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CASELAW UPDATE Jeanne M. Kincaid Drummond Woodsum.

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Presentation on theme: "CASELAW UPDATE Jeanne M. Kincaid Drummond Woodsum."— Presentation transcript:

1 CASELAW UPDATE Jeanne M. Kincaid Drummond Woodsum

2 Documentation Issues Drummond Woodsum 2

3 Tip Drummond Woodsum 3  Colleges and universities may wish to review existing documentation guidelines and procedures in light of the ADA Amendments Act of 2008

4 Too Strict Drummond Woodsum 4  OCR faulted college for imposing too strict criteria  Should not be unduly burdensome for students  May only request minimum amount necessary to establish disability and/or need for requested accommodation  Should be clear to students so that they are aware of what is necessary Central New Mexico Community College

5 It’s All About Documentation  College is permitted to require medical evidence in support of student’s accommodation request  College may also obtain its own professional determination Fayatteville Technical Community College 5 Drummond Woodsum

6 You Have To Ask!  Without deciding that student’s attendance should be excused for disability-related reasons  OCR finds that student failed to show he had requested same Onondaga Community College 6 Drummond Woodsum

7 Reasonable Accommodations Revisited 7 Drummond Woodsum

8 Method of Providing Notes  OCR took no issue with college’s process of supplying notes to student  Recruit volunteers from class  If not available, tape-record lectures and seek copy of instructor’s notes or faculty assistance  Discontinue service if student fails to attend class  Here, student offered no evidence that he had notified disability office that quality of notetaking was insufficient Onondaga Community College 8 Drummond Woodsum

9 Method Okay Drummond Woodsum 9  But delivery not  When student notified disability office that notetaking assistance was not provided, ball dropped between advisor and disability office San Diego State University

10 Notetaking Alternative Effective? Drummond Woodsum 10  Court refuses to dismiss claim that law school failed to provide effective note-taking assistance  When college allegedly had difficulty locating notetakers, it offered transcribed lectures  Court concludes that student has a right to prove that lectures were not transcribed at all and/or in a timely manner Di Lella v. University of the District of Columbia David A. Clarke School of Law

11 Weekend Exams Drummond Woodsum 11  What to do when the disability office is only open during the week?  OCR took no issue with faculty and student agreeing to alternative testing arrangements, even if such resulted in student foregoing certain accommodations Here, test location and time of exam Broward Community College

12 Best Practices Drummond Woodsum 12  Disability office had very clear written procedures  Which may also hurt you if not followed  Disability office kept detailed logs  Faculty member had student sign statement agreeing to deviation from accommodation letter Broward Community College

13 Asthma  Assuming asthma is a disability, College reasonably accommodated student by having Tavern create a smoke free environment College of St. Rose 13 Drummond Woodsum

14 Course Viability Rules Drummond Woodsum 14  Look out!  Jury faults university for refusing to modify its course viability rules for Ph.D. candidate with lung condition  But he gets nothing for failing to file his case in a timely manner Long v. Howard University

15 How Many Extensions? Drummond Woodsum 15  University refused to grant sixth extension for Ph.D. candidate to complete his dissertation  Court dismisses suit based on statute of limitations Quinn v. University of Oklahoma

16 Is It Too Late To Sue? Drummond Woodsum 16  Although court dismisses most of former student’s accessibility claims for failing to timely sue  Her graduation claim can move forward Muha v. Rutgers University

17 A Problem with Take-Home Exams Drummond Woodsum 17  Cheating and plagiarism  Court upholds one year suspension as there cannot be a disability-related reason to overturn decision  Which the court must accord deference Di Lella v. University of the District of Columbia David A. Clarke School of Law

18 Is There a Second Chance Doctrine?  Does the ADA require a university to give a student a second chance as a reasonable accommodation, after s/he learns of a potentially disabling condition?  No Brown v. University of Cincinnati  Yes Singh v. George Washington University 18 Drummond Woodsum

19 Less Is Not Better  OCR faulted college for using in-class transcription service, based on a “meaning for meaning system” rather than word-for-word real-time captioning she requested and was supported by documentation  Factors:  Severity of condition  Course difficulty Highline Community College 19 Drummond Woodsum

20 What OCR Did  Compared audiotapes of lectures with the transcripts!  Finding concepts not covered in the service and numerous inaccuracies; lack of questions and answers; and lack of examples used by instructor Highline Community College 20 Drummond Woodsum

21 No Good Deed...  Professor was accommodating rather than discriminating by suggesting that student take an anthropology course via independent study College of DuPage 21 Drummond Woodsum

22 ADA Extends to the Mouth  College did not discriminate against student with diabetes for refusing to waive its requirement that dental hygienist students serve as patients for fellow students absent documentation  Doctor’s order was limited to multiple students, and college accommodated that request Fayatteville Technical Community College 22 Drummond Woodsum

23 Course Substitution  Court found no discrimination against student with Asperger’s Syndrome when:  Student successfully completed two semesters in Spanish  University had granted a course substitution by authorizing him to take beginning French  University refused second request, after student had cheated on a French exam  Had student not withdrawn from French he would have been dismissed as he had plagiarized in another course Strahl v. Trustees of Purdue University 23 Drummond Woodsum

24 The Ten Commandments of Conduct 24 Drummond Woodsum

25 Thou Shalt Not Steal  Graduate school psychology student failed to establish that the College discriminated against him for giving him a failing grade based on two instructors’ assessments that student had plagiarized College of St. Rose 25 Drummond Woodsum

26 Thou Shalt Not Choke  College did not unlawfully discriminate by suspending student for one year after he attempted to choke his aide Alamance Community College 26 Drummond Woodsum

27 Thou Shalt Not Threaten to Kill  University did not retaliate by barring student from campus after OCR advised that student reported wanting to “put a bullet” to the head of a professor Mershon v. St. Louis University 27 Drummond Woodsum

28 Thou Shalt Not Lie Drummond Woodsum 28  Court upholds dismissal under State law of medical student who falsified documents pertaining to his clinical rotations and lied during first disciplinary hearing  Student did not identify himself as having Tourette’s Syndrome and OCD until second hearing  Even if he had, college has right to set ethical and technical standards; disability misconduct no defense Batt v. University of Vermont

29 No Delay For Misconduct  Institutions of higher education may discipline students for misconduct even when resulting from a mental health impairment  College was under no obligation to postpone disciplinary hearing while student gathered disability- related information since it would not justify his actions Tylicki v. St. Onge 29 Drummond Woodsum

30 I Need a Break  OCR rejects student’s contention that had the College afforded the student a leave of absence to address his post-traumatic stress disorder, he would not have acted in the manner that led to his suspension  Student was only diagnosed with condition following his suspension Northwestern Business College 30 Drummond Woodsum

31 Discrimination: To Be Or Not To Be 31 Drummond Woodsum

32 No Discrimination  Delay in placing medical assistant who could only lift 5 pounds and work 2-4 hours daily was not discriminatory  But student simultaneously worked an 8 hour shift in a TV control room on numerous occasions without accommodation Pikes Peak Community College 32 Drummond Woodsum

33 No Affirmative Obligation  Even if student’s disability prevented him from working, college was not obligated to extend maximum amount of loan as an accommodation Riverside Community College 33 Drummond Woodsum

34 Overseas Travel  OCR did not fault College for inquiring whether student with admitted health problems should participate in clinic located in remote area of Honduras  College never denied her participation Husson College 34 Drummond Woodsum

35 No Dough  Title III of the ADA does not authorize monetary damage awards College of St. Rose 35 Drummond Woodsum

36 Maybe Some Dough  The Rehabilitation Act may authorize monetary damage awards upon a showing of deliberate indifference to a student’s rights guaranteed under the law College of St. Rose 36 Drummond Woodsum

37 Some Really Big Dough  Although Court refuses to overturn jury verdict against the University of New York at Buffalo, court reduces the award of $601,000 to $100,000 (or granting the university a new trial) concluding that jury’s verdict was based on sympathy and the amount of the award “shocks the judicial conscience” Bayon v. State University of New York 37 Drummond Woodsum

38 Basis of Claim  Student filed multiple complaints with OCR  Jury did not believe that actions taken by university, which ultimately resulted in no financial aid and denial of readmission were a pretext for discrimination 38 Drummond Woodsum

39 No Failure to Accommodate  Former student failed to carry his burden of demonstrating that university failed to accommodate his physical and visual impairments  Conceding that the university had provided some notetakers, extended time, a tape recorder and enlarged materials Mershon v. St. Louis University 39 Drummond Woodsum

40 Standard  Student must show a failure to accommodate  And that the provision of said accommodations would render him otherwise qualified Mershon v. St. Louis University 40 Drummond Woodsum

41 Physical Accessibility Drummond Woodsum 41  Increasing litigation and agency complaints  Which agencies?  HUD – based on Fair Housing Act  OCR – based on Rehabilitation Act and ADA  DOJ – based on all three Acts  Be proactive!

42 Grievance Procedures Drummond Woodsum 42  Notice to students and employees where and with whom to file  Address full range of discriminatory conduct  Provide adequate, reliable, impartial investigation  Opportunity to present witnesses and evidence  Include reasonably prompt timeframes  Notify parties of outcome  Informal resolution as a step is permissible Harvard University

43 Procedure Flaws Drummond Woodsum 43  Course catalog and website limited grievances to academic adjustment disputes  Must cover full range of potential discriminatory actions  One of the designated 504 officers was unaware of the extent of his responsibilities  Informal resolution procedures unclear  Grievance was not promptly investigated Harvard University

44 What Is a Grievance Drummond Woodsum 44  Student wrote to president and mentioned disability-related matters  That was enough  Tips:  Be clear as to where to file  Be cautious: often these concerns are raised at the President’s level  Consider a statute of limitations as part of the process – here filed more than a year later Harvard University


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