who are blind cannot live independently.  Students with mental health disabilities are always dangerous.

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 A physical or mental impairment that substantially limits

• ne or more major life activities (e.g., hearing, seeing,

walking or operation of bodily function such as immune system).

 A record of such an impairment.  Being regarded as having such an impairment.  If an individual with a disability is asymptomatic, may

still be covered by the ADA. 42 U.S.C. § 12102 The ADA was amended in 2008 to overrule two Supreme Court cases that narrowly defined “disability.”

➢Walking ➢Performing Manual Tasks ➢Seeing ➢Breathing ➢Hearing ➢Caring For One’s Self ➢Working ➢ Standing ➢ Lifting ➢ Bending ➢ Concentrating ➢ Learning ➢ Speaking ➢Immune System ➢Normal cell growth ➢Digestive ➢Bowel ➢Bladder ➢Neurological ➢Brain ➢Respiratory ➢Circulatory

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➢Deafness or hard of hearing ➢Dyslexia and other specific

learning disabilities

➢Blindness ➢Intellectual Disability ➢Neurologic conditions (e.g.,

PTSD, bipolar disorder, TBI, and schizophrenia)

➢Partially or completely missing

limbs

➢Mobility impairments ➢

Autism

➢

Cancer

➢

Cerebral Palsy

➢

Diabetes

➢

Epilepsy

➢

Addictions

➢

Hypertension

➢

Digestive disorders

➢

Allergies

➢Dyslexia and other specific

learning disabilities

➢Mental illness ➢Posttraumatic stress disorder

(“PTSD”)

➢Traumatic brain injury (“TBI”) ➢Epilepsy ➢ Arthritis ➢ Hypertension ➢ Diabetes ➢ Intellectual disabilities ➢ Digestive disorders ➢ Cancer ➢ HIV

 The Census Bureau reports that approximately 56.7

million people living in the US had some kind of disability in 2010.

 The National Institute on Deafness and Other

Communication Disorders (NIDCD) reports that one in eight people in the United States (13 percent, or 30 million) aged 12 or older has hearing loss in both ears, based on standard hearing examinations.

 NIDCD reports that approximately 7.5 million people

in the United States have trouble using their voices.

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 According to the Census Bureau, approximately 7.3 million

individuals in the United States report significant vision loss.

 According to the Centers for Disease Control, 36.2 million

adults have some kind of physical functioning difficulty.

 The National Institute of Mental Health reports that in 2014,

9.8 million adults aged 18 or older have a serious mental illness that substantially interferes with or limits one or more major life activities.

What is the most common type of disability among students?

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Are individuals with dyslexia cognitively impaired?

According to the NIH, “Dyslexia is a brain-based type of learning disability that specifically impairs a person's ability to read. These individuals typically read at levels significantly lower than expected despite having normal intelligence. Although the disorder varies from person to person, common characteristics among people with dyslexia are difficulty with phonological processing (the manipulation of sounds), spelling, and/or rapid visual-verbal responding.”

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Do individuals with disabilities enroll in institutions for post- secondary education at the same rate as individuals who are not disabled?

 Students with disabilities are less likely (46 % vs. 63 %) to enroll in postsecondary

education when compared to young people in the general population.

 28 % of adults in the general population had completed college, while less than half

• f this percent of individuals with disabilities have completed college.

 Students with disabilities are more likely to enroll in a two-year institution than a

four-year institution.

 According to the U.S. Dept. of Education, 57% of the general population entering

college as first-time full-time students completed a degree within six years. For students with disabilities that figure is 34%.

 Students with intellectual disabilities are significantly less likely to access college

than students with other disabilities.

According to the CDC, 22.3 % of Virginians have a

disability.

According to the Virginia Department of

Education, in 2016, there were 168,943 students with disabilities in elementary and secondary schools.

Specific Learning Disability was the largest

category with 54,763 students.

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The ADA requires state and local governmental entities, such as state operated institutions of higher education, to take affirmative steps to ensure compliance with the ADA. Anticipating and preparing for disability-related needs are key to success.

The ADA regulations state: “A public entity, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.” 28 C.F.R. § 105(a).

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If you have a question about the ADA, where do you go?

The ADA regulations provides that: “A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part [of the ADA Regulations].” “The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.” 28 C.F.R. 35.107. The section-by-section Analysis of the ADA Regulations explain the rationale for the designation of an ADA Coordinator: “The requirement for designation of a particular employee and dissemination of information about how to locate that employee helps to ensure that individuals dealing with large agencies are able to easily find a respon

• nsible person who is familiar with the

requirements of the Act [ADA] and this part [of the ADA regulation

• ns] and can communicate those requirements to other

individuals in the agency who may be unaware of their respon

• nsibilities.”

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Public entities with 50 or more employees must have published ADA grievance procedures providing for the prompt and equitable resolution of ADA complaints. 28 C.F.R. § 35.107 (b).

A university hosts series of lectures by a leading physicist who works at another institution, is that event covered by the ADA?

A university hosts a film festival, is the festival covered by the ADA?

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A university has a counseling center that holds education programs for the entire community on strategies for dealing with stress. Is the university required to ensure that the programs are accessible to individuals with disabilities? A university sells tickets to an on campus theater performance. The venue includes the ADA required accessible seating. Are there rules that apply to how the tickets for the accessible seats must be sold?

A university has a meal plan for all students who live on campus. A student has celiac disease and needs a gluten-free diet. What is the university required to do?

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A university has a basketball team that plays at an arena located on campus and a spectator is deaf and requests access to the material that is announced over the load speakers. What is the university required to do?

Universities and colleges provide a variety of programs and services— all of which are covered by the ADA--including academic and non-academic areas.

➢ Admissions ➢ Classes ➢ Online courses ➢ Technology Used in Courses ➢ Examinations ➢ Graduation programs ➢ Professional and entrance exam and

prep courses

➢ Extracurricular activities, including clubs

and athletics

➢ Campus activities ➢ Extracurricular Lectures ➢ Theater and Musical Performances ➢ Sporting Events ➢ Ticket Sales for Events ➢ Dining Hall ➢ Dorms ➢ Library services ➢ Healthcare and mental health services ➢ Recreational facilities, including gyms

and pools

➢ Career services ➢ University/College Law Enforcement

Agencies

➢ Campus Transportation ➢ Greek organizations ➢ Student disciplinary Hearings

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A community college

• ffers non-credit courses,

are they covered by the ADA?

The ADA applies to the Virginia Workforce Credential Grant program at Virginia Community Colleges, which provides workforce training in 40 different occupational fields, including healthcare, information technology, and skilled trades, such as, HVAC technician and welding. Most programs last between six and twelve weeks. During FY 2018, Virginia’s Community Colleges provided training for more than 52,000 individuals with noncredit workforce training.

 Process issues, including the financial cost of documenting a disability

and the investment of time that students must make in self-advocacy.

 What does the request process look like? Separate requests for each

course/faculty members?

 Lack of faculty/staff training regarding how to address the needs of

students with disabilities, including recognizing instructions from the disability office.

➢Ensuring Effective communication for individuals who are ➢ Deaf or hard of hearing. ➢ Blind. ➢ Other communication disabilities.

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Attitudinal barriers that students with disabilities are

not entitled to some “unfair advantage.”

Faculty are resistant to and/or do not know how to

implement the reasonable modification.

Providing auxiliary aids and services and

modifications of policies, practices, or procedures in a timely manner.

Ensuring digital accessibility, including for on-line

courses, web sites and multi-media.

 Failing to make reasonable modifications to policies,

practices, or procedures for individuals with dyslexia or

• ther specific learning disabilities.

 Ensuring accessibility to professional and licensure

examinations and preparation courses.

 Students with an undiagnosed disability are not getting

the support that they need and ensuring faculty knows how to make a referral to the disability service office.



Ensuring that transportation offered by a college or university is accessible.



Ensuring architectural accessibility of classrooms and dorms.



Ensuring equal treatment for students with mental health issues.



Ensuring access to dining services for individuals with disability related dietary needs.



Ensuring individuals with disabilities may participate in athletic activities.

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➢ Ensuring that the infirmary is accessible. ➢ Providing accessible Ticketing for events held on

campus.

➢ Addressing issues surrounding service animals. ➢ Providing Campus housing for individuals with

disabilities in special programs.

➢ Ensuring that events open to the public are

accessible to members of the public with disabilities.

 Psychological factors in self-disclosing a disability.  Students may have been entitled to accommodations in the

K-12 setting must now advocate through repeated and

• ngoing self-disclosure in college.

 Students with disabilities often do not identify themselves

as having a disability (NCES found only 28% of students with disabilities identified themselves and informed their postsecondary schools of their disability).

 Cost associated with documenting a disability and the

required accommodations. Unlike K-12, in high education settings, a student must bear the cost associated with documentation.

 Self-advocacy is often required as high education students are

typically adults (over 18).

 Meetings with disability services offices.  What is the location of the disability services office? Is it near

student housing and easily accessible?

 Meeting with multiple faculty members, who may or may not

be sympathetic to the student’s disabilities and needs.

 One-size does not fit all. Individualized assessment is

• important. Electronic text books are not automatically

accessible.

 Self-advocacy takes away from other time the student has for

their studies and full participation in campus activities.

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Requiring students to be re-tested for disabilities

without regard to whether the disability is a permanent one can be problematic.

Schools may request documentation from a

“qualified professional,” which are “are licensed or

• therwise properly credentialed and possess

expertise in the disability for which modifications

• r accommodations are sought.”

“[A] university [is] prevented from employing unnecessarily burdensome proof-of-disability criteria that preclude or unnecessarily discourage individuals with disabilities from establishing that they are entitled to reasonable accommodation.” Guckenberger v. Boston University, 974 F Supp 106, 135 (D. Mass. 1997). DOJ has a useful Technical Assistance Publication on Testing Accommodations that provides a discussion of documentation.

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 Public entities are required to communicate effectively with

people who have communication disabilities (i.e., vision, hearing or speech). The goal is to ensure that individuals with disabilities receive equally effective communication to those who do not have a disability.

 Public entities are required to furnish appropriate auxiliary

aids and services in order to ensure effective communication with individuals who have communication disabilities.

 The key to communicating effectively is to consider the nature, length,

complexity, and context of the communication and the person’s normal method(s) of communication.

 Generally, classes will require a sign language interpreter and classes over video

will require captioning.

 Sign language interpreting will be required for other types of interactions with

the student (e.g., career counseling, healthcare and mental health services)

 Covered entities may not charge the individual with a disability any surcharge

for furnishing auxiliary aids and services.

 The rules apply to communicating with the person who is receiving the covered

entity’s services as well as with the person’s parent, spouse, or companion in appropriate circumstances. This means that you may need a sign language interpreter for interactions with parents who are deaf.

“The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity y shall give primary y consideration to the requests of individuals with disabilities. In

• rder to be effective, auxiliary aids and services must be provided in

accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 35.160(b)(2).

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“When an auxiliary aid or service is required, the public entity must provide an opport rtunity for r individuals with disabilities to request the auxiliary ry aids and services of their r choice and must give primary ry consideration to the choice expre ressed by the individual. It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.” Americans with Disabilities Act, Technical Assistance Manual, § II-7.1100 (emphasis added).

“A public entity has a conti tinuin ing obligati tion to assess the auxiliary aids and services it is providing, and should consult with the individuals with disabilities on a conti tinuing basis to assess what measures are required to ensure effective communication.”

Section-by-Section discussion of 2010 ADA Regulations (emphasis added).

 Qualified interpreters (ASL, English or other);  Notetaker;  CART;  Written materials;  Assistive listening devices & systems;  Open and closed captioning;  Accessible electronic and information technology;  Other effective methods of making aurally delivered information

available to individuals who are deaf or hard of hearing. 28 C.F.R. § 35.104

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Sign language interpreters are effective only for people who use sign language. Other methods of communication, such as the use of a transcriber may be necessary for those who do not know ASL. An administrative assistant who works for the disability services office took two semesters of American Sign Language as a high school student, is she qualified to be a sign language interpreter for a meeting with a student who is deaf and her disability service counselor?

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Can a public entity use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate? Signin ing g and interpreti ting g are not the same thing.

• g. Being able to sign

does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or fingerspelled communication into spoken words. The interprete ter must be able to interpr pret t both recepti tively and expressively. Americans with Disabilities Act, Technical Assistance Manual, §§ II- 7.1200.

If an interpreter is required, a covered entity must furnish a “qualified interpreter.” 28 C.F.R. § 35.104.

Able to interpret:

➢

Effectively – interprets both receptively (i.e., understanding what the person with the disability is saying) and expressively (i.e., having the skill needed to convey information back to that person) using the sign language of the individual needing the interpreter (e.g., ASL, Signed English, etc.)

➢

Accura rately

➢

Impart rtially

➢

Understanding the necessary specialized vocabulary ry that is used for the particular setting (e.g., ensure that the interpreter understands the vocabulary used in the setting, such as technically complex course material). 28 C.F.R. § 35.104 (definition of “qualified interpreter”).

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▪Accessible formats ▪Timely manner -- delays mean that service is

not equal.

▪Protect privacy and independence

28 CFR 35.160(b)(2)

Argenyi nyi v. Creight ghton n Univer versity

703 F.3d 441 (8th Cir. . 2013) 3)

 For medical school, student requested: CART for lectures; cued speech interpreter

for labs; FM system for small groups

 Creighton provided some accommodations, but not all  Student borrowed $100,000+ to fund his own accommodations  Creighton refused to allow student to use an interpreter in his clinical courses, even

if he paid for the interpreter himself

 Without CART and interpreters, student was

• Unable to follow class lectures and dialogue
• Unable to communicate with patients in clinical setting
• Experienced debilitating headaches and extreme fatigue

Eighth Circuit: Found for student (reversed/remanded MSJ)

 Creighton required to provide necessary auxiliary aids and services  District court misinterpreted “necessary” to require a showing that

individual was “effectively excluded” to warrant protection

 Instead, adopted “meaningful access” standard  Not required to produce identical result/achievement, but must

afford equal opportunity to gain the same benefit Jury trial in August 2013: Jury found for student

 University discriminated in violation of the ADA and the Rehab Act  Auxiliary aids would not have caused an undue burden

Judge: Creighton must accommodate student in his final two years.

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There are many types of auxiliary aids and services for individuals who have speech disabi bilities es, including: A qualified speech-to-speech transliterator (a person trained to recognize unclear speech and repeat it clearly), especially if the person will be speaking at length, such as giving testimony in court. Allowing more time for communication.

 Qualified readers;  Taped texts;  Audio recordings;  Brailled materials and displays;  Screen reader software;  Magnification software; Optical readers;  Secondary auditory programs (SAP);  Large print materials;  Accessible electronic and information technology; or  Other effective methods of making visually delivered materials

available to individuals who are blind or have low vision. 28 C.F.R. § 35.104

What auxiliary aid or services works with individuals who are both deaf and blind?

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A father, who is deaf, of a prospective student joins his daughter for a tour of a university campus. Is the university required to provide a sign language interpreter for the father of the prospective student for the campus tour? The ADA regulations require public accommodations to furnish auxiliary aids and services to “individuals with disabilities” and “companions who are individuals with disabilities.” 28 C.F.R. § 36.303(c).

A companion who is deaf often has his

• r her own independent need for

effective communication. For example, a parent who is deaf and brings a child to a college campus may need to communicate with staff. 79 80 81

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“[C]ompanion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate. 28 C.F.R. § 36.303(c)(1)(ii).

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Assistive technology such as digital textbooks can prove difficult for students with disabilities, as many digital textbooks are not accessible by screen readers. This is especially burdensome for students with print-related disabilities such as dyslexia or visual

• impairments. These students typically use computer software that

enables them to enlarge text, transcribe dictation, or even dictate

• text. But if the digital materials, such as PDFs or digital textbooks,

are not formatted properly, the enabling software used by students with disabilities may prove incompatible, thus rendering these documents unavailable. Ensuring access to digital materials arises with regard to multiple disabilities, including:

➢Visual impairments, including limited impairments to complete

blindness, and color vision issues.

➢Learning disabilities that require screen reading software. ➢Hearing issues makes the aurally delivered information

inaccessible.

➢Mobility impairment may make it difficult if not impossible for an

individual to use a computer keyboard, mouse or both.

On-line courses. Multi-media course materials, such as video or audio

recordings.

Online products used for applications, course

enrollment, home work, lab work, and/or examinations.

Handouts that are provided in digital format. Courses that require the use of a computer or

calculator.

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According to Online Report Card, 72.7% of undergraduates and 38.7%

• f graduate level students at public

institutions take online courses.

Settlement Agreement with Professional Publishing, Inc. Failed to provide captioning to online courses that prepare students for the licensing examination for professional engineers. Selective Terms of the settlement agreement:

➢ Adoption of an ADA Course Modification Policy that requires closed-captioning of

• nline courses.

➢ Ensure that captions are consistent with the voluntary industry standard known as

WCAG 2.0 AA

➢ Train staff on the ADA’s requirements ➢ $40,000 in compensatory damages to be divided by the four students who

unsuccessfully requested captioning.

➢ $10,000 civil penalty.

Settlement Agreement with Louisiana Tech University

• University’s online learning platform was inaccessible - student had no

accessible materials for nearly one month into quarter - withdrew

 Additional problems in subsequent courses  Settlement (select terms):

• Revised policy, including requirement to use learning technology, web pages

and course content that comply with WCAG 2.0 Level AA

• Ensure University-recognized modifications are implemented
• Make web pages and materials created since 2010 accessible
• Train instructors and administrators about the ADA
• Pay $23,543 in damages to the student

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DOJ Settlement Agreement: EdX, Inc.

 EdX contracts with over 60 institutions of higher learning  Provides massive open online courses, and operates a

website, mobile application and a Platform

 Settlem

emen ent (selec ect terms):

• Compliance with WCAG 2.0 within 18 months
• Requires content providers to certify that provided courses

meet certain requirements

• Retain a website accessibility consultant
• Designate a website accessibility coordinator

NAD v. Harvard rd University, 15 15-cv cv-30023 (D. Mass. Feb. 12, 2015) NAD v. Mass. Inst. . of Tech., ., 15 15-cv cv-30024 (D. Mass. . Feb. . 12, , 2015)

 NAD: ADA violation for students & public b/c universities have no closed

captioning for online materials provided free to the public, including recordings of speeches and educational materials

 Universities: Title III doesn’t apply to the accessibility of online content &

captioning is a fundamental alteration of content

 DOJ Statement of Interest: Disagreed with Universities

• Title III applies to online content offered to the public; colleges must

provide meaningful access

 Status: Magistrate recommended denying MTD; parties’ briefing decision.

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DOJ Agreement: Quinnipiac Unive versity

 Student sought mental health counseling; diagnosed with

depression.

 Student placed on a mandatory leave with no tuition refund.  DOJ found that the University failed to modify its mandatory

leave policy to permit student to complete course work while living off campus or attending classes online or in person

 Settlement:

• Modify policy to consider accommodations other than leave
• Pay over $32,000 in damages

DOJ press release in Quinnipiac: “Quinnipiac removed this student from the university at a very vulnerable time in her life, and saddled her with a large student loan payment,” said U.S. Attorney Daly. “Instead of removing students from school, educational institutions must be equipped to manage and educate students who recognize, disclose and are treating their mental health disabilities.” “[U]niversities like Quinnipiac cannot apply blanket policies that result in unnecessary exclusion of students with disabilities if reasonable modifications would permit continued participation.”

 Complainant sent text message to a friend disclosing major

depressive disorder, noting doctors’ concern re: suicide risk

 DOJ investigation found:

• Due to text, NMU threatened to dis-enroll complainant, required her to

submit to a psychological assessment and sign a behavioral agreement (restricting discussion of suicidal thoughts) per student self-destructive behavior policy

• Three others with similar allegations

 Settlement (October 2018)

• Confirms that mental health conditions like depression and anxiety are

disabilities within the meaning of the ADA.

• New policies re: ADA, non-discrimination, reasonable modifications

assessed on a case-by-case basis.

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 Remove policy about Student Self-Destructive Behavior

• Any safety requirements must be based on actual risk, not speculation,

stereotypes or generalization

• Any new policies must be provided to DOJ

 Revised Voluntary Psychological Withdrawal policy

• Length of withdrawals and conditions for return will be based on an

individualized assessment with best available medical evidence and careful consideration of opinions from treating professional – option to seek early return

• Medical information to clear return must meet certain requirements

(example provided as exhibit)

• Detailed written explanation if request to return is denied

 $173,500 in damages to the aggrieved persons  Braille or large-print exam booklets;  Screen reading technology;  Scribes to transfer answers to Scantron bubble sheets or record dictated

notes and essays;

 Extended time;  Wheelchair-accessible testing stations;  Distraction-free rooms;  Physical prompts (such as for individuals with hearing impairments); and  Permission to bring and take medications during the exam (for example,

for individuals with diabetes who must monitor their blood sugar and administer insulin). ADA Requirements: Testing Accommodations

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Lesley y University

 Must modify meal plan and food service system to accommodate

students with celiac disease and other food allergies

 Settlement agreement (select terms):

• Serve ready-made hot and cold gluten- and allergen-free options
• Develop individualized meal plans for students with food allergies;

students can pre-order certain foods with 24 hour notice

• Provide dedicated space in dining hall to store/prepare foods
• Post notice of the use of potential common allergens
• Establish meal delivery system should students want meals delivered to

avoid entering a dining hall filled with allergens. See also DOJ Settlement Agreement with Rider University

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Several versions. The version that applies depends on when

a building was built or altered.

Very helpful to have an architect with ADA

experience assist with ensuring compliance.

This includes all parts of a campus, including: Classrooms Dining facilities Path of travel between buildings Restrooms Dorms Recreational facilities Performance venues Libraries Parking lots Restrooms Student centers

University of Alabama at Birmingham DOJ identified multiple inaccessible buildings. University required to remedy the architectural access issues. McNeese State University DOJ identified multiple university programs at this state university in Louisiana that were not accessible, including classrooms, buildings that housed university programs and services, restrooms, routes

between facilities, and water fountains. McNeese was required to develop a plan to remedy the access issues.

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➢ Student with multiple sclerosis, optic neuritis, back and heart issues, and has

difficulty walking for long distances.

➢ College was undergoing construction and there was not sufficient accessible

parking for the student.

➢ College advised that security would drive her to classes and back until the

college could otherwise accommodate her disabilities.

➢ Security drove her to class one day and informed her that it would not drive her

back to her car and would not provide future transportation.

➢ Student fell walking back to her car and injured herself.

Court held:

➢ Student had made a sufficient showing to recover damages. ➢ Student entitled to injunctive relief.  Be Proactive and not simply

y reactive.

 Understand the ADA and how it applies to your organization,

including academic and non-academic programs. An institution of high learning is an entire community that includes many different kinds of programs, all of which are covered by the ADA.

 Designating an ADA Coordinator, who understands the ADA’s

requirements applicable to your organization and has sufficient authority y within the organization to ensure compliance.

 Establish an effective and timely grievance procedure that includes

experts on disability issues.

 Seek technical assistance when necessary.

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 Conducting periodic ADA audits, including, architectural

access, digital access, and access to all services and programs.

 Conduct regular reviews to ensure that your organization’s

process for handling ADA requests is functioning.

 The ADA Coordinator should be involved in the procurement

process to ensure that your institution is purchasing accessible goods and services (e.g. new technology).

 Develop a process to ensure that all students have

information on disability services.

 Develop procedures to ensure that documentation requests

are appropriate and not overly-onerous when dealing with ADA issues.

 Regularly consult with individuals with disabilities to

determine whether their disability related needs are being met.

 Ensure that faculty and staff are actually implementing the plan that the

disability office has developed for each student.

 Train faculty and staff who have direct contact with individuals protected

by the ADA on the requirements of the ADA.

 Ensure that faculty and staff have easy access to auxiliary aids and

services, such as sign language interpreters and CART.

 Hold regular meetings with faculty and staff responsible for ADA

compliance to discuss issues that have arisen.

 Train faculty and staff on identifying and referring students who may

need assistance from your disability service office.

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 Encourage staff to be open to issues of individuals with

disabilities and to ask questions.

 Address negative stereotypes when they arise.  Respond to an individuals with a disability on a case-by-

case basis. One size does not fit all.

“A critical and often overlooked component of ensuring success is comprehensive and ongoing staff

• training. A public entity may have established good

policies, but if front line staff are not aware of them or do not know how to implement them, problems can

• arise. Public entities should teach staff about the

ADA’s requirements. Many disability organizations can provide ADA trainings.”

➢

The Americans with Disabilities Act (“ADA”). 42 U.S.C. § 12101, et. seq.

➢

The ADA regulations. 28 C.F.R. Parts 35 (Title II) & 36 (Title III).

➢

The section by section analysis of the ADA regulations.

➢

The ADA Technical Manuals for Title II and Title III.

➢

DOJ Business briefings on ADA.gov.

➢

Section 504 of Rehabilitation Act of 1973. 29 U.S.C. § 794(a).

➢

Rehabilitation Act of 1973 regulations. 45 C.F.R. § 84.

➢

Case law interpreting these legal authorities.

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Steven Gordon Civil Rights Enforcement Coordinator Assistant United States Attorney Eastern District of Virginia Steve.gordon@usdoj.gov (703) 299-3817

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