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.