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V. Access

A school's provision of academic adjustments and auxiliary aids is of little good, of course, if it s facilities and programs are inaccessible to disabled students. The § 504 regulations state that handicapped students cannot be excluded from participation in a program because facilities are inaccessible or unusable by persons with disabilities. For existing facilities -- those where construction was commenced before June 3, 1977, the effective date of the regulation -- universities are required to operate each program or activity so that, when viewed in its entirety, it is readily accessible to handicapped persons. The regulation does not require that each existing facility or every part of the facility be made accessible to and useful by persons with disabilities. Each facility or part of the facility constructed after the effective date of the regulation, however, must be made readily accessible, and alterations to existing facilities must be made in such a manner that they will be made accessible to the "maximum extent feasible."

OCR has frequently cited schools where students are unable to "get in the door" or otherwise use campus facilities because of physical barriers, and the schools do not have written plans to address the problem. They have also cited schools, however, where students with disabilities are unable to obtain housing because of the limited number of accessible units, off-campus facilities used by university programs are inaccessible, or where physical education programs do not provide equal opportunities for students with disabilities.

A. Housing

1. Comparable, Convenient and Accessible

The § 504 regulations require that schools which provide housing to their non-handicapped students provide "comparable, convenient, and accessible housing to handicapped students at the same costs as to others." OCR has found that universities which provide some accessible housing may still violate § 504 when it is not sufficient to meet the needs of all disabled students who request it.

For example in Ferris State Univ. (MI) OCR held that the university had violated § 504 when it failed to provide housing to a wheelchair user admitted shortly before the school year began because no accessible units were available. OCR found that all non-handicapped students who submitted housing requests were provided housing. It also found that accessible housing units could have been made available to the handicapped student had the university moved a non-handicapped student from an accessible unit to another unit on campus. OCR concluded that the university's "failure to provide the handicapped complainant with housing, although it honored all non- handicapped students' requests for housing, was a violation of the Section 504 regulation at 34 C.F.R. 104.43(a)."

In Southern Illinois Univ. at Carbondale OCR cited the school for its failure to provide fully accessible housing to a student with cerebral palsy. Certain rooms in five of the university's residence halls had been structurally modified to a limited extent for mobility impaired students but did not meet the accessibility standards set forth in the American National Standard Institute Specifications for Making Buildings and Facilities Accessible to, and Usable by the Physically Handicapped (the "ANSI standards"). Two rooms in six other residence halls were fully modified to comply with the ANSI standards.

The university assigned the complaining student to one of the rooms that was not fully accessible because he did not have the ability to move independently between his wheelchair and the toilet, and was receiving assistance from a personal care assistant in transferring from his wheelchair. As a result, the student -- whose wheelchair could not fit in the passageway between his dorm room and the toilet/shower room -- had to be carried or dragged from one room to the other. After he complained about this to the university, he was assigned a fully accessible room.

OCR found, however, that

The University's practice of assigning mobility impaired handicapped students to on- campus housing without establishing the extent to which they can independently gain access to and use the housing facilities does not ensure that students are assigned to accessible housing. Thus, the University violated the implementing regulations of Section 504 at 34 C.F.R. 104.21, 104.22(a) and 104.45(a).

2. Assignment of Roommates

Providing accessible dorm rooms is not the end of a school s responsibility to provide disabled students with equal access to housing. Colleges and universities must also allow such students the same opportunities to participate in the roommate assignment process as other students.

In Coleman v. Zatechka the court found that the University of Nebraska's blanket policy prohibiting the assignment of roommates to students with disabilities who require personal attendant care violated both § 504 and the ADA. Coleman -- a student with cerebral palsy who used a wheelchair and required the services of a personal attendant to assist her with dressing, showering, and toileting -- completed and submitted a residence housing contract stating that she wanted a double room. Because she did not specify a particular individual to be her roommate, she expected that her name would be placed in the pool of roommate candidates and she would be randomly assigned a roommate by the school's housing department under its usual procedures. However, the school had adopted a policy stating:

Although the University will attempt to assign residence hall living accommodations to all students based on the choices made in a student's residence hall contract application, the University cannot always do so. In the case of students with disabilities or special medical considerations, double rooms will not be assigned if personal attendant service, nursing care, or trained animal assistance is required unless there is a mutual room request. . . . The University will provide a special grant to cover the difference between the double and single room rate for any student assigned to a single room as a result of this policy if the difference cannot be covered by a third party payer.

According to the school, its policy had been adopted in response to complaints from disabled students who expressed embarrassment at having an assigned roommate present during attendant care visits, and because of room change requests for assigned roommates who found themselves in a "less than desirable" situation. It was intended to accommodate the privacy concerns of disabled students and avoid the hurt feelings and administrative worries that followed the room change requests.

After the student filed the complaint challenging the policy, the university came up with two other justifications. First, it argued that, because of the space needed to turn a wheelchair in a typical dormitory room, a student with a mobility impairment would be using more than half the physical space in the room. Second, it argued that the three personal attendant visits required by the student would be unduly disruptive to another roommate. The court rejected both of these arguments as well as the university's initial justification.

With regard to the space utilization argument, the court first noted that there was no evidence that Coleman actually used more than half the space. Instead, it found that the university had simply made an assumption about this. This fell short of the ADA's requirement of an individualized assessment.

Second, the court noted that the university did not bar students who use wheelchairs but did not need attendant care from sharing double rooms with a non-disabled student. The university explained that in this instance it "expect[s] the roommate to yield some to the needs of other roommate for slightly more physical space. The roommates must after all share the room with each other." Finally, the court noted that the concern about equal space utilization was not applied to non-disabled students. The school would become aware of and act on the fact that a particular student was dominating room space only if the other roommate complained to the housing staff.

The court also rejected the argument that personal attendant visits would be too disruptive to the other roommate. The court found that roommates often had different schedules which meant going to sleep and waking up at different times. In addition, "all roommates, whether they have a disability or not, are confronted to some extent with frequent visitors that disrupt their solitude." Although attendant care visits may not be -- as the university argued -- "typical", there was no evidence that the roommates could not resolve any problems caused by such intrusions through the mutual compromise which was expected of all roommates.

Finally, the court rejected the university's argument that it did not want to "require" students without disabilities to room with students with disabilities who need attendant care because such a room assignment was perceived to be somehow "unfair". The court found that such a policy fostered the very attitudes and stereotypes about individuals with disabilities that the ADA was designed to eliminate. Accordingly, it ordered the university to amend its policy to allow students with disabilities who require attendant care the choice of either rooming alone or participating in the roommate assignment program.

B. Physical Education

Disabled students must also be allowed the opportunity to participate in physical education programs. Under the regulations, all students are presumed qualified to participate in regular physical education programs. Exceptions to this presumption may be made on an individual basis and require a substantial nondiscriminatory justification. Examples of such justifications found in OCR rulings include where a substantial modification would be needed or where there are documented health and safety concerns.

In Mt. San Antonio (CA) College OCR found a college had not violated § 504 and the ADA when it denied continued enrollment in a swimming class to a paraplegic. The school showed that the class was strictly designed to be a group activity class and that the student did not participate in the group activities. Instead, the student required individual instruction and assistance. The college further showed that other swimming courses and programs available to the student could better accommodate his desire to swim individually. Based on this, OCR found that the college had provided a legitimate nondiscriminatory reason for denying him continued participation in the swimming class.

In Rancho Santiago Community College (CA), however, OCR found a college had violated § 504 and the ADA when a student with a seizure disorder connected with epilepsy was not allowed to enroll in a volleyball course because the PE instructor was "afraid she would get hurt". OCR found that while PE instructors can make judgments about the skill level of a student, they are not qualified to make health and safety decisions about a disabled student. According to OCR, only a doctor or other disability expert knowledgeable about the individual student, his/her medical history, and the specific disability is qualified to assess health risks.

In response to this finding, the school submitted and OCR approved a remedial plan which stated:

Decisions based on skill level will be made by the coaches and/or physical education instructors on an individual basis. Decisions based on health and safety will be documented by [the school]. A student will be informed of the decision and given the opportunity to present a medical opinion by a physician with particular knowledge about the student and disability in question. Any decision to exclude a student based on health and safety, not supported by the physician's statement, may be made only after contrary objective medical evidence has been obtained from a qualified medical examiner at the expense of [the school] and a review by the Dean for the Physical Education/Athletics Division.

OCR also found the college had violated § 504 because of its failure to provide the opportunity to team-oriented sports in its adaptive PE program. The evidence showed that team- oriented sports were not offered, in part, based on generalizations and assumptions about the physical limitations of students who enroll in the adaptive PE program. While OCR emphasized that it did not expect the college to offer all the same sports to disabled as to non-disabled students, the total absence of team sports violated § 504's requirement disabled students have the opportunity to acquire the same basic underlying skills that is provided to non-disabled students.

In response, the college submitted and OCR approved a remedial plan which provided:

To the extent that [the college] operates separate athletic/physical education activities for disabled persons, it will include courses for the disabled which offer the same basic educational objectives as are offered to non-disabled persons. In particular, the athletic/physical education courses offered for disabled persons will include some sports that emphasize teamwork and interpersonal cooperation.

Other colleges and universities would be wise to adopt similar plans, and to thoroughly explain them to its physical education faculty. Such plans allow faculty to make decisions in their area of expertise -- athletic skill -- while deferring to the expertise of medical professionals in the areas of health and safety. This division of decision-making, coupled with the possibility of team sports, will allow PE a greater chance to develop positive coaching relationships with disabled students.

C. Internships and Off-Campus Facilities Which are Part of an Academic Program

The requirement that colleges and universities provide academic adjustments and accessible facilities does not end at their campus borders. As noted above, OCR held that a school needed to provide interpreter services for a deaf student in a study abroad program. It has also held that schools must provide academic adjustments in internship and student teacher programs and ensure that off-site facilities used for academic programs and graduation exercises are accessible.

In San Jose State Univ. (CA)OCR held that a school had violated § 504 and the ADA by failing to provide academic adjustments to a student in an internship. The student was enrolled in a bachelor's program in social work which included a four-unit internship field assignment.

The county official who served as the student's internship advisor was seldom at the intern work site during the workdays assigned for the student. The student was to make his needs known to the official's secretary, who was designated as the official's on-site coordinator during her absences. The secretary was told of the student's learning disabilities, but while the official was absent refused to accommodate LD-related difficulties at the intern site.

The secretary gave the student's regular computer and normal work space to another person and reassigned him to a new work space with a different model computer. This computer had a totally different keyboard, and the student told OCR that because of his LD he was unable to program the project data using it. In addition, the new work space was in a different location with inadequate light and more noise distraction. When the student informed the secretary that his LD was making it impossible for him to use the new computer and asked to use his regular computer, she told him that he was lazy and did not want to learn. She refused to return him to his regular computer and work space.

The secretary notified the county official of the incident and the latter wrote a letter to the student criticizing him for discussing his need for accommodation with the secretary. In addition, the letter questioned the reasonableness of continuing the internship, and set forth ten requirements the student had to agree to meet in order for his internship to continue. The student's university advisor attempted to set up a meeting with the county official, to discuss the proposal without success, and the student -- who had completed 176 of the required 240 hours for the internship -- was given a "no credit" for the class.

The county official told OCR that she had received no training from the university regarding how to deal with disabilities, and that the university had not told her the student had disabilities. When the student told her of his learning disabilities, she asked various university personnel if they knew about the student's learning disabilities. She was told that they would check on his status, but never received a response to her inquiry.

The county official told OCR that while she had heard of § 504, she did not know what it required of an employer. She noted that she did not know the specifics of the student's LD when she denied his request to take work home to place on an optical scanner because she wished him to learn how to do the project on equipment at the work site. When informed of the nature of the student's disability, she blamed herself for encouraging her secretary to ignore him when he requested adjustments for his LD. She stated that it would have been helpful to have had some technical assistance from the university in working with the student.

Based on these and other statements, OCR concluded that academic adjustments or accommodations clearly needed to be offered to the student for him to successfully conclude his internship and complete the course. Failure by the county official, who was under contract to the university, to provide the needed accommodations violated 34 C.F.R. §§ 104.44(a) and (d).

Moreover, OCR found that the university had a responsibility for providing guidance to the county official regarding the provision of academic adjustments or accommodations for students with learning disabilities. Its failure to provide such guidance and oversight denied the student a meaningful opportunity to participate in violation of 34 C.F.R. § 104.4(b)(1)(i).

Finally, the university violated ?.43(b) by turning a part of the student's education over to an individual that it had not adequately prepared or trained to assist the student. OCR concluded:

It is meaningless for an institution to make internship opportunities off-campus available to students without ensuring that those internships are, in fact, accessible through accommodations to qualified students who require special assistance. It is discriminatory under Section 504 and Title II for the University to have not taken steps to assure that the complainant in this case would receive an opportunity to succeed equal to that of non-disabled students.

The lesson from San Jose State for other schools is that the need for academic adjustments must be communicated not only to the regular faculty but also to those who supervise students off- campus educational experiences. Colleges and universities with such internship programs should make sure that those supervising students in them know of their disabilities and the types of academic adjustments or auxiliary aids which they may require.

VI. Miscellaneous

Two cases recent cases illustrate that schools' concerns regarding their dealings with disabled students should not be limited to the question of whether they have provided reasonable accommodations and auxiliary aids to an otherwise qualified student. Schools must also be careful how they speak with students about, counsel them on, and inform others of their disabilities.

In Rothman v. Emory Univ. the plaintiff, who had a seizure disorder and had taken anticonvulsive medications since 1974, alleged that the Dean of Students repeatedly summoned him to her office during his first semester at the Emory law school. She often told him that he looked unhappy and urged him to seek psychological counseling. In addition, Rothman alleged that she asked intrusive questions about a professor, did not ask him whether he required any exam accommodations due to his seizure disorder or his medications, and urged him to drop out of law school after he received a failing grade in a class.

In the spring of 1990, the Dean of Students and another professor delayed a decision on whether Rothman had to retake the failed course, pending his performance in a follow-up course. Also that spring, another professor threatened to remove him from a course because, as Rothman conceded, he was often unprepared for class. When Rothman later sought an extra hour of exam time from this professor, the professor granted him only half an hour, and then in adverse circumstances -- other students who had completed their exams were talking, leaving the classroom, and studying as Rothman attempted to complete his exam.

That summer, the Dean of Students told Rothman that he could not get exam accommodations in the future unless he updated his medical information (the prior letter was from December 1987), and that he had a bad approach to law school. She also denied his request that the low grade received in the class where only the limited accommodation was provided be removed from his transcript.

After further run-ins with the Dean of Students and a professor, the professor wrote a confidential memo stating that Rothman should be required to seek psychological counseling. And, the Dean of Students told Rothman he should adjust his medication in order to enhance his academic performance. There is no indication that either of these occurred, and Rothman graduated from the law school in May 1992 in good standing.

Rothman brought suit alleging, among other things, that Emory's treatment of him violated both § 504 and the ADA. The court found that, while it appeared that Rothman had suffered little harm because he had graduated from law school and been admitted to the bar, he had sufficiently stated claims under both statutes. Specifically, it found that Rothman's allegation concerning the Dean of Students' persistent "intermeddling" was in essence a claim of a hostile environment like that recognized in the sexual harassment context.

The Rothman court also held that the school could be held liable under the ADA because of the way it had informed a professional licensing body about the student's disability. The school certified Rothman s application to the Illinois bar but forwarded a letter to the bar examiners marked "confidential" which stated that he was at times "openly hostile" to students and faculty, had received counseling from the Dean of Students for hostility, and that his conduct was due to his "chronic epilepsy." This letter led to an interview by a bar representative, but had no adverse impact on his application as Rothman was admitted to practice on November 1992.

The court found that the letter of recommendation sent to the bar examiners constituted a "service" and "privilege" under the ADA. It further stated that if Rothman could show that he was given a bad, or qualified, recommendation purely because of his disability, or in retaliation for his complaints about the law school's allegedly discriminatory policies, then the professor's actions in writing the letter would be in violation of the ADA.

Wood v. President & Trustees of Spring Hill College also shows that students who do not believe they have been treated with sensitivity can come back to cause a school major headaches. Wood and her mother visited the Spring Hill campus on January 6, 1989, for the purpose of enrolling at the college. During their visit, an admissions counselor told Wood that she was admitted, and the college later confirmed this by a letter. Wood moved into a dormitory room on January 8, registered for classes the following day, and attended classes from January 10-13, 1989. She then withdrew from classes. Wood alleged that her withdrawal was in fact a constructive dismissal. She alleged that the college began treating her in a hostile manner upon learning that she had been diagnosed as a schizophrenic. She stated that she was made to feel so unwelcome at Spring Hill during her week there that she felt compelled to withdraw.

Spring Hill claimed that the only action it had taken regarding Wood was to encourage her to defer her admission until the fall semester so that she could take Spring Hill's remedial summer classes. The college asserted that this action was motivated solely by its discovery that the admissions counselor had erred in admitting Wood. The college had learned only after her admittance that of 22 college level courses that Wood had previously enrolled in, she had successfully completed only 6. She had flunked or received unsatisfactory marks in four other classes, and withdrew from the remaining 12 before she completed them. Despite its mistake in admitting Wood, Spring Hill claimed that it was prepared to honor its admissions decision at all times, and even held a position open for Wood in its summer and fall programs.

Wood's case alleging discrimination under § 504 eventually went to a jury, which found no violation on the part of Spring Hill. This decision was affirmed on appeal.

While the college was ultimately successful in Wood, the experience of going through a trial and appeal is undoubtedly one most schools would like to avoid. They can attempt to do so by treating students with disabilities with sensitivity, and by specifically informing them of the school's concerns and both parties rights and responsibilities under § 504 and the ADA, preferably in writing. This will show the student that the school is making a good faith effort at accommodation, and, in case of future litigation, provide strong evidence of nondiscriminatory intent.

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