From Guinea Pigs to Online Education

From Guinea Pigs to Online

Education The Evolving ADA Landscape

Jeanne M. KincaidDrummond Woodsum

Drummond Woodsum PTI 2014 2

Caveat• The content contained in these slides and shared

during the conference is intended for informational purposes only and is based upon federal law.

• The participant is cautioned that state laws may afford individuals with disabilities greater protections.

• The participant is cautioned that no information, oral or written, should be treated as legal advice.


Proposed ADAAA Regulations

Notice of Proposed Rules:http://

www.gpo.gov/fdsys/pkg/FR-2014-01-30/pdf/2014-01668.pdf

http://www.gpo.gov/fdsys/pkg/FR-2014-01-30/pdf/2014-01668.pdf




History• The ADA Amendments Act went into effect on

January 1, 2009• The EEOC adopted amendments to Title I

regulations to comport with the ADAAA effective May 24, 2011

• On January 30, 2014, the Department of Justice (DOJ) issued proposed rules amending Titles II and III of the ADA to comport with the ADAAA

• Caveat: “proposed” is not finalo But these rules largely mirror the EEOC regulations


Proposed Changes• We will review just a few of the proposed changes• Remember – by and large the ADAAA addresses

who is disabled but did not amend substantive provisions

• DOJ’s stated goal: To have Titles II and III mirror Title I regulations on defining disability status protections


Major Life Activities• Will add:

o Sittingo Reachingo Interacting with others

• 28 C.F.R. §§ 35.108(c); 36.105(c)


Substantially Limits• Nine rules of construction

• 28 C.F.R. §§ 35.108(d); 36.105(d)o Most come directly from the statute

• Comparison group: “most people in the general population”o Continued consequences for students diagnosed with learning

disabilities


Presumptive Disabilities

• Although there are no per se disabilities, this list is subject to a rebuttable presumption of disability statuso Rules do not bar a college from requiring documentationo Tip: in the face of authentic documentation, if a campus is going to

deny protection to a student diagnosed with any of the following conditions, expect to face a heavy burden of proof• 28 C.F.R. §§ 35.108(d)(2); 36.105(d)(2)


Presumptive Disabilities

• Multiple sclerosis• HIV• Major depressive

disorder• Bipolar disorder• Post-traumatic stress

disorder• Traumatic brain injury• Obsessive compulsive

disorder• Schizophrenia

• Deafness• Blindness• Intellectual disability• Partially or completely

missing limbs or impairments requiring wheelchair

• Autism• Cancer• Cerebral Palsy• Diabetes• Epilepsy• Muscular dystrophy


How the MLA is Performed

• The proposed rules allow consideration of:o Condition;o Manner; ando Duration

• 28 C.F.R. §§ 35.108(d)(3); 36.105(d)(3)

• Again the reference is to most people in the general population

• Example used by the DOJ:o How long an individual with a learning disability may take to read, write, speak or learn –

in comparison with most people• Exception for “general population”: young children should likely be compared to

age peers


Mitigating Measures Explained• Learned behavioral or adaptive neurological

modifications include strategies developed by an individual to lessen an impairment’s impact

• Reasonable modifications include informal or undocumented accommodations and modificationso Analysis of proposed rules 28 C.F.R. §§ 35.108(d)(4); 36.105(f)(v)o Import – not a problem if you have no student who lies or distorts

his/her history


Mitigating Measures Explained• Self-mitigating measures or undocumented

modifications or accommodations for students that affect learning, reading or concentrating may include:o Devoting far larger amount of time to studyingo Teaching oneself strategies to facilitate reading connected text or

mnemonics to remember factso Extra time on testso Modified homeworko Tests in a different formato Tests in an alternate setting

• Analysis of proposed rules 28 C.F.R. §§ 35.108(d)(4); 36.105(f)(v)o Import – totally immeasurable


More Mitigating Measures

• Added to the list would be the following:o Psychotherapyo Behavioral therapyo Physical therapy

• 28 C.F.R. §§ 35.108(d)(4)(v); 36.105(d)(4)(v)


Medical marijuana

And then there is . . .


Substance Abuse & the ADA• Drug and alcohol addictions are treated differently

o Alcohol is sometimes legal; illegal drug use is noto If student is (or was) in recovery and not using, student enjoys protectiono For alcohol, even if student is not in treatment, s/he could be covered by

the ADA but must abide by the campus’ rules of conducto For drugs, student who is a current illegal drug user (including misuse of

prescription drugs), may be denied ADA protections


And In Many States. . .o Of course, we have medical marijuana!


The Rub• State laws authorizing the use of medical

marijuana arguably do not afford protection under federal laws which bar such legal recognition


Example• The Ninth Circuit Court of Appeals refused to

issue an injunction under Title II of the ADA barring two cities’ closure of medical marijuana dispensing facilities as marijuana is not legal under federal law to treat disability-related pain

o James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012)


Some Issues• May your campus recognize the use of medical

marijuana but not in tobacco form?• Tip: recognize the difference between taking

negative action against an individual who is a user, versus reasonably accommodating such use

• Tip: don’t go overboard: even if you wish to honor responsible use of marijuana, the key is “responsible”


Sample Policies• University of Maine System – supports patrons

who are authorized to use medical marijuana, but bars such use on campuso University is concerned about federal drug-free school and workplace

laws• Potential loss of federal funds, including student aid


Tip• Whatever your campus decides, it may be

advisable to inform your student population of the campus’ position if students could suffer adverse consequences


Discrimination?Removal of Students with Mental Health Issues


History• OCR has long interpreted the Rehabilitation Act as

authorizing involuntary removal of students who present a direct threat to themselveso Even though the regulations do not expressly state as such


What Happened?• The DOJ amended ADA regulations effective in

2011 and it created some confusiono Unlike Title I, Titles II and III address the concept of “direct threat” in

terms of harm to others


Ideas• Assume the ADA/Rehabilitation Act applies even if

student has not registered as a student with a disabilityo “Regarded as” prong is likely at play

• It may be wise to continue with two modelso Conduct code for certain violationso Another process for self-harm


Elements• Individualized decision-making• Campuses are wise to involve mental health

expertise in making decisions• Direct threat is still an option• But focus on “safety” and “disruption” as

essential eligibility criteria that are legitimate and defensibleo Is a student’s health so compromised that s/he is unable to handle the

rigors of postsecondary life?o And the standard to meet would not appear as high as direct threat


Elements• Factor in reasonable accommodation requests• Conditions of readmission should likely be

imposed• Regardless of process, due process, at least in

terms of a “grievance” option would be requiredo At involuntary withdrawal stageo At readmission stage

• When in doubt, and when there is resistance, always wise to consult with legal counsel

Barrier removal In The Electronic Age

ACCESS TO INFORMATION


Where Are We Currently?

• Neither the ADA statute nor any of its regulations nor the Rehabilitation Act nor its regulations addresses information technology and web accessibility

• In July 2010, the DOJ posted an Advanced Notice of Proposed Rulemaking pursuant to Titles II and III of the ADA

• Available at: http://www.gpo.gov/fdsys/pkg/FR-2010-07-26/pdf/2010-18334.pdf#page=1

o We are still waiting for proposed rules




That Has Not Stopped the Feds

• In June 2010, the DOJ and OCR issued a Joint Dear Colleague Letter (DCL), seemingly limited to individuals who are blind and the use of e-readers as a course requirement

• From there, the DOJ and OCR have expanded that initial DCL to target all forms of electronic technologies and web accessibility and the targeted groups to include students who are deaf/HH; those with mobility impairments and the “print disabled.”


Standard of Access• Individuals with disabilities are able to

independently acquire the same information, engage in the same interactions, and enjoy the same services within the same timeframe as individuals without disabilities, with substantially equivalent ease of use.


Examples• Penn State University

o In 2010, the National Federation for the Blind (NFB) filed a class complaint with OCR on behalf of students and employees

o 2011 agreement between Penn State and NFB with sweeping commitments• Agreement available at:

http://accessibility.psu.edu/nfbpsusettlement • Comprehensive accessibility website: http://accessibility.psu.edu


http://accessibility.psu.edu/nfbpsusettlement

http://accessibility.psu.edu/

South Carolina Technical College

• March 2013 resolution agreement committing system and its colleges to adopt system-wide accessibility measureso Websiteso Emailo Course management systemso Library resourceso OCR used Section 508 standards based on the System’s

policy commitment• The resolution agreement is available at:

http://www2.ed.gov/about/offices/list/ocr/docs/investigations/11116002-b.pdf




University of Montana• Class complaint filed in 2012 alleging the

inaccessibility of the following:o Class assignments and materials on the learning

management system Moodleo Live chat and discussion board functions – Moodleo Scanned documents posted on webpages and websiteso Course registration via website, Cyber Bearo Classroom clickers


University of Montana• Agreement entered into March 2014:

o Adoption of an electronic and information technology accessibility policy and procedures for implementation across all disciplines

o Conduct an accessibility audit, student surveys and system-wide trainings

o Adopt contract procurement language to ensure accessibility of purchased technologies

o Web-based technologies to comply with WCAG 2.0 AA standards; Section 508 for all other electronic and information technology systems


University of Montana• Definition of electronic and information

technologyo Includes, but is not limited to, the internet and intranet

websites, content delivered in digital form, electronic books and electronic book reading systems, search engines and databases, learning management systems, classroom technology and multimedia, personal response systems (“clickers”), and office equipment such as classroom podiums, copiers and fax machines.


University of Montana• Definition of electronic and information

technology:• It also includes any equipment or interconnected system

or subsystem of equipment that is used in the automatic acquisition, creation, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information. This term includes telecommunications products (such as telephones), information kiosks, Automated Teller Machines (ATMs) transaction machines, computers, ancillary equipment, software, firmware and similar procedures, services (including support services), and related resources.


Louisiana Tech University

• Settlement agreement with DOJ• Student filed a complaint alleging that faculty

member made use of an Internet-based application that was not accessible to blind userso Settlement agreement available at:

http://www.ada.gov/louisiana-tech.htm


http://www.ada.gov/louisiana-tech.htm

Louisiana Tech University

• Centerpiece of the agreement:“The University must implement a policy that requires the deployment of accessible technology and course content in the University setting. To that end, the University shall conduct a review of the accessibility of its technology and instructional materials and shall ensure that, from the effective date of and consistent with the Settlement Agreement, all technology, including websites, instructional materials and online courses, and other electronic and information technology for use by students or prospective students, is accessible.”


Note the Focus• The agreement targets current students,

incoming students and students seeking enrollment


If You Are All Virtual• Check out OCR settlement agreement with Virtual

Community School of Ohio• Compliance No. 15-11-5002, 62 IDELR 124 (OCR 2013)

• Although compliance review was of a K-12 public charter school, the language suggests, at least for public institutions, a sweeping read of obligations


What Standards Apply?

• Section 508 standards apply to federal agencieso Are the current versions outdated?

• Trend appears to be: WCAG 2.0 AA• But can you be confident?

o Actual language from a settlement agreement:• “The use of the Accessibility Standards by OCR does

not imply that conformance to Section 508, WCAG, and/or other electronic and information technology standard is either required or sufficient to comply with either Section 504 or Title II.”o Virtual Comm. Sch. of Ohio, 62 IDELR 124 (OCR 2013)


Pure Conjecture• From reading recent government settlement

agreements:o New websites will have a higher demand of accessibility

than existing and archived websiteso Primary focus is students

• Tip: Perhaps your initiatives should target new websites first


Kincaid Theory• If a campus offers virtual education, assume

universal design from the outset



Case Law Update


Test-Taking• Is test-taking a major life activity?• Two federal district courts have so concluded

pursuant to the ADA Amendments Act• Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D. Pa.

2013)• Doe v. Samuel Merritt Univ., 91 F.Supp. 2d 958 (N.D. Cal. 2013)


Admissions


Careful with Interviews

• Court concludes that applicant is entitled to jury trial

• Candidate for PhD school psychology program graduated magnum cum laude in 2.5 years

• Tied with highest GPA candidate and exceeded minimum GRE score

• Only candidate rejected in 7 member applicant pool, one of which had lower scores

• Candidate asserts 2 faculty member interviewers were more focused upon her Crohn’s disease than her qualifications


Reasons for Rejection• Court concludes that all five reasons asserted for

rejecting her application seemed belied by some evidence, sufficient for jury to decide

• SJÖSTRAND v. Ohio State Univ. 2014 WL 1663076(6th Cir. April 28, 2014)


Eligibility Criteria• The DOJ faulted a private college for denying a

student diagnosed with HIV the opportunity to continue in its Medical Assistant Programo The settlement agreement *suggests* that the College failed to engage

in an interactive processo The College agreed to remove a health questionnaire item asking

prospective students if they were “free of all blood-born pathogens such as HIV/AIDS”• Available at: http://www.ada.gov/gwinnett-col-sa.htm


Legal Analysis• An institution may not impose eligibility criteria

that screen out or tend to screen out individuals with disabilities unless necessary

• 42 U.S.C. § 12182(b)(2)(A)(i); 28 C.F.R. § 36.301(a); 28 C.F.R. § 35.130(b)(8)

o The ADA regulations contain an express provision authorizing the imposition of necessary safety criteria• 28 C.F.R. § 36.301(b); 28 C.F.R. § 35.130(h)


Failure to Accommodate Claims


Attendance• Student whose graduation was delayed due to his

failure to complete one course occasioned by his depression may have a claim against a college where a professor allegedly refused to alter his attendance policyo The complaint also asserts that the Department refused to permit

student to substitute credit from another course• Hershman v. Muhlenberg College, 2014 WL 1661210 (E.D. Pa.; April

24, 2014)


Not Reasonable• Court took no issue with university’s

documentation requirements and rejected former student’s suggestion that disability services officer should have contacted his health care provider

• Request to provide course syllabus and materials to student six weeks in advance of a five week course is per se unreasonable

• Rhodes v. Southern Nazarene Univ., 2014 WL 323251 (10th Cir. Jan. 30, 2014) (unpublished opinion)


Give Me a Break!• Failure to provide more than one break during

doctoral candidacy exam was not unreasonable when student did not request moreo PhD student in mechanical engineering suffered stroke and permanent

brain damage• Symptoms include seizures, chronic fatigue, dizziness,

sleeplessness, head rushes and leg pain


• Professor’s failure to explain student’s poor performance to other examiners as requested did not violate the ADA or RA

• Institute under no obligation to reschedule retake of exam when student failed to do so

• Professor's reluctance to assign tutor for computer code work when skill development available through on line tutoring did not violate ADA or RA; institute provided testing accommodations and breaks

• Institute did not violate ADA/RA for failing to identify a thesis advisor after student voluntarily dismissed the only two qualified faculty

• Institute did not violate the ADA or RA by requiring candidate to begin anew after taking a leave of absence; court grants academic deference

• McInerney v. Rennselear Polytechnic Institute, 2013 WL 5614263 (N.D.N.Y. Oct. 13, 2013)


The Breadth of the ADA

• Court embraces concept of “full and equal” enjoyment in concluding that medical school denied student effective accommodations to enable him to pursue his degree

• Argenyi v. Creighton University, 703 F.3d 441 (8th Cir. 2013)o Plaintiff also awarded his attorney fees, costs and expert

witness fees in the amount of nearly $500,000• 2014 WL 1838980 (D. Neb., May 8, 2014)


Discriminatory Treatment


It’s Not Just Academics

• Court dismisses former graduate student’s ADA and RA claims seeking to have a failing grade change in School of Education (something courts are reluctant to do) for failing to allege sufficient facts

• Student suffered stroke, brain damage and car accident paralyzing one side and cognitive functioning

• Despite earning high academic grades, she failed her student teaching in special education resulting in loss of scholarship


Proof Required• Plaintiff failed to show that defendants acted with

discriminatory animus, which is necessary when alleging disparate treatment (vs. failure to accommodate)• Marino v. CUNY (Hunter College), 2014 WL 1874855 (E.D.N.Y. May 9,

2014)


Dismissal


Knowledge is Key• In face of evidence that student falsified an email

to cover up his clinical attendance failures, court defers to academic decision dismissing student from programo School had no knowledge of student’s HIV status at time it took

disciplinary action• Roggenbach v. Touro College of Osteopathic Medicine, 2014 WL

1046697 (S.D.N.Y. March 8, 2014)


No Regarded As Claim• Second Circuit affirms dismissal of former

student’s regarded as claimso Based upon former ADA definition

• Student enrolled in associates Medical Laboratory Technology program

• Campus refused to permit him to participate in clinical rotation that required drawing of blood due to his hand-shaking

• Student dismissed from program due to falsification of documents• Widomski v. SUNY at Orange, 2014 WL 1362367 (2d Cir. April 8, 2014)


Retaliation


Test for Retaliation• Court rejects former student’s retaliation

allegations concluding that the “but for” test applies to such claims• Widomski v. SUNY at Orange, 2014 WL 1362367 (2d Cir. April 8, 2014)


Knowledge is Necessary

• Court rejects medical student’s claim of retaliation for asserting rights based on his HIV status

• Roggenbach v. Touro College of Osteopathic Medicine, 2014 WL 1046697 (S.D.N.Y. March 8, 2014)


Public Accommodation• Court refuses to dismiss claim of patron using

wheelchair claiming a denial of accessible seating at a concert under Title II of the ADA and the Rehabilitation Act

• Tatum v. Board of Supervisors Univ of La. System, 2014 WL 1250102 (E.D. La. March 26, 2014)

o Take aways:1. What is your campus’ protocol for accommodating patrons?2. How accessible are events open to the public?


Licensing Boards


Not Disabled & Not Reasonable

• Pediatrician with memory impairment who took and failed certification exam five times was not substantially limited in major life activities of test-taking or working; comparison group: most peopleo All test scores at least in average range

• Even if disabled, waiving the test, requiring Board to create an alternate test or permitting open book are per se not reasonable accommodationso Court grants Board academic deference

• Rawdin v. American Bd. of Pediatrics, 2013 WL 5948074 (E.D. Pa. 2013)o Case is pending in Third Circuit Court of Appeals


Nursing• Court dismisses candidate’s Title III claims that

Council should have provided a different test format and denied him an opportunity to appeal his score, which was negatively impacted due to computer glitcho Candidate failed to establish a causal connection between his dyslexia

and these reported failures• Turner v. National Council of State Bds of Nursing, 2014 WL

1303366 (10th Cir. April 2, 2014)


Medical Leave• Court concludes that medical school reasonably

accommodated student’s depression by granting him ten weeks of leaveo The school’s subsequent refusal to authorize two additional study

months to prepare for Step 1 of the USMLE medical exam was not unreasonable given its practice of demanding completion within one year (which it had already extended) and the year prior to his depression when he studied• Student produced no evidence that denial was disability-based

o Dean v. University at Buffalo Sch. of Medicine, 2014 WL 1316186 (W.D.N.Y., March 31, 2014)


Service AnimalsKeeping Your Animals Straight


The Basics• Has to be a dog or a miniature horse to qualify

o Hopefully that is obvious• Is supposed to be disability-related

o But can’t make one prove it• Is supposed to be trained

o But no quality control• Performs work or a task

o But you can’t make the individual demonstrate it


The Basics• Limited to two questions:

o Is it disability-relatedo What task or work has it been trained to perform

• If a dog: housebroken• May impose legitimate safety criteria necessary

for safe operation of program


• Any other type of animal does not qualify• No therapy or comfort dogs

o But be careful – not always clear

Not a Service Animal


Other Limitations• Individual or his/her handler is responsible• Generally, dog must be tethered unless such

would interfere with performance of work or task


Assistance Animals


Common Errors• It’s not just dogs• It’s not just therapy• No training required• It’s not just the dorm room

o It’s the “dwelling unit”• These animals fall under the Fair Housing Act

(FHA) and not the ADAo The two limited question dynamic does not existo The campus may require disability documentation

• The analysis is traditional: is the accommodation necessary and reasonable?


Leading Authority• University of Nebraska at Kearney(D. Neb. April

19, 2013) concluding that the FHA applies to residential dormitorieso Dog trained to distract student during anxiety attacks; but not a

trained service animal under the ADA• Available at: http://www.ada.gov/kearney_order.pdf

http://www.ada.gov/kearney_order.pdf


Thorny Issues• Allergies of other students• Fears of other students• Religious beliefs of other students• Damage to property or other persons• Leaving animals alone in dormitory rooms• Student confidentiality• How to tell the difference between a bona fide

service dog walking throughout campus and an assistance dog

81

Dogs-in-Training• Not protected by the ADA• But see State law

o E.g., court upholds right of nondisabled student to sue university for failing to allow her to have a service dog-in-training on campus based upon state law• Shumate v. Drake Univ. No. 12-0919(Iowa May 9, 2014)

Drummond Woodsum PTI 2014


Assistant Animal Tips• Collaborate with a range of campus stakeholders• Adopt at least an internal set of guidelines• Tread carefully – quite a bit of litigation around

animals and disabilities• Watch for state law: Some states expand

assistance animals beyond housing• Safety concerns: consider adopting guidelines

around legitimate safety considerations• Disruption: Campus has bona fide interest in

promoting climate conducive to learning


Thank You• For all you do for folks with disabilities and your

campus

Documents

From Guinea Pigs to Online Education