DISABILITY Heyward, Lawton ACCOMODATION & Associates DIGEST P.O. Box 357 Summer 1995 Narragansett, RI 02882 Sample Issue 800-525-9220 Faculty Members and Service Providers: Professor A refuses to sign the standard accommodation form the University uses to ensure that a) the needs of the students requesting accommodations are clearly communicated to their professors and b) faculty members are informed of the responsibility to provide accommodations and advised of the proper officials to contact should they have questions regarding the legal mandates ancvor the recommended accommodations. Professor A states that, while he is not adverse to offering assistance with respect to the provision of accommodations to students, his signature on the form could be construed as his assuming full responsibility for the provision of accommodations which is an institutional responsibility not his. Professor B is informed of a student's accommodation needs and agrees to provide the student extended time on tests. However, by the time he gives the first exam he has forgotten the accommodation request and fails to provide extended time even after he is reminded by the student of his agreement to do so. Professor C advises a student who is a wheelchair user to drop her Biology lab because the tables are too high and the lab equipment is not accessible. She suggests that the student enroll in physics because their labs provide greater access. Professor D refuses to provide extended test time to a student with a learning disability. The professor ex- presses the opinion that extended test time should never be provided as an accommodation because it is unfair to other students in the class. She argues that it is by no means a reasonable accommodation and being forced to provide it is a direct attack on the academic integrity of the institution. The situations outlined above are actual and cogent examples of the controversial nature of the relationship between faculty members and the very institutions that employ them regarding classroom accommodations. There is a battle being waged in which students with disabilities are frequently the victims. It is becoming increasingly difficult for disability service providers to ensure that a) students are properly accommodated and b) institutions fully comply with federal statutes and regulations. In their compliance efforts institutions are, in essence, being held hostage by administrative systems that demand too little accountability from the faculty, provide too little support to service providers and require too little active enforcement by top level administrators. Further, postsecondary institutions have been much too slow in recognizing and responding to the fact that the passage of the ADA has ushered in a much more adversarial environment with respect to such controversies. Institutions hoping to avoid costly and extensive litigation must modify their administrative systems so that they have the ability to quickly and effectively resolve these controversies. Faculty Members are not Independent Contractors Faculty members must accept that being employed by institutions that have compliance responsibilities under federal statutes and regulations means that their employment is condition upon their assisting those institutions in satisfying their compliance obligations. There is a shared responsibility because the provision of academic adjustments to students requires the par- ticipation of those who are employed to teach. Further, it is extremely important for faculty members to understand that there have been several judicial decisions in which persons who have improperly denied services, benefits and opportunities to individuals with disabilities have been held to be personally liable for those discriminatory acts. As noted by the court in Howe v. Hull, 873 F.Supp. 72,77 (N.D.Ohio 1994): "An individual may be subject to personal liability under the ADA. Given the broad language and remedial purposes of the ADA, allowing individual liability in some circumstances... is consistent with both the plain language of the statute and congressional intent. To hold differently would allow individuals with both the authority and the discretion to make decisions based on a discriminatory animus to violate the ADA with a degree of impunity not envisioned by Congress." Further, the court outlined the circumstances under which individuals may be held personally liable as being: "...where (a) he or she is in a position of authority; (b) within the ambit of this authority he or she has both the power and discretion to perform potentially discriminatory acts; and (c) the discriminatory acts are the result of the exerise of the individual's own discretion, as opposed to the implementation of institutional policy or the mandates of superiors." [See also U.S. v. Morvant, 843 F.Supp. 1092 (E.D. La. 1994)] Thus, faculty members who insist upon taking unilateral action and/or placing themselves directly at odds with institutional policies and mandates regarding the delivery of services to students with disabilities may risk being held personally liable for any resulting violations of federal statutes and regulations. Philosophical Debates are Meaningless Frequenty faculty members object to providing accommodations on purely philosophical grounds. Objections such as 'it is unfair to nondisabled students, this law is forcing us to lower academic standards and violates academic freedom, it's too expensive and/or inconvenient, and these students simply are not qualified to operate in the postsecondary environment" are common ones. These arguments reflect a) the very biased and discriminatory attitudes the law is intended to eliminate; b) a lack of understanding regarding legal mandates and institutional respon- sibilities; and c) a misguided belief that the principle of academic freedom justifies decisions that are discriminatory. Further, they divert people's attention from the subject of the specific accommodations that should be provided to a particular student and instead involve them in a general debate regarding the issue of whether and how equal opportunities should be provided to individuals with disabilities as a class. The question of how we should address the equity issue regarding individuals with disabilities as a class has been answered by the passage of federal and state laws to protect their rights. In essence, the existence of these statutes and regulations make such philosophical discussions a meaningless exercise. Faculty members raising such objections should be reminded that the compliance standards in question are not new and have, in fact, been around and fully enforced since the fat- ter part of the 1970's. Do faculty members have the right to raise objections? Certainly, they do. The nature of the demands presently being placed on the academic environment has given rise to some legitimate conerns. Specifically, it is becoming more and more difficult to provide uniform classroom instruction in the face of the ever increasing number of students with disabilities entering postsecondary insti- tutions and the ever increasing complexity of accommodation requests. Further, more accommodation re- quests that clearly bring the academic integrity of educational programs into question are being made while at the same time faculty members are feeling that their input is being solicited less and their opinions carry less weight. Examples of the type of accommodation requests that faculty members have expressed concern about include: the provision of individualized instruc- tional services (a professor is asked to provide a copy of his/her lecture notes with explanations to a student); the granting of waivers or exceptions for program/course requirements and alterations of classroom instructional style or course structure. What are legitimate objections under the law and what is the proper way to frame such objections? A paraplegic enrolled in a swimming class which was designed for group instruction and activity. The student was unable to participate in group activity and requested individual instruction and assistance. The college refused to permit the student to participate in the class because the instructor was not able to lead group activities and instruct the student individually at the same time. The federal enforcement agency (OCR) upheld the Gollege's decision noting that "modifying [the] class to provide individual instruction to the complainant would fundamentally alter the nature of the class program." (See Mt. San Antonio (Ca)2 College, 5 NDLR 387) OCR has also held in recent rulings that a postsecondary institLAion(s) was not required to permit a student to enroll in courses without taking necessary prerequisites; provide an extension of time to a student who failed to request it in a timely fashion; provide a private tutor or admit a student who failed to meet program requirements regarding the ability to write and work independently. (See California State University, San Bernardino, 5 NDLR 38; Oregon State University, 5 NDLR 220; Northern Arizona University, 5 NDLR 284; University of Oklahoma, 5 NDLR 116) Thus, both court decisions and agency rulings make it clear that requests of students need not be provided under the following circumstances: 1.the student is not qualified; 2.the accommodation would result in a fundamental alteration of the program; 3.the institution is being asked to address a personal need; or 4.the accommodation would impose an undue financial or administrative burden. Thus, faculty members who wish to object to the accommodation requests of students must ensure that their objections involve one of the legitimate factors listed above. However, an assertion that one of these factors applies to the situation is not in and of itself sufficient. Those wishing to challenge accommodation requests must also establish that the specific skills and abilities of the particular student were taken into account; the identified factor does in fact reflect legitimate concems regarding the particular situation and a good faith effort was made to provide access to the student. Students also Contribute to the Problem Jane goes to each of her professors and advises them that she has a disability and requests that she be permitted to tape record classes, given extended test time and provided note takers. Three of her professors agree to her requests and two of them refuse. Despite her awareness of the university policy that requires that she submit documentation and her specific requests to the Disabled Students Services (DSS) office, Jane does not follow that policy. Further, even though the DSS office provides written instructions to the faculty advising them to refer students making such requests to the office, none of the professors contacted by Jane refers her to DSS or call the office themselves to seek guidance. Jane subsequently sues the university asserting that her professors did not provide her with proper accommodations. What is the university's obligation to a student who fails to follow it's procedures? Postsecondary institutions have an obligation under the law to 1) put procedures in place to adequately respond to requests for accommodation, 2) develop a program of services for students with disabilities and 3) provide notice to all interested parties of the existence of the program, its location and the identity of the person to contact to obtain information and services. Students also have obligations. Specifically, once the institution puts reasonable procedures in place students must comply with those procedures in making their needs known and requesting specific accommodations. The institution has a right to insist that students follow well publicized procedures as a condition for receipt of services. [See Lewis and Clark College (OR), 5 NDLR 248; National University (CA), 5 NDLR 82-1 and Madison Area Technical College, 4 NDLR 38] The fact that Jane informed her professors of her need does not automatically relieve her of her responsi- bilities and shift the burden to the university. OCR has ruled that if an individual has access to institutional publications that thoroughly described it's program of services the mere fact that an uninvolved institutional employee is informed of the individual's disability and does not notify the individual of who to contact for services is not a violation of the law. (See Fort Hays State University, 4 NDLR 17) Thus, individuals with disabilities are expected to appropriately respond to the information which is made available to them. The more difficult question for institutions is whether the fact that they involve faculty members as participants in the provision of services to students with dis- abilities makes faculty members responsible for ensuring that students who provide information to them and/ or request services are referred to the appropriate office. Certainly, in situations, as described above, in which university procedures require professors to refer students, such as Jane, to the proper office, it would be extremely difficult for the university to argue that Jane's professors had no duty to act. OCR has ruled that the student's notification of need may, depending on the circumstances, be provided to the Section 504/ADA coordinator, the appropriate dean, a faculty advisor, or a professor. Given the rising number of cases in which students are asserting that faculty members are denying them ac- commodations, it would be wise for institutions to develop regular reporting procedures for their faculty to ensure that the appropriate officials are informed of requests that are made directly to faculty members. Such procedures, if prooeriy monitored and enforced, could protect the institution from being held responsible for the unilateral acts of individual faculty members and impress upon faculty members the importance of involving all necessary parties in accommodation decisions. The Compliance Process Must Involve Administrators Administrators were lulled into a false sense of security with respect to their compliance obligations undersection 504. The environment was very different under Section 504: students and parents were less adversarial; OCR's enforcement practices were not as stringent and punitive; and the risk of litigation was minimal. Operating in that environment meant that the consequences of inattention to compliance issues were not so serious. The environment has changed dramatically under the ADA and postsecondary institutions are reeling from the new confrontational environment. Institutions that wish to avoid extensive and costly litigation must become more efficient at managing compliance under Section 504 and the ADA. One of the biggest mistakes that administrators make is failing to recognize the importance of fostering con- ditions that will create a positive, productive climate for interactions between faculty members, service providers and students. Many institutions simply permit this crucial relationship structure to develop haphazardly. Such an approach is fine as long as all of the participants are reasonable and committed to resolutions that property balance legitimate academic concerns against the responsibility to provide access to students with disabilities. Unfortunately, what usually occurs when the participants are not reasonable is something akin to open warfare with the participants frequently adopting a win at any cost mentality. The steps that administrators should take to create a proper compliance environment include: 1. Providing strong, visible and clear support to the Disabled Student Services Office: Failure to provide such support often results in the service provider(s) being left at the mercy of faculty members who will endlessly challenge the authority of someone who is viewed as not being a part of the academic system and not properly respectful of the vanguards of that system: academic standards, academic freedom and academic integrity. Service providers must be afforded visible support from a quarter that the faculty will respect, i.e., the chief academic officer. For example, a representative of the Provost's office could be given direct responsibility for assisting the service provider(s) in resolving disagreements regarding the provision of accommodations to students. The relationship between the service provider(s) and the chief academic officer, should be presented to the institutional community as a partnership to ensure compliance. An institution that is not willing to provide such support to its Disabled Student Services Office should not require the service provider(s) to act as a referee regarding conflicts that arise between students and faculty members. A more effective approach, under such circumstances, would be to form a committee of individuals representing all interested constituencies to resolve such conflicts. 2. Eliminating unilateral decision making regarding the delivery of services: The community should be informed that all decisions regarding the provisions of academic adjustments should a) strictly adhere to institutional policies and procedures and b) involve personnel from the DSS office. It should be made clear that no one has the authority to exclude the service provider(s) from the process and unilaterally deny accommodations to a student. In addition to providing training regarding institutional policies and procedures, written guidelines should be provided to the faculty and others involved in the delivery of services to Students that clearly outline their rights and responsibilities. An interactive reporting procedure should also be adopted to encourage individuals to develop a relationship with the DSS office. 3.Developing an effective monitoring system: Too many institutions depend on individuals with disabilities to alert them to problems with their compliance system as their primary form of monitoring. All compliance procedures should include monitoring provisions that require a regular assessment of the effectiveness of the system and ensure that modifications are made when thev are warranted. Further, direct and quick action should be taken to address violations of institutional policies and procedures. This must include holding individuals accountable who improperly deny accommodations to individuals with disabilities and/or are guilty of discriminatory behavior.