A student with a disability is not doing well in his chosen program of study and is likely to be dismissed from it. As a disability services provider, there’s likely little you can do about that.
However, you can make sure that your institution isn’t dismissing the student for the wrong reasons.
For instance, academic leaders may decide the 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 in the program.
Or they may fail him after denying him the use of accommodations approved by your unit, believing that the accommodations are unreasonable, even if they do not alter the essential requirements of the program.
You can help keep your institution out of legal trouble by ensuring that academic leaders have a good understanding of when they can and can’t dismiss students with disabilities.
Create understanding of 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. 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 doing so would fundamentally alter the nature of the program (which could only be known by identifying the essential eligibility requirements of the program).
But 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 the 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, find out what the fundamental things that a department wants students to be able to do with respect to that course of study.
Consult with competent legal counsel to make sure that those essential eligibility requirements are actually fundamental and that they do not create a situation where students with disabilities are being screened out. Then, make sure the final product is ratified by the appropriate academic department.
Once the corresponding department has signed off on the document, keep a copy of those essential eligibility requirements in your disability services office.
Make sure everyone knows their roles with regard to the document. That is, the department members are the subject-matter experts, while legal counsel is responsible for making sure the department is comfortable with what is fundamental and for ensuring that the language of 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 his field of study is another mistake I’ve often seen.
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 happen.
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 an institution makes 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 uses that as a reason to dismiss the student from the program, it may be exposing itself to a claim of disability discrimination on the grounds that it 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 students weren’t denied accommodations
A student may be dismissed for poor academic performance, but if that poor academic performance was due to the fact that he was denied accommodations approved by your 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 member. 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 your institution’s legal counsel involved.
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 if the institution still ends up in court, these steps should substantially increase your institution’s chances of prevailing.
Make sure dismissed students have a way to appeal decisions
An institution may have completely legitimate reasons for dismissing a student with a disability from a program, but if it doesn’t have a way for that student to appeal the decision, it may find itself in legal trouble.
Public entities that have more than 50 employees are required to have both an Americans with Disabilities Act coordinator and an internal grievance procedure.
If an entity takes federal funds — as most postsecondary institutions do — it makes sense for the Section 504 coordinator and the ADA coordinator to be one and the same, since the ADA and the Rehabilitation Act are working on substantially the same principles.
And 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.
In developing the grievance procedure, make sure it gives complainants the ability to be heard and that it allows for any necessary appeals. Also, ensure the people hearing the complaint are neutral. And make sure that the final decision is based upon the evidence presented throughout the process.
—William D. Goren
About the author
William D. Goren is a licensed attorney in Illinois, Texas and Georgia. His practice focuses on Americans with Disabilities Act consulting. He is also an author and frequent presenter.
He can be reached at firstname.lastname@example.org. Information about his services can be found at www.williamgoren.com. He also maintains a blog on all things ADA, available at www.williamgoren.com/blog.