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Providing Reasonable Accommodations To Qualified Students With Disabilities: The Faculty Member's Role

1. The Legal Framework
   
   
1. Statutory Mandates

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act ("ADA") prohibit universities from discriminating against qualified students with disabilities. In relevant part, Section 504 states that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. §794(a). Titles II and III of the ADA make similar guarantees for public services and public accommodations which public universities are required to follow. 42 U.S.C. §§12132 and 12182(a). The ADA defines discrimination to include "a failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford . . . services . . . to individuals with disabilities unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the . . . services." 42 U.S.C. §12182(b)(2)(A)(ii). Universities are obligated to provide reasonable accommodations.

2. Regulatory Measures

The federal agency which has delegated authority to enforce Section 504 and Sections II and III of the ADA is the U.S. Department of Education, Office of Civil Rights ("OCR"). OCR's implementing regulations to Section 504 require institutions to make modifications to their academic requirements so as not to discriminate against the disabled. "Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaption of the manner in which specific courses are conducted."34 C.F.R. §104.44(a). In its Analysis of Final Regulations, OCR provides as an example of a course substitution allowing a deaf student to substitute an art appreciation or music history course for a required course in music appreciation. 34 C.F.R. Part 104, Appendix A, 31. However, "this requirement does not obligate an institution to waive course or other academic requirements . . . . It should be stressed that academic requirements that can be demonstrated by the recipient to be essential to its program of instruction or to particular degrees need not be changed." Id.

An institution is also required to provide auxiliary aids to students with impaired sensory, manual, or speaking skills. The term "auxiliary aids" is defined to include "taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions." 34 C.F.R. §104.44(d)(2). Some types of auxiliary aids and services include:

notetakers assistive listening devices

talking caculators raised line drawing kits

Braille keyboards voice synthesis software

readers screen magnifier

http://www.ed.gov/ocr/docs/auxaids.html

In investigating complaints of discrimination against universities, OCR views a "reasonable accommodation" to be one that is "effective." Effectiveness of service is measured by timeliness of delivery, accuracy of translation, and provision in an appropriate manner and medium.

3. University Policies

It is the policy of NC State to prohibit discrimination on the basis of disability. We have a similar prohibition on disability harassment. See Administrative Regulations attached as Exhibit A. Annually, the University, through the Provost's Office, issues a statement to faculty regarding responsibilities for providing reasonable accommodations. See copy attached as Exhibit B. In addition, the University's Academic Regulation on Course Syllabus, Exhibit C, requires that each faculty member include the policy on working with students with disabilities.

Disability Services for Students ("DSS") is the unit on campus delegated with authority to ensure that the University is meeting our obligations under the ADA and Section 504. Students with disabilities who seek reasonable accommodations must first register with DSS. DSS makes determinations regarding whether a student is disabled and the appropriate accommodation(s) required. Dr. Cheryl Branker is the Director of DSS (513-3768). The DSS web page has numerous sources and information, including a Faculty and Staff Desk Reference Guide (Exhibit D). http://www.ncsu.edu/equal_op/ada/

2. Student Complaints Against NC State University

In 1998 and 1999, three students filed complaints with OCR alleging that the University had discriminated against them on the basis of their disabilities. Two of the students are blind and the third student has a visual impairment.

Student A claimed, among other matters, that the University failed to provide accessible campus notices and publications to him and failed to provide him with comparable computer access, particular the Internet. He uses voice synthesis software and audio tapes as his primary means of accessing information. As a result of our alleged failure to effectively accommodate his disability, he claimed that he was forced to take a reduce course load each semester.

Student B's primary complaint was that the University failed to provide her with tests, homework assignments, syllabi, online courses, web pages, and textbooks in accessible and timely formats. She uses as her primary means of communication braille and audio tapes. Because of the delay in brailling homework assignments, class overheads, tests, and other course materials, she claims that she was unable to complete her work in a timely manner and was forced to take incompletes in her courses.

Student C claimed that a department created a hostile environment for him to learn as the faculty allegedly resisted providing him with reasonable accommodations and one faculty member allegedly called him "stupid and ignorant." This student needs the use of white boards and markers, enlarged texts, and course materials in a font of at least 18 point. He claimed that we did not provide the course materials in a timely manner, and he challenged one of his grades as a result.

The University denied that we discriminated against these students. In investigating these complaints, OCR conducted two on-site visits, interviewed faculty involved, other students with and without visual impairments, University officials, and reviewed evidence submitted. OCR made no determination of any violation of Section 504 or the ADA. The University and OCR entered into an Agreement to Resolve the complaints, a copy of which is attached as Exhibit E.

3. OCR Findings and Federal Case Law

A. Textbooks and Other Course Materials

OCR considers text books to be "a core component of the post-secondary academic curriculum. A course-assigned textbook is customarily the primary reference tool upon which the student is expected to rely. Moreover, the content structure of the course is often closely correlated to the textbook such that it is difficult to actively learn and participate in the classroom if the student is unfamiliar with the assigned textbook material. Finally, through examinations the student is ordinarily held accountable for knowing the information in the assigned portions of the textbook." Letter of Finding for City College of San Francisco, (OCR Docket No.: 09-97-2145)

For students with visual impairments, alternative formats of textbooks and other written course materials is a necessity. Example of alternative formats include Braille translation, electronic versions, audio tapes, and readers.

B. Web Accessibility

As more information is being placed on the Internet and more faculty are placing course materials on the web, the issue of web accessibility is presenting a challenge for universities to provide course content in an appropriate format for students with disabilities, particularly those with vision and hearing impairments. Title II of the ADA requires public universities to take appropriate steps to ensure that communications with persons with disabilities are as effective as communication with others. "OCR has repeatedly held that the term 'communication' means the transfer of information, including but not limited to the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet." OCR Decision in California State University - LA (complaint no. 09-97-2002), 1997 NDLR Lexis 535 (1997).

Accessibility of web pages not only impacts students with visual impairments, students with hearing impairments, and students unable to use a mouse, but it also impacts students with dyslexia and attention deficit disorder. The choice of colors and typefaces and the page layout can affect the reading ability for persons with learning disabilities. A web site's ease of navigation accommodates those persons with mobility impairments who may have difficulty using a mouse. Currently, speech synthesis software has difficulty reading symbols, graphs, and photographs. Accordingly, web site design is critical to accessibility.

NC State has several resources available on campus to advise you on developing accessible web sites. The starting place is a URL developed by Terry Thompson, Coordinator of Assistive and Information Technology (513-3556):

http://www.ncsu.edu/it/dss/webaccess/html

C. Course Substitutions/Waivers as Reasonable Accommodations

The starting point for examining whether a course substitution is a reasonable academic adjustment begins with the Supreme Court's pronouncement that "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). Davis, a hearing impaired student who could only understand speech by lipreading, was denied admission to the nursing program on the basis of her disability. The College found that it would be unsafe for her to practice nursing. Davis had proposed that she be allowed to take the academic courses but be excused from participating in the clinical training program. The Court held that such a program waiver constituted a fundamental modification and was not the kind of academic adjustment required by Section 504. Id. at 411.

In 1989, the Sixth Circuit decided the issue of whether a course waiver was a reasonable accommodation in Doherty v. Southern College of Optometry, 862 F.2d 570 (1989), a case under Section 504. Doherty suffered from retinitis pigmentosa and associate neurological conditions. A required course, the pathology clinic, included a proficiency requirement which required students to perform techniques on various instruments. Due to his disabilities, Doherty claimed that he was unable to perform the techniques on four of the required instruments: the Zeiss 4 mirror gonoscope, the Goldman 3 mirror gonioscope, the Binocular Indirect Ophthalmoscope, and the Schiotz Tonometer. As a result, he requested that he be allowed to waive that portion of the course requirement. The College refused but gave him an additional semester to practice the techniques. Despite this extension, he again failed the proficiency requirement and was denied a degree.

Relying on Davis, the Sixth Circuit upheld the College's refusal to waive the academic requirement:

[R]efusal to waive the clinical proficiency requirement was not a failure to reasonably accommodate the plaintiff. Although [the College] had a limited obligation to make reasonable accommodations for handicapped individuals such as plaintiff, it is clear that "nothing in the language or history of §504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program." [citation omitted] An educational institution is not required to accommodate a handicapped individual by eliminating a course requirement which is reasonably necessary to proper use of the degree conferred at the end of a course of study. Waiver of a necessary requirement would have been a substantial rather than merely a reasonable accommodation.

862 F.2d at 575.

The federal district court for Massachusetts examined foreign language course substitutions in depth in Guckenberger v. Boston University, 974 F. Supp. 106 (D. Mass. 1997)("Guckenberger I"). In that case, several students with learning disabilities filed suit against Boston University under Title III of the ADA and Section 504. In order to graduate, Boston University required all students in its College of Arts and Sciences to take four semesters of a foreign language and two semesters of math. Starting in 1995, its president instituted an across the board policy that prohibited course substitutions for foreign languages and math. The plaintiffs claimed that Boston University was legally required to provide course substitutions as reasonable accommodations. Id. at 117-18.

Before having a blanket policy refusing to change course requirements, the University had an obligation to decide whether course substitutions in math and foreign language are reasonable accommodations. Id. at 119. Once a qualified student with a disability requests a course substitution as a reasonable accommodation, the institution must decide whether the requested modification would amount to a fundamental alteration. For guidance in assessing the institution's statutory obligation for providing reasonable accommodations, the court relied on a test articulated by the First Circuit in Wynne v. Tufts University School of Medicine, 932 F.2d 19, 25 (1st Cir. 1991):

If the institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternative would result either in lowering academic standards or requiring substantial program alteration, the court would rule as a matter of law that the institution had met its duty of seeking reasonable accommodation.

The court found fault with Boston University's unilateral and unsubstantiated decision to prohibit course substitutions. In making its policy, the University president had failed to consult with any experts on learning disabilities, with faculty in the foreign language department, other relevant professors, and other college officials:

[President] Wesling's reliance on stereotypes, together with his failure to consider carefully the effect of course substitutions on BU's liberal arts programs and to consult with academics and experts in learning disabilities, constitutes a failure of BU's obligation to make a rational judgment that course substitutions would fundamentally alter the course of study. Although BU ultimately has the right to decline to modify its degree requirements - and that decision will be given great deference - it must do so after reasoned deliberations as to whether modifications would change the essential academic standards of its liberal arts curriculum.

Guckenberger I, at 149. The court ordered Boston University to develop and to undertake a deliberative process for considering whether modification of its foreign language requirement would fundamentally alter the nature of its liberal arts education. The Court required the creation of a committee composed of professors to study its degree requirements, with the committee's recommendation subject to the approval of the president. Id. The Court stated that it would give great deference to the committee's recommendation since degree requirements go to the heart of academic freedom. Id. at 148

The University chose to use an existing committee on campus, the Dean's Advisory Committee, to review the course substitution issue. That committee was composed of eleven faculty, including professors from mathematics, English, philosophy, natural sciences, engineering, and foreign languages. Guckenberger v. Boston University, 8 F. Supp. 2d 82, 86 (D. Mass. 1998)("Guckenberger II"). The committee met on seven occasions over a span of two months. For one meeting, they solicited input from students, both disabled and not, as required by the court order. The other meetings were closed, except for one which had legal counsel present. Id. At the conclusion of the deliberative process, the committee submitted an eight page report to the University president. It found that "'knowledge of a foreign language is one of the keys to opening the door to the classics and so to liberal learning. It is not the only key, but we do judge it as indispensable." Id. at 91. Based on the committee's professional and academic judgment, it recommended "against approving course substitutions for any student as any alternative to fulfilling the foreign language requirement." Id. at 87. The president accepted the recommendation.

In reviewing the deliberative process, the district court's sole inquiry into the matter was whether Boston University satisfied the Wynne test, which required: "(1) an indication of who took part in the decision and when it was made; (2) a discussion of the unique qualities of the foreign language requirement as it now stands; and (3) a consideration of possible alternatives to the requirement." Guckenberger II, at 87.

The court found that Boston University met all three parts and satisfied the "reasoned deliberation" required. First, the committee was composed of faculty in several disciplines. They allowed input from students about the requirement. Second, the committee discussed the importance of foreign language as part of a liberal arts curriculum and the educational gains in learning foreign languages. The committee discussed how the study of foreign languages contributed to the multi-culturalism of the campus. Finally, the committee considered and discussed alternative courses but dismissed them on the basis that "'no content course taught in English can substitute fully for the insider access to other cultures - with its attendant invitation to thoroughgoing critical self-awareness - that is the hallmark of foreign language study.'" Id. at 88. In addition, the committee took notice of the fact that the University provided tutoring (one on one instruction), taped lectures, distraction free testing rooms, replacement of written with oral tests, and untimed examinations which were accommodations in themselves for all courses, including foreign languages.

Since the University met the Wynne test, the court refused to substitute its judgment for the professional, academic judgment of the faculty and deferred to the committee's decision. "This Court concludes that so long as an academic institution rationally, without pretext, exercises its deliberative professional judgment not to permit course substitutions for an academic requirement in a liberal arts curriculum, the ADA does not authorize courts to intervene even if a majority of other comparable academic institutions disagree." Id. at 90.

4. What can You do to Make Learning Accessible?

When ordering text books, ask the publisher if they have books available in alternative formats (electronic, braille, audiotape). If the answer is no, see if another publisher has a similar text book which is available in an alternative format. For instance, McGraw-Hill Publishers has an online testing system which correlates with its textbooks.

When designing web sites or placing course materials on the web, begin with an accessible web design.

Have your syllabus, handouts, and other course materials, including library reserve materials, completed prior to the start of the semester. It takes time to convert some of these materials into alternative formats. The more time that the University has in brailling overheads, reading books onto tape, etc. the better able we are to provide accommodations which are timely and effective.

Determine the essential functions of your course (e.g. attendance, format of tests, readings).

If you have any questions regarding your obligations to provide a reasonable accommodation to a particular student, contact DSS immediately. Do not make unilateral decisions about accommodations without having them approved by DSS.