A student with a disability is not making it in his chosen program of study and is likely to be dismissed. Although there may be little that an in-house counsel can do to prevent that action, he should make sure that the student isn’t being dismissed for the wrong reasons.
For instance, academic leaders may decide a student is not a good fit for the program in which he’s enrolled because they believe he will not be able to perform well in the field even if he can do the academic work involved.
Or they may fail him after denying him the use of accommodations approved by the disability services unit, believing that the accommodations are unreasonable even if they do not alter the essential requirements of the program.
In-house counsels can help keep their institutions out of legal trouble by ensuring that academic leaders have a good understanding of when they can and can’t dismiss students with disabilities.
Define essential requirements
Under the Americans with Disabilities Act, it is not enough for a person to have a disability. He must also be “otherwise qualified.”
If your institution is a public entity, it is subject to Title II of the ADA. Its implementing regulations state that a person is considered otherwise qualified if he can — with or without accommodations — meet the essential eligibility requirements of a program.
If your college or university is not a public entity, you still have to worry about essential eligibility requirements because you do not have to accommodate someone if the accommodation would fundamentally alter the nature of the program. But that could only be known if the program’s essential eligibility requirements had been identified.
Trying to determine whether a person can meet the essential eligibility requirements of a program with or without reasonable accommodations can become problematic if administrators do not know what those essential eligibility requirements are.
If there isn’t a clear understanding of the eligibility requirements of a program, start by asking administrators to set up a committee to assess what those are. In other words, they need to define the fundamental things that a department wants students to be able to do with respect to that course of study.
Committee members should consult with competent legal counsel to make sure that the essential eligibility requirements they noted are fundamental and that they do not create a situation where students with disabilities are being screened out.
Then they should ensure the final product is ratified by the appropriate department.
Once the academic department has signed off on the document, the disability services office should keep a copy of those essential eligibility requirements for future reference.
Everybody needs to know their roles in this process. That is, members of the department are the subject matter experts, while legal counsel is responsible for making sure department members are comfortable with what is fundamental and for ensuring that the requirements do not screen out persons with disabilities.
Keep the focus on academic program
Deciding to dismiss a student in a professional program such as nursing or pharmacy because administrators don’t think the student will be able to work in the field of study is a common mistake.
It is entirely possible that a person with a disability is studying in the field just because he is interested in that body of knowledge, and not because he has any actual intention of working in the field. While that may not happen often, it does occur.
Whether the student can actually perform in that profession beyond the academic environment is a question to be determined by others at a later time, many of whom will be subject to either Title I or Title II of the ADA.
If institutional officials make the assumption that a person with a disability is not going to be able to participate in the profession for which he’s studying and use that as a reason to dismiss the student from the program, they may be exposing the college or university to a claim of disability discrimination on the grounds that they regarded that person as being disabled. (See Peters v. University of Cincinnati College of Medicine, 2012 WL 3878601 (S.D. Ohio September 6, 2012).)
Ensure valid accommodations given
A student may be dismissed for poor academic performance, but if that performance was due to the fact that he was denied accommodations approved by the disability services unit, the institution is likely to run into legal problems.
Once accommodations are approved, make sure that those accommodations are implemented by the responsible faculty and staff. It’s important to have a process for dealing with instructors who refuse to implement needed accommodations.
If an institution is unionized, it makes sense for the union representative or head to get involved in that process. It also may be necessary to get legal counsel involved as well.
The matter may be resolved by something as simple as educating the instructor about both the need for accommodations and the process for determining that requested accommodations are actually needed.
By following the steps laid out here, you can help prevent successful Office for Civil Rights complaints and lawsuits. And if the institution still ends up in court, those steps should substantially increase your institution’s chances of prevailing.
Provide students with appeal process
Institutions may have completely legitimate reasons for dismissing a student with a disability from a program, but if they don’t have a way for that student to appeal the decision, they may find themselves in legal trouble.
Public entities with more than 50 employees are required by federal regulations to have both an ADA coordinator and an internal grievance procedure.
If the entity takes federal funds — as most post-secondary institutions do — it makes sense if the Section 504 coordinator and the ADA coordinator are one and the same, since the ADA and the Rehabilitation Act are working on substantially the same principles.
Regardless of whether an internal grievance procedure is required, it makes sense to have one for many reasons.
First, having such a procedure gives everyone a chance to resolve disputes before they escalate into protracted litigation, which can be quite costly for institutions.
Second, it gives college officials the chance to discover the concerns of those making complaints. And it gives individuals with disabilities who feel they’ve been wronged the chance to vent their feelings.
Finally, since exhaustion of administrative remedies is not required by either Title II or Title III of the ADA, the internal grievance procedure may be the last chance to head off an expensive courtroom battle.
Your grievance procedure should give complainants the ability to be heard and allow for any necessary appeals. Also, the people hearing the complaint must be “neutrals.” And their final decision must be based upon the evidence presented throughout the process.