ACCESS TO INSTRUCTIONAL PROGRAMS:
STATUTES, REGULATIONS, AND CASE LAW
This resource provides quick access to the relevant portions of the Rehabilitation Act of
1973, The Americans With Disabilities Act (1990), and the regulations developed by the
U.S. Department Of Education’s Office for Civil Rights (OCR) and the U.S. Department
of Justice (DOJ) to enforce those statutes. As federal government statutes and
regulations, they are in the public domain.
The source for statutes and regulations are the U.S. Government Printing Office’s web
sites for the United States Code, which contains the statutes or actual laws passed by
Congress (http://www.gpoaccess.gov/uscode/index.html) and for the Code of Federal
Regulations (http://www.gpoaccess.gov/cfr/) containing all of the regulations generated
by federal agencies to enforce the law.
Federal Appellate Court decisions are routinely published and citations are provided.
The National Disability Law Reporter publishes a number of Federal District Decisions
as well as a selection of letters issued by OCR. OCR letters are the results of complaints
investigated with that agency, are typically in the form of findings (the facts found in an
investigation), and may include a commitment to resolve or a settlement agreement
reached by mediation before the conclusion of an investigation.
Most higher education complaints are filed through OCR and not through the Courts, so
it is unfortunate that OCR letters are not routinely published. This resource contains
copies of all the unpublished OCR letters referred to in “ACCESS TO
INSTRUCTIONAL PROGRAMS: A Legal Resource for Understanding the Rights and
Responsibilities of Teaching and Accommodating Students with Disabilities in Higher
Education.”
The OCR letters reproduced here were obtained through Freedom of Information Act
Inquiries to the U.S. Department Of Education’s Office for Civil Rights at:
http://www.ed.gov/about/offices/list/ocr/index.html
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SECTION 504 OF THE REHABILITATION ACT OF 1973 [29 U.S.C. 794(a)]
Sec. 504.
(a) No otherwise qualified individual with a disability in the United States, as defined in
section 7(20), shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States Postal Service
(b) For the purposes of this section, the term "program or activity" means all of the
operations of (1)(A) a department, agency, special purpose district, or other instrumentality of a
State or of a local government; or
(B) the entity of such a State or local government that distributes such
assistance and each such department or agency (and each other State or local
government entity) to which the assistance is extended, in the case of assistance to
a State or local government;
(2)(A) a college, university, or other postsecondary institution, or a public system
of higher education; or
(B) a local educational agency (as defined in section 14101 of the Elementary
and Secondary Education Act of 1965), system of vocational education, or other school
system;
(3)(A) an entire corporation, partnership, or other private organization, or an
entire sole proprietorship (i) if assistance is extended to such corporation, partnership, private
organization, or sole proprietorship as a whole; or
(ii) which is principally engaged in the business of providing education,
health care, housing, social services, or parks and recreation; or
(B) the entire plant or other comparable, geographically separate facility to
which Federal financial assistance is extended, in the case of any corporation,
partnership, private organization, or sole proprietorship; or
(4) any other entity which is established by two or more of the entities described
in paragraph (1), (2), or (3);
any part of which is extended Federal financial assistance.
(c) Small providers are not required by subsection (a) to make significant structural
alterations to their existing facilities for the purpose of assuring program accessibility, if
alternative means of providing the services are available. The terms used in this
subsection shall be construed with reference to the regulations existing on the date of the
enactment of this subsection.
(d) The standards used to determine whether this section has been violated in a complaint
alleging employment discrimination under this section shall be the standards applied
under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and
the provisions of sections 501 through 504, and 510, of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment.
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TITLE 34 EDUCATION - SUBTITLE B REGULATIONS OF THE OFFICES OF
THE DEPARTMENT OF EDUCATION;
CHAPTER I - OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 104 - NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE –
Subpart E -- Postsecondary Education
104.41 Application of this subpart.
Subpart E applies to postsecondary education programs or activities, including
postsecondary vocational education programs or activities, that receive Federal financial
assistance and to recipients that operate, or that receive Federal financial assistance for
the operation of, such programs or activities.
104.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of handicap, be denied
admission or be subjected to discrimination in admission or recruitment by a recipient to
which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient to which this subpart
applies:
(1) May not apply limitations upon the number or proportion of handicapped persons
who may be admitted;
(2) May not make use of any test or criterion for admission that has a disproportionate,
adverse effect on handicapped persons or any class of handicapped persons unless (i) the
test or criterion, as used by the recipient, has been validated as a predictor of success in
the education program or activity in question and (ii) alternate tests or criteria that have a
less disproportionate, adverse effect are not shown by the Assistant Secretary to be
available.
(3) Shall assure itself that (i) admissions tests are selected and administered so as best to
ensure that, when a test is administered to an applicant who has a handicap that impairs
sensory, manual, or speaking skills, the test results accurately reflect the applicant's
aptitude or achievement level or whatever other factor the test purports to measure, rather
than reflecting the applicant's impaired sensory, manual, or speaking skills (except where
those skills are the factors that the test purports to measure); (ii) admissions tests that are
designed for persons with impaired sensory, manual, or speaking skills are offered as
often and in as timely a manner as are other admissions tests; and (iii) admissions tests
are administered in facilities that, on the whole, are accessible to handicapped persons;
and
(4) Except as provided in paragraph (c) of this section, may not make preadmission
inquiry as to whether an applicant for admission is a handicapped person but, after
admission, may make inquiries on a confidential basis as to handicaps that may require
accommodation.
(c) Preadmission inquiry exception. When a recipient is taking remedial action to correct
the effects of past discrimination pursuant to 104.6(a) or when a recipient is taking
voluntary action to overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to 104.6(b), the
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recipient may invite applicants for admission to indicate whether and to what extent they
are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used for this purpose or
makes clear orally if no written questionnaire is used that the information requested is
intended for use solely in connection with its remedial action obligations or its voluntary
action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary
basis, that it will be kept confidential, that refusal to provide it will not subject the
applicant to any adverse treatment, and that it will be used only in accordance with this
part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this section, a recipient may
base prediction equations on first year grades, but shall conduct periodic validity studies
against the criterion of overall success in the education program or activity in question in
order to monitor the general validity of the test scores.
104.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of handicap, be excluded from
participation in, be denied the benefits of, or otherwise be subjected to discrimination
under any academic, research, occupational training, housing, health insurance,
counseling, financial aid, physical education, athletics, recreation, transportation, other
extracurricular, or other postsecondary education aid, benefits, or services to which this
subpart applies.
(b) A recipient to which this subpart applies that considers participation by students in
education programs or activities not operated wholly by the recipient as part of, or
equivalent to, and education program or activity operated by the recipient shall assure
itself that the other education program or activity, as a whole, provides an equal
opportunity for the participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis of handicap, exclude
any qualified handicapped student from any course, course of study, or other part of its
education program or activity.
(d) A recipient to which this subpart applies shall operate its program or activity in the
most integrated setting appropriate.
104.44 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies shall make such
modifications to its academic requirements as are necessary to ensure that such
requirements do not discriminate or have the effect of discriminating, on the basis of
handicap, against a qualified handicapped applicant or student. Academic requirements
that the recipient can demonstrate are essential to the instruction being pursued by such
student or to any directly related licensing requirement will not be regarded as
discriminatory within the meaning of this section. 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 adaptation of the
manner in which specific courses are conducted.
(b) Other rules. A recipient to which this subpart applies may not impose upon
handicapped students other rules, such as the prohibition of tape recorders in classrooms
or of dog guides in campus buildings, that have the effect of limiting the participation of
handicapped students in the recipient's education program or activity.
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(c) Course examinations. In its course examinations or other procedures for evaluating
students' academic achievement, a recipient to which this subpart applies shall provide
such methods for evaluating the achievement of students who have a handicap that
impairs sensory, manual, or speaking skills as will best ensure that the results of the
evaluation represents the student's achievement in the course, rather than reflecting the
student's impaired sensory, manual, or speaking skills (except where such skills are the
factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as
are necessary to ensure that no handicapped student is denied the benefits of, excluded
from participation in, or otherwise subjected to discrimination because of the absence of
educational auxiliary aids for students with impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may 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. Recipients
need not provide attendants, individually prescribed devices, readers for personal use or
study, or other devices or services of a personal nature.
104.45 Housing.
(a) Housing provided by the recipient. A recipient that provides housing to its
nonhandicapped students shall provide comparable, convenient, and accessible housing
to handicapped students at the same cost as to others. At the end of the transition period
provided for in subpart C, such housing shall be available in sufficient quantity and
variety so that the scope of handicapped students' choice of living accommodations is, as
a whole, comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency, organization, or person in making
housing available to any of its students shall take such action as may be necessary to
assure itself that such housing is, as a whole, made available in a manner that does not
result in discrimination on the basis of handicap.
104.46 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial assistance to qualified
handicapped persons, a recipient to which this subpart applies may not,
(i) On the basis of handicap, provide less assistance than is provided to nonhandicapped
persons, limit eligibility for assistance, or otherwise discriminate or
(ii) Assist any entity or person that provides assistance to any of the recipient's students in
a manner that discriminates against qualified handicapped persons on the basis of
handicap.
(2) A recipient may administer or assist in the administration of scholarships, fellowships,
or other forms of financial assistance established under wills, trusts, bequests, or similar
legal instruments that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if the overall effect of
the award of scholarships, fellowships, and other forms of financial assistance is not
discriminatory on the basis of handicap.
(b) Assistance in making available outside employment. A recipient that assists any
agency, organization, or person in providing employment opportunities to any of its
students shall assure itself that such employment opportunities, as a whole, are made
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available in a manner that would not violate subpart B if they were provided by the
recipient.
(c) Employment of students by recipients. A recipient that employs any of its students
may not do so in a manner that violates subpart B.
104.47 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical education courses and
athletics and similar aid, benefits, or services to any of its students, a recipient to which
this subpart applies may not disacriminate on the basis of handicap. A recipient that
offers physical education courses or that operates or sponsors intercollegiate, club, or
intramural athletics shall provide to qualified handicapped students an equal opportunity
for participation in these activities.
(2) A recipient may offer to handicapped students physical education and athletic
activities that are separate or different only if separation or differentiation is consistent
with the requirements of 104.43(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that are not separate or
different.
(b) Counseling and placement services. A recipient to which this subpart applies that
provides personal, academic, or vocational counseling, guidance, or placement services to
its students shall provide these services without discrimination on the basis of handicap.
The recipient shall ensure that qualified handicapped students are not counseled toward
more restrictive career objectives than are nonhandicapped students with similar interests
and abilities. This requirement does not preclude a recipient from providing factual
information about licensing and certification requirements that may present obstacles to
handicapped persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant assistance to fraternities,
sororities, or similar organizations shall assure itself that the membership practices of
such organizations do not permit discrimination otherwise prohibited by this subpart.
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THE AMERICAN’S WITH DISABILITIES ACT, TITLES I & II [42 U.S.C. 126]
TITLE II—PUBLIC SERVICES
Subtitle A—Prohibition Against Discrimination and Other Generally Applicable
Provisions
SEC. 201. DEFINITION.
As used in this title:
(1) Public entity.—The term "public entity" means—
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or
States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined
in section 103(8) of the Rail Passenger Service Act).
(2) Qualified individual with a disability.—The term "qualified individual with a
disability" means an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and services,
meets the essential eligibility requirements for the receipt of services or the participation
in programs or activities provided by a public entity.
SEC. 202. DISCRIMINATION.
Subject to the provisions of this title, no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.
SEC. 203. ENFORCEMENT.
The remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of
1973 (29 U.S.C. 794a) shall be the remedies, procedures, and rights this title provides to
any person alleging discrimination on the basis of disability in violation of section 202.
SEC. 204. REGULATIONS.
(a) In General.—Not later than 1 year after the date of enactment of this Act, the Attorney
General shall promulgate regulations in an accessible format that implement this subtitle.
Such regulations shall not include any matter within the scope of the authority of the
Secretary of Transportation under section 223, 229, or 244.
(b) Relationship to Other Regulations.—Except for "program accessibility, existing
facilities", and "communications", regulations under subsection (a) shall be consistent
with this Act and with the coordination regulations under part 41 of title 28, Code of
Federal Regulations (as promulgated by the Department of Health, Education, and
Welfare on January 13, 1978), applicable to recipients of Federal financial assistance
under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). With respect to
"program accessibility", "existing facilities", and "communications", such regulations
shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of
Federal Regulations, applicable to federally conducted activities under such section 504.
(c) Standards.—Regulations under subsection (a) shall include standards applicable to
facilities and vehicles covered by this subtitle, other than facilities, stations, rail
passenger cars, and vehicles covered by subtitle B. Such standards shall be consistent
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with the minimum guidelines and requirements issued by the Architectural and
Transportation Barriers Compliance Board in accordance with section 504(a) of this Act.
SEC. 205. EFFECTIVE DATE.
(a) General Rule.—Except as provided in subsection (b), this subtitle shall become
effective 18 months after the date of enactment of this Act. (b) Exception.—Section 204
shall become effective on the date of enactment of this Act.
Subtitle B—Actions Applicable to Public Transportation Provided by Public Entities
Considered Discriminatory
PART I—PUBLIC TRANSPORTATION OTHER THAN BY AIRCRAFT OR
CERTAIN RAIL OPERATIONS
SEC. 221. DEFINITIONS.
As used in this part:
(1) Demand responsive system.—The term "demand responsive system" means any
system of providing designated public transportation which is not a fixed route system.
(2) Designated public transportation.—The term "designated public transportation"
means transportation (other than public school transportation) by bus, rail, or any other
conveyance (other than transportation by aircraft or intercity or commuter rail
transportation (as defined in section 241)) that provides the general public with general or
special service (including charter service) on a regular and continuing basis.
(3) Fixed route system.—The term "fixed route system" means a system of providing
designated public transportation on which a vehicle is operated along a prescribed route
according to a fixed schedule.
(4) Operates.—The term "operates", as used with respect to a fixed route system or
demand responsive system, includes operation of such system by a person under a
contractual or other arrangement or relationship with a public entity.
(5) Public school transportation.—The term "public school transportation" means
transportation by school bus vehicles of schoolchildren, personnel, and equipment to and
from a public elementary or secondary school and school-related activities.
(6) Secretary.—The term "Secretary" means the Secretary of Transportation.
NOTE: SECTIONS 222-245 ADDRESS PUBLIC TRANSPORTATION THE TEXT
HAS BEEN DELETED FOR THE PURPOSES OF THIS DOCUMENT.
SEC. 246. EFFECTIVE DATE.
(a) General Rule.—Except as provided in subsection (b), this part shall become effective
18 months after the date of enactment of this Act.
(b) Exception.—Sections 242 and 244 shall becom effective on the date of enactment of
this Act.
TITLE III—PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY
PRIVATE ENTITIES
SEC. 301. DEFINITIONS.
As used in this title:
(1) Commerce.—The term "commerce" means travel, trade, traffic, commerce,
transportation, or communication—
(A) among the several States;
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(B) between any foreign country or any territory or possession and any State; or
(C) between points in the same State but through another State or foreign country.
(2) Commercial facilities.—The term "commercial facilities" means facilities—
(A) that are intended for nonresidential use; and
(B) whose operations will affect commerce. Such term shall not include railroad
locomotives, railroad freight cars, railroad cabooses, railroad cars described in section
242 or covered under this title, railroad rights-of-way, or facilities that are covered or
expressly exempted from coverage under the Fair Housing Act of 1968 (42 U.S.C. 3601
et seq.).
(3) Demand responsive system.—The term "demand responsive system" means any
system of providing transportation of individuals by a vehicle, other than a system which
is a fixed route system.
(4) Fixed route system.—The term "fixed route system" means a system of providing
transportation of individuals (other than by aircraft) on which a vehicle is operated along
a prescribed route according to a fixed schedule.
(5) Over-the-road bus.—The term "over-the-road bus" means a bus characterized by an
elevated passenger deck located over a baggage compartment.
(6) Private entity.—The term "private entity" means any entity other than a public entity
(as defined in section 201(1)).
(7) Public accommodation.—The following private entities are considered public
accommodations for purposes of this title, if the operations of such entities affect
commerce—
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located
within a building that contains not more than five rooms for rent or hire and that is
actually occupied by the proprietor of such establishment as the residence of such
proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or
entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales
or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair
service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy,
insurance office, professional office of a health care provider, hospital, or other service
establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or
other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency,
or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or
recreation.
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(8) Rail and railroad.—The terms "rail" and "railroad" have the meaning given the term
"railroad" in section 202(e) of the Federal Railroad Safety Act of 1970 (45 U.S.C.
431(e)).
(9) Readily achievable.—The term "readily achievable" means easily accomplishable and
able to be carried out without much difficulty or expense. In determining whether an
action is readily achievable, factors to be considered include—
(A) the nature and cost of the action needed under this Act;
(B) the overall financial resources of the facility or facilities involved in the action; the
number of persons employed at such facility; the effect on expenses and resources, or the
impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the business of
a covered entity with respect to the number of its employees; the number, type, and
location of its facilities; and
(D) the type of operation or operations of the covered entity, including the composition,
structure, and functions of the work force of such entity; the geographic separateness,
administrative or fiscal relationship of the facility or facilities in question to the covered
entity.
(10) Specified public transportation.—The term "specified public transportation" means
transportation by bus, rail, or any other conveyance (other than by aircraft) that provides
the general public with general or special service (including charter service) on a regular
and continuing basis.
(11) Vehicle.—The term "vehicle" does not include a rail passenger car, railroad
locomotive, railroad freight car, railroad caboose, or a railroad car described in section
242 or covered under this title.
SEC. 302. PROHIBITION OF DISCRIMINATION BY PUBLIC
ACCOMMODATIONS.
(a) General Rule.—No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.
(b) Construction.—
(1) General prohibition.—
(A) Activities.—
(i) Denial of participation.—It shall be discriminatory to subject an individual or class of
individuals on the basis of a disability or disabilities of such individual or class, directly,
or through contractual, licensing, or other arrangements, to a denial of the opportunity of
the individual or class to participate in or benefit from the goods, services, facilities,
privileges, advantages, or accommodations of an entity.
(ii) Participation in unequal benefit.—It shall be discriminatory to afford an individual or
class of individuals, on the basis of a disability or disabilities of such individual or class,
directly, or through contractual, licensing, or other arrangements with the opportunity to
participate in or benefit from a good, service, facility, privilege, advantage, or
accommodation that is not equal to that afforded to other individuals.
(iii) Separate benefit.—It shall be discriminatory to provide an individual or class of
individuals, on the basis of a disability or disabilities of such individual or class, directly,
or through contractual, licensing, or other arrangements with a good, service, facility,
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privilege, advantage, or accommodation that is different or separate from that provided to
other individuals, unless such action is necessary to provide the individual or class of
individuals with a good, service, facility, privilege, advantage, or accommodation, or
other opportunity that is as effective as that provided to others.
(iv) Individual or class of individuals.—For purposes of clauses (i) through (iii) of this
subparagraph, the term "individual or class of individuals" refers to the clients or
customers of the covered public accommodation that enters into the contractual, licensing
or other arrangement.
(B) Integrated settings.—Goods, services, facilities, privileges, advantages, and
accommodations shall be afforded to an individual with a disability in the most integrated
setting appropriate to the needs of the individual.
(C) Opportunity to participate.—Notwithstanding the existence of separate or different
programs or activities provided in accordance with this section, an individual with a
disability shall not be denied the opportunity to participate in such programs or activities
that are not separate or different.
(D) Administrative methods.—An individual or entity shall not, directly or through
contractual or other arrangements, utilize standards or criteria or methods of
administration—
(i) that have the effect of discriminating on the basis of disability; or
(ii) that perpetuate the discrimination of others who are subject to common administrative
control.
(E) Association.—It shall be discriminatory to exclude or otherwise deny equal goods,
services, facilities, privileges, advantages, accommodations, or other opportunities to an
individual or entity because of the known disability of an individual with whom the
individual or entity is known to have a relationship or association.
(2) Specific prohibitions.—
(A) Discrimination.—For purposes of subsection (a), discrimination includes—
(i) the imposition or application of eligibility criteria that screen out or tend to screen out
an individual with a disability or any class of individuals with disabilities from fully and
equally enjoying any goods, services, facilities, privileges, advantages, or
accommodations, unless such criteria can be shown to be necessary for the provision of
the goods, services, facilities, privileges, advantages, or accommodations being offered;
(ii) a failure to make reasonable modifications in policies, practices, or procedures, when
such modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally alter the nature of such
goods, services, facilities, privileges, advantages, or accommodations;
(iii) a failure to take such steps as may be necessary to ensure that no individual with a
disability is excluded, denied services, segregated or otherwise treated differently than
other individuals because of the absence of auxiliary aids and services, unless the entity
can demonstrate that taking such steps would fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being offered or would result in
an undue burden;
(iv) a failure to remove architectural barriers, and communication barriers that are
structural in nature, in existing facilities, and transportation barriers in existing vehicles
and rail passenger cars used by an establishment for transporting individuals (not
11
including barriers that can only be removed through the retrofitting of vehicles or rail
passenger cars by the installation of a hydraulic or other lift), where such removal is
readily achievable; and
(v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not
readily achievable, a failure to make such goods, services, facilities, privileges,
advantages, or accommodations available through alternative methods if such methods
are readily achievable.
(B) Fixed route system.—
(i) Accessibility.—It shall be considered discrimination for a private entity which
operates a fixed route system and which is not subject to section 304 to purchase or lease
a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use
on such system, for which a solicitation is made after the thirtieth day following the
effective date of this subparagraph, that is not readily accessible to and usable by
individuals with disabilities, including individuals who use wheelchairs.
(ii) Equivalent service.—If a private entity which operates a fixed route system and
which is not subject to section 304 purchases or leases a vehicle with a seating capacity
of 16 passengers or less (including the driver) for use on such system after the effective
date of this subparagraph that is not readily accessible to or usable by individuals with
disabilities, it shall be considered discrimination for such entity to fail to operate such
system so that, when viewed in its entirety, such system ensures a level of service to
individuals with disabilities, including individuals who use wheelchairs, equivalent to the
level of service provided to individuals without disabilities.
(C) Demand responsive system.—For purposes of subsection (a),discrimination
includes—
(i) a failure of a private entity which operates a demand responsive system and which is
not subject to section 304 to operate such system so that, when viewed in its entirety,
such system ensures a level of service to individuals with disabilities, including
individuals who use wheelchairs, equivalent to the level of service provided to
individuals without disabilities; and
(ii) the purchase or lease by such entity for use on such system of a vehicle with a seating
capacity in excess of 16 passengers (including the driver), for which solicitations are
made after the thirtieth day following the effective date of this subparagraph, that is not
readily accessible to and usable by individuals with disabilities (including individuals
who use wheelchairs) unless such entity can demonstrate that such system, when viewed
in its entirety, provides a level of service to individuals with disabilities equivalent to that
provided to individuals without disabilities.
(D) Over-the-road buses.—
(i) Limitation on applicability.—Subparagraphs (B) and (C) do not apply to over-the-road
buses.
(ii) Accessibility requirements.—For purposes of subsection (a), discrimination includes
(i) the purchase or lease of an over-the-road bus which does not comply with the
regulations issued under section 306(a)(2) by a private entity which provides
transportation of individuals and which is not primarily engaged in the business of
transporting people, and
(ii) any other failure of such entity to comply with such regulations.
12
(3) Specific Construction.—Nothing in this title shall require an entity to permit an
individual to participate in or benefit from the goods, services, facilities, privileges,
advantages and accommodations of such entity where such individual poses a direct
threat to the health or safety of others. The term "direct threat" means a significant risk to
the health or safety of others that cannot be eliminated by a modification of policies,
practices, or procedures or by the provision of auxiliary aids or services.
SEC. 303. NEW CONSTRUCTION AND ALTERATIONS IN PUBLIC
ACCOMMODATIONS AND COMMERCIAL FACILITIES.
(a) Application of Term.—Except as provided in subsection (b), as applied to public
accommodations and commercial facilities, discrimination for purposes of section 302(a)
includes—
(1) a failure to design and construct facilities for first occupancy later than 30 months
after the date of enactment of this Act that are readily accessible to and usable by
individuals with disabilities, except where an entity can demonstrate that it is structurally
impracticable to meet the requirements of such subsection in accordance with standards
set forth or incorporated by reference in regulations issued under this title; and
(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use
of an establishment in a manner that affects or could affect the usability of the facility or
part thereof, a failure to make alterations in such a manner that, to the maximum extent
feasible, the altered portions of the facility are readily accessible to and usable by
individuals with disabilities, including individuals who use wheelchairs. Where the entity
is undertaking an alteration that affects or could affect usability of or access to an area of
the facility containing a primary function, the entity shall also make the alterations in
such a manner that, to the maximum extent feasible, the path of travel to the altered area
and the bathrooms, telephones, and drinking fountains serving the altered area, are
readily accessible to and usable by individuals with disabilities where such alterations to
the path of travel or the bathrooms, telephones, and drinking fountains serving the altered
area are not disproportionate to the overall alterations in terms of cost and scope (as
determined under criteria established by the Attorney General).
(b) Elevator.—Subsection (a) shall not be construed to require the installation of an
elevator for facilities that are less than three stories or have less than 3,000 square feet per
story unless the building is a shopping center, a shopping mall, or the professional office
of a health care provider or unless the Attorney General determines that a particular
category of such facilities requires the installation of elevators based on the usage of such
facilities.
NOTE: SECTIONS 304 THROUGH 306 APPLY TO PUBLIC TRANSPORTATION
SERVICES PROVIDED BY PRIVATE ENTITIES THE TEXT HAS BEEN DELETED
FROM THIS DOCUMENT.
SEC. 307. EXEMPTIONS FOR PRIVATE CLUBS AND RELIGIOUS
ORGANIZATIONS.
The provisions of this title shall not apply to private clubs or establishments exempted
from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) or to
religious organizations or entities controlled by religious organizations, including places
of worship.
13
SEC. 308. ENFORCEMENT.
(a) In General.—
(1) Availability of remedies and procedures.—The remedies and procedures set forth in
section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a)) are the remedies
and procedures this title provides to any person who is being subjected to discrimination
on the basis of disability in violation of this title or who has reasonable grounds for
believing that such person is about to be subjected to discrimination in violation of
section 303. Nothing in this section shall require a person with a disability to engage in a
futile gesture if such person has actual notice that a person or organization covered by
this title does not intend to comply with its provisions.
(2) Injunctive relief.—In the case of violations of sections 302(b)(2)(A)(iv) and section
303(a), injunctive relief shall include an order to alter facilities to make such facilities
readily accessible to and usable by individuals with disabilities to the extent required by
this title. Where appropriate, injunctive relief shall also include requiring the provision of
an auxiliary aid or service, modification of a policy, or provision of alternative methods,
to the extent required by this title.
(b) Enforcement by the Attorney General.—
(1) Denial of rights.—
(A) Duty to investigate.—
(i) In general.—The Attorney General shall investigate alleged violations of this title, and
shall undertake periodic reviews of compliance of covered entities under this title.
(ii) Attorney general certification.—On the application of a State or local government, the
Attorney General may, in consultation with the Architectural and Transportation Barriers
Compliance Board, and after prior notice and a public hearing at which persons,
including individuals with disabilities, are provided an opportunity to testify against such
certification, certify that a State law or local building code or similar ordinance that
establishes accessibility requirements meets or exceeds the minimum requirements of this
Act for the accessibility and usability of covered facilities under this title. At any
enforcement proceeding under this section, such certification by the Attorney General
shall be rebuttable evidence that such State law or local ordinance does meet or exceed
the minimum requirements of this Act.
(B) Potential violation.—If the Attorney General has reasonable cause to believe that—
(i) any person or group of persons is engaged in a pattern or practice of discrimination
under this title; or
(ii) any person or group of persons has been discriminated against under this title and
such discrimination raises an issue of general public importance,the Attorney General
may commence a civil action in any appropriate United States district court.
(2) Authority of court.—In a civil action under paragraph (1)(b), the court—
(A) may grant any equitable relief that such court considers to be appropriate, including,
to the extent required by this title—
(i) granting temporary, preliminary, or permanent relief;
(ii) providing an auxiliary aid or service, modification of policy, practice, or procedure,
or alternative method; and
(iii) making facilities readily accessible to and usable by individuals with disabilities;
(B) may award such other relief as the court considers to be appropriate, including
monetary damages to persons aggrieved when requested by the Attorney General; and
14
(C) may, to vindicate the public interest, assess a civil penalty against the entity in an
amount—
(i) not exceeding $50,000 for a first violation; and
(ii) not exceeding $100,000 for any subsequent violation.
(3) Single violation.—For purposes of paragraph (2)(C), in determining whether a first or
subsequent violation has occurred, a determination in a single action, by judgment or
settlement, that the covered entity has engaged in more than one discriminatory act shall
be counted as a single violation.
(4) Punitive damages.—For purposes of subsection (b)(2)(B), the term "monetary
damages" and "such other relief" does not include punitive damages.
(5) Judicial consideration.—In a civil action under paragraph (1)(B),the court, when
considering what amount of civil penalty, if any, is appropriate, shall give consideration
to any good faith effort or attempt to comply with this Act by the entity. In evaluating
good faith, the court shall consider, among other factors it deems relevant, whether the
entity could have reasonably anticipated the need for an appropriate type of auxiliary aid
needed to accommodate the unique needs of a particular individual with a disability.
SEC. 309. EXAMINATIONS AND COURSES.
Any person that offers examinations or courses related to applications, licensing,
certification, or credentialing for secondary or postsecondary education, professional, or
trade purposes shall offer such examinations or courses in a place and manner accessible
to persons with disabilities or offer alternative accessible arrangements for such
individuals.
SEC. 310. EFFECTIVE DATE.
(a) General Rule.—Except as provided in subsections (b) and (c), this title shall become
effective 18 months after the date of the enactment of this Act.
(b) Civil Actions.—Except for any civil action brought for a violation of section 303, no
civil action shall be brought for any act or omission described in section 302 which
occurs—
(1) during the first 6 months after the effective date, against businesses that employ 25 or
fewer employees and have gross receipts of $1,000,000 or less; and
(2) during the first year after the effective date, against businesses that employ 10 or
fewer employees and have gross receipts of $500,000 or less.
(c) Exception.—Sections 302(a) for purposes of section 302(b)(2)(B) and (C) only,
304(a) for purposes of section 304(b)(3) only, 304(b)(3), 305, and 306 shall take effect on
the date of the enactment of this Act.
15
Nashville State Technical Institute
President
Nashville State Technical Institute
120 White Bridge Road
Nashville, TN 37209
Re: Complaint # 04-99-2007
Dear *****:
This letter is to inform you that the Office for Civil Rights (OCR) has completed its
investigation of the above-referenced complaint alleging discrimination on the part of the
Nashville State Technical Institute (NSTI). In the complaint, (complainant), alleged that
NSTI discriminated against her on the basis of disability by failing to provide her with
academic adjustments. This eventually caused her to receive a grade of "F," resulting in
her dismissal from the Occupational Therapy Program (Program).
OCR enforces Section 504 of the Rehabilitation Act of 1973 (Section 504), as amended,
29 U.S.C. =A7 794, and its implementing regulation at 34 C.F.R. Part 104, which
prohibit discrimination on the basis of disability by recipients of Federal financial
assistance; and Title II of the Americans with Disabilities Act of 1990 (Title II), 42
U.S.C. =A7 12131 et seq., and its implementing regulation, 28 C.F.R. Part 35, which
prohibit discrimination on the basis of disability by public educational institutions. NSTI
receives Federal financial assistance and is a public educational institution. It therefore, is
subject to the requirements of Section 504 and Title II.
In reaching a determination in this complaint, OCR reviewed NSTI's policies and
procedures for the provision of services to persons with disabilities. OCR also examined
the Program requirements, e.g., make-up exams, academic standing, and dismissal. In
addition, OCR conducted interviews with the complainant and NSTI staff.
The standards for determining NSTI's compliance are set forth in the regulations
implementing Section 504. 34 C.F.R. =A7 104.43(a) states that no qualified person with
a disability shall, on the basis of disability, be excluded from participation in, be denied
the benefits of, or otherwise be subjected to discrimination under any academic or other
postsecondary education program or activity. 34 C.F.R. =A7 104.44(a) and (c) state that a
recipient shall make such modifications to its academic requirements as are necessary to
ensure that such requirements do not discriminate or have the effect of discriminating, on
the basis of disability, against a qualified applicant or student with a disability. Academic
requirements that the recipient can demonstrate are essential to the program of instruction
being pursued by such student or to any directly related licensing requirement will not be
regarded as discriminatory within completion of degree requirements, substitution of
specific courses required for completion of course examinations or other procedures for
evaluating students' academic achievement in its program, a recipient shall provide such
methods for evaluating the achievement of students who have a disability as will best
16
ensure that the results of the evaluation represents the achievement in the course, rather
than reflecting the student's impaired sensory, manual, or speaking skills.
The Title II implementing regulation at 28 C.F.R. =A7 35.130(a) and (b)(1) (iii) states
that no qualified individual with a disability shall, on the basis of disability, be excluded
from participation in, or be denied the benefits of, the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity. A public entity, in
providing any aid, benefit, or service, may not directly or through contractual, licensing
or other arrangements, on the basis of disability, provide a qualified person with a
disability with an aid, benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the benefit, or to reach the same level of
achievement as that provided to others. In this regard, Title II is interpreted consistently
with Section 504. With respect to postsecondary education institutions, however, the
obligation to provide academic adjustments for a student's disability does not arise until a
student has met the burden of demonstrating that he/she possesses a disability that
requires an academic adjustment. =20
OCR's findings of facts regarding the complainant's allegation follow:
- The complainant, who suffers from bipolar disorder, applied and was admitted to NSTI.
She, therefore, is a qualified person with a disability.
- The complainant enrolled in the Program at NSTI in fall semester, 1995. She claims that
she submitted all required documentation, including her medical history, which listed her
disability. She did not inform NSTI of a need for academic adjustments.
- During fall semester 1996, an adjunct occupational therapy instructor who had concerns
regarding the complainant's performance in class referred the complainant to the
Disability Services Coordinator. The complainant was made aware of the services that
are available to her. The complainant declined all offers for academic adjustments, stating
that she did not want anyone to know of her disability.
- During spring semester 1998, the complainant was given a Level II fieldwork placement
in Murfreesboro, Tennessee (Adams Place). On April 1, she suffered an episode of
decompensation, which caused her to leave a patient who was in her care. She
subsequently received an "F" for failing to meet academic requirements and was
dismissed from the Program.
- OCR's review of the complainant's fieldwork evaluation for the Adams Place placement
reveals that the April 1 incident may not be the sole reason that the complainant failed the
placement. The complainant exhibited deficiencies in all four rated components
(Evaluation; Treatment and Program Planning and Implementation; Communication; and
Professional Behavior). The fieldwork evaluator indicated the complainant had problems
in all four areas even before April 1.
17
Based on the evidence, we have determined that there is no evidence that the complainant
made a request for academic adjustment to NSTI. She thus, was not entitled to them.
OCR concludes that there is insufficient evidence to find that NSTI failed to provide the
complainant with academic adjustment. =20
We thank the NSTI for its assistance in this matter. If you have questions, please contact
***** Sincerely,
*****
Team Leader
CC: *****
18
University of Montevallo
*****
President
University of Montevallo
Station 6001
Montevallo, Alabama 35115
Dear *****:
Re: Complaint #04-99-2004
This letter is to notify you of the determination of the U. S. Department of
Education (Department), Office for Civil Rights (OCR) regarding the resolution
of the above-referenced complaint filed against the University of Montevallo
(University). XXXXXXXXXXXXXXXXXXXX (complainant) alleged that the
University dismissed her from the Elementary Education Program based on her
disability.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973
(Section 504), as amended, 29 U.S.C. Section 794, and its implementing
regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of
disability in any program or activity receiving Federal financial assistance, and
Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C,
Sections 12131 et seq., and its implementing regulation, 28 C.F.R. Part 35, which
prohibit discrimination on the basis of disability in public institutions of higher
education. The University is such a recipient and is, therefore, subject to the
provisions cited above.
The regulation implementing Section 504 at 34 C.F.R. Section 104.43 provides
that no qualified individual with a disability shall be denied the benefits of a
postsecondary education on the basis of disability. The regulation at 34 C.F.R.
Section 104.44(a) and (d) requires the recipient to provide modifications to its
academic requirements and educational auxiliary aids to qualified students with
disabilities to ensure they are not denied benefits of or excluded from
participation in the recipient's education program. The Title II regulation is
interpreted consistently with the standards set forth in the regulation
implementing Section 504.
There is no requirement that a postsecondary institution identify a student with a
disability. Rather, it is incumbent upon the student to not only notify the
institution of a disability, but to provide documented information for the
institution to determine the validity of an assertion of the disability. It is also the
student's responsibility to request the academic adjustment or auxiliary aid
required in order for them to receive the benefits of the institution.
In reaching a determination on this complaint, OCR reviewed and analyzed
records and documents pertinent to the issue of the complaint. We also conducted
interviews with University officials, the complainant, and other personnel. The
evidence shows that the University was not aware of the complainant's disability.
19
The complainant confirmed to OCR that she never notified the University of her
specific disability, never provided any documentation, and never requested any
accommodations.
The complainant enrolled at the University in 1996 in the Elementary Education
Program (Program). In January 1997, she was assigned an internship in a 5th
grade class at Oak Mountain Intermediate School (School). During her internship,
School personnel reported numerous problems with the complainant to the
University, and she was removed from the internship. She was asked to explain
her behavior and told that if there were extenuating circumstances for her
behavior, such information would be considered in making a decision on whether
to allow her to repeat an internship.
In April 1997, the University received letters from the Alabama Department of
Rehabilitation Services and the Mental Health Board of Chilton and Shelby
Counties, Inc. The letter from Rehabilitation Services was one paragraph that
stated that the complainant was eligible for services because of the "presence of a
disabling condition". The letter from the Mental Health Board was two sentences
that stated that the complainant "has a disability that is documented extensively in
her chart". Neither letter specified what the disabling condition was or what
modifications would accommodate the complainant. Neither letter included any
documentation of any kind.
From April 27 to May 2, 1997, the complainant attended a workshop at the
Dauphin Island Sea Lab as a part of the Program. The University was advised of
problems with the complainant's attendance and behavior. The teaching staff
complained to the Chairman of the Discovery Hall Programs about the
complainant's actions. The Chairman wrote the University on May 2, 1997,
stating that based on their experience, he would be hesitant to assign students to
the complainant.
On May 7, 1997, the complainant was advised that after a careful review of her
behavior and performance, she would not be permitted to repeat an internship.
She was also informed that since she could not be recommended for certification,
she could not continue in the Program.
OCR found that the University was not made aware of the complainant's
disability. She never specified what her disability was nor did she provide
documentation of a disability. She never registered with the University's
Disability Support Services and never requested any accommodations. Based
upon the above, OCR determined that there is insufficient evidence to support a
finding that the complainant was discriminated against on the basis of her
disability.
We appreciate the courtesy and cooperation that your staff extended to OCR. If
you have questions or concerns regarding this matter, please contact *****
Sincerely,
*****
Team Leader
20
Compliance Team B
21
Lewis and Clark College
President
Lewis and Clark College
0615 SW Palatine Hill Road
Portland, Oregon 97219
Re: Lewis and Clark College
Case No. 10972028
Dear *******:
The Office for Civil Rights (OCR) has completed its investigation of the abovereferenced complaint against Lewis and Clark College. In the complaint, it was
alleged that the college discriminated against a student on the basis of disability.
Specifically, it was alleged that the college:
(1) failed to provide the student necessary academic adjustments during fall term
1996; and
(2) did not have a Section 504 grievance procedure in effect during fall term
1996.
OCR conducted its investigation under the authority of section 504 of the
Rehabilitation Act of 1973 which prohibits discrimination on the basis of
disability in any program or activity which receives federal financial assistance
from the U.S. Department of Education. The college is a recipient of federal
financial assistance from this Department.
OCR has determined that the evidence did not support the first allegation, but did
support the second allegation. The conclusions set forth below are based on a
review and analysis of information submitted by the student and the college, as
well as interviews conducted with the student and college staff.
Allegation No. 1
The regulation implementing Section 504 at 34 CFR 104.44 requires a recipient to
provide academic adjustments and modify its academic requirements in order to
accommodate qualified students with disabilities. Specifically, the regulation at
34 CFR 104.44(a) requires, in part, that:
A recipient . . . make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have the effect
of discriminating on the basis of [disability], against a qualified [disabled]
applicant or student . . . 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 adaptations of the
manner in which specific courses are conducted.
Under Section 504, a recipient college and a qualified student with a disability
each have responsibilities relative to the provision of necessary academic
adjustments. The college must publicize the availability of academic adjustments
and the name of the person designated to coordinate its obligations to provide
22
them, though Section 504 does not prescribe the particular form such notice
should take. Disabled students who need academic adjustments must notify the
college that they have a disability and must assist the college to identify necessary
academic adjustments. Colleges may require students with disabilities to provide
supporting medical, psychological, or educational diagnostic tests and
professional prescriptions for academic adjustments. Section 504 does not require
the college to provide individualized diagnostic or prescriptive services. To
resolve issues regarding whether a college failed to provide a student with a
disability necessary academic adjustments, OCR considers whether the college
and the student have met their respective responsibilities under Section 504.
OCR found that prior to and during fall term 1996, the college publicized the
availability of academic adjustments and the name of the person designated to
coordinate its provision of them. OCR found that the student entered the college
as a first-year student during fall term 1996 and that the student notified the
college before he enrolled that he had attention deficit disorder (ADD) and that
his high school had identified him as eligible for services under Section 504 due
to ADD. The evidence established that the student provided the college a copy of
his high school Section 504 plan, dated April 4, 1996, which identified five
"needed modifications." The student also provided the college other supporting
documentation, some of which was inconsistent as to the nature of the student's
disability.
The evidence established that the college's coordinator of student support
services, who is also the college's Section 504 coordinator, made the student one
of her advisees and met with the student on August 30, 1996, to plan his fall
schedule of classes. Further, the evidence established that she told him at the
meeting that his disability documentation was not adequate for her to identify his
disability or to determine the specific academic adjustments he needed and that he
needed to provide the college additional disability documentation. Because the
college's notice to the student was verbal and the college did not, at the time, have
a written policy which defined what constituted adequate disability
documentation, OCR is unable to determine the specific content of the college's
August 30, 1996, notice to the student. The evidence established, however, that on
August 30, 1996, the student informed his parents that the college needed
additional disability documentation and that, within a week to 10 days, the
student's parents provided the college a second set of the same documentation that
the student had previously provided the college.
The evidence established that on September 27, 1996, the student met with the
coordinator of student support services again because he was having difficulty in
a Spanish language class. This was the student's first meeting with the coordinator
following their August 30 meeting. The evidence established that the student and
the coordinator spoke about how the student was doing in Spanish and his other
three classes and that the student was scheduled to talk with the Spanish instructor
about tutoring and study techniques. The evidence established that the student
dropped the Spanish class shortly after September 27, 1996. On October 1, 1996,
the student met with the coordinator again and, at the meeting, the coordinator
23
expressly told the student that she needed psycho-educational test data to
determine the nature of his diagnosis and the specific academic adjustments he
needed. She then scheduled the student to be evaluated by a clinical psychologist
on contract with the college. The evidence established that the student failed to
attend two successive appointments with the psychologist scheduled for him by
the college, one on October 15, 1996, and one on October 22, 1996. The evidence
establishes that the student missed the first appointment due to a situation which
was beyond his control (a medical emergency) and missed the second
appointment due to a situation which was within his control (he chose to go to
class rather than to the appointment).
The evidence established that the college rescheduled a third appointment for the
student with the psychologist on January 31, 1997, which the student kept. The
psychologist completed psychological testing of the student on that date,
diagnosed him as having a nonverbal learning disability, and prescribed specific
academic adjustments that the student needed.
The college and the student dispute whether the college provided the student any
academic adjustments during fall term 1996. The student stated that during fall
term 1996, he needed notetakers, tutors, extended time on tests and assignments,
and the five modifications identified in his high school Section 504 plan (i.e.
written assignments, major assignments broken down into manageable parts,
extended time, the opportunity to meet with instructors at the beginning of each
course, and regular feedback on progress). The evidence established that in one
class, the academic requirements were individualized for all students, including
the student in question; in another class, the instructor provided the student extra
time on a test and extra time on a written assignment, upon request; and in the
remaining class, the instructor provided the student extra time on a test, upon
request. In addition, the evidence established that the coordinator of student
support services: spoke with the student about how he was doing in his classes
when he met with her and that he did not identify any academic adjustments he
needed during those meetings; specifically offered the student a notetaker in one
class, which the student refused; and offered the student tutoring services and
writing center services, which the student refused.
Based on the evidence described above, OCR is unable to find that the college's
decision that the student initially did not provide the college adequate notice of
the nature of his diagnosis and the specific academic adjustments he needed
during fall term 1996 was unreasonable. Also, we find that the college timely
notified the student that his disability documentation was insufficient. Though the
college's lack of written policy with regard to what constituted adequate disability
documentation arguably contributed to the student's failure to provide the college
adequate documentation, the college offered to provide the student timely
diagnostic and prescriptive services. OCR finds that the college worked with the
student to provide him some academic adjustments during fall term 1996 and that
the student refused certain accommodations which the college offered. OCR is
unable to find that the student identified the need for other accommodations. OCR
concludes that, given the totality of the circumstances, the college's actions
24
toward the student during fall term 1996 were not unreasonable responses to the
information provided by the student. OCR also concludes that by not attending
the second psychological appointment which the college scheduled for him during
fall 1996 which would have clarified what academic adjustments he needed
during the term, the student did not meet his responsibilities to receive all the
academic adjustments he needed during the term. Because the evidence does not
establish that the college failed to meet its responsibilities regarding the provision
of necessary academic adjustments to the student during fall term 1996, OCR is
unable to conclude that the college violated 34 CFR 104.44 with respect to the
issue raised by this case.
Allegation No. 2
The regulation implementing Section 504 at 34 CFR 104.7(b) requires a recipient
to adopt grievance procedures that incorporate appropriate due process standards
and that provide for the prompt and equitable resolution of complaints of
discrimination on the basis of disability. Accordingly, a recipient may violate 34
CFR 104.7(b) if it does not have such procedures in place.
OCR has identified a number of elements which a college's Section 504 grievance
procedures must contain to be prompt and equitable. The required elements
include: notice to students and employees of the procedures, including where
complaints may be filed; application of the procedures to complaints alleging
harassment carried out by employees, other students, or third parties; adequate,
reliable, and impartial investigation of complaints, including the opportunity to
present witnesses and other evidence; designated and reasonably prompt
timeframes for the major stages of the complaint process; notice to the parties of
the outcome of the complaint; and an assurance that the college will take steps to
prevent recurrence of any harassment and to correct its discriminatory effects on
the complainant and others, if appropriate.
The evidence established that during summer 1996, the college drafted a
grievance procedure for students with disabilities and, in fall 1997, adopted a
substantially similar draft of the procedure. OCR has reviewed both procedures
and has determined that neither the summer 1996 draft, which was never formally
approved, nor the fall 1997 draft, satisfy the required elements outlined above.
OCR notified the college of its concerns and has been working with the college to
resolve the concerns. By letter dated June 10, 1998, enclosed, the college has
agreed to take steps which will ensure that its Section 504 grievance procedure
fully satisfies the requirements of Section 504. Because the college has agreed to
adopt and publish a Section 504 grievance procedure that fully satisfies the
requirements of Section 504, OCR concludes that its concerns about the college's
Section 504 grievance procedure have been resolved. OCR will monitor the
college's revision of its Section 504 grievance procedure and will end monitoring
activities when an approved procedure is adopted and published.
This letter is not intended, nor should it be construed to cover, any other issues
regarding compliance with Section 504 that may exist and that are not discussed
herein.
25
We are closing this case as of the date of this letter. If you have any questions
regarding this letter, please contact *****.
Sincerely,
Gary D. Jackson
Director, Seattle Office
Western Division
Enclosure
cc: *****
LEWIS AND CLARK COLLEGE
Office of the President
June 10, 1998
*****
U.S. Department of Education
Office for Civil Rights
Seattle Office, Room 3310
915 Second Avenue
Seattle, WA 98174-1099
Dear ****:
Thank you for your recent discussions with ***** in Seattle regarding Lewis &
Clark's Policy for Students with Disabilities. As you know, we have expended a
great deal of effort in perfecting these policies during the past year and appreciate
your thoughtful advice.
With regard to the Section 504 grievance procedure, by July 1, 1998 Lewis &
Clark will review and revise that procedure, in consultation with the Office of
Civil Rights, to ensure that the procedure (1) no longer requires a student to
attempt to informally resolve a concern prior to filing a complaint (consistent with
OCR guidance that a grievance procedure may include a mechanism to informally
resolve complaints only if it is optional and both parties agree to use the informal
process) and (2) is available to resolve complaints alleging any action prohibited
by Section 504, not just complaints against faculty and/or staff.
Further, Lewis & Clark will (1) adopt the revised procedure by that date; (2)
publish or reference the revised procedure in its 1998-99 catalog, student
handbook, and disabled student services pamphlets, handouts, and forms; and (3)
provide all faculty and staff written notice of the revised procedure. Then we will
send you copies of the revised procedure, a copy of the College's publications in
which the revised procedure is included or referenced, and a copy of the written
notice about the procedure provided to faculty and staff.
Please contact our attorney, *****
Sincerely,
*****
President
26
27
Colorado Technical University Finding
Docket # 08002075.LLF
Name of Signatory: L. Howard-Kurent
Date Issued: 04/23/01
Dr. Bob Roehrich
President
Colorado Technical University
4435 North Chestnut Street
Colorado Springs, Colorado 80907
Re: Colorado Technical University
Case Number 08002075
Dear Dr. Roehrich:
This letter is to notify you that the U.S. Department of Education, Office for Civil
Rights (OCR), completed its investigation of the above-referenced complaint
against Colorado Technical University (University). The complainant alleged the
University failed to provide him prompt and equitable resolution of his complaint
of discrimination filed with the University. The complainant also alleged
University staff subjected him to a hostile environment on the basis of disability,
including, but not limited to, engaging in breach of confidentiality. Additionally,
the complainant alleged the University subjected him to different treatment in a
class based upon disability.
OCR has the responsibility to ensure that recipients of Federal financial assistance
from the Department do not discriminate on the basis of disability in violation of
Section 504 of the Rehabilitation Act of 1973 (Section 504), and its implementing
regulation at 34 C.F.R. Part 104 and Title II of the Americans with Disabilities
Act of 1990 (Title II), and its implementing regulation at 28 C.F.R. Part 35. The
University is a public entity and is a recipient of such assistance and therefore, is
subject to the provisions of these statutes and implementing regulations.
In reaching a determination regarding the allegations, we reviewed documents
submitted by the complainant and the University. We also conducted interviews
with the complainant, students, and University staff.
Using established legal approaches to determine whether discrimination occurred,
we found the University provided the complainant with a prompt and equitable
resolution of his complaint. However, we find the University's grievance
procedures are not published, including the name, address, and telephone number
of the University employee designated to accept discrimination complaints as
required by the Section 504 and Title II regulations. The University agreed to
resolve the referenced omissions pursuant to the enclosed Commitment to
Resolve (CTR) that will be monitored by OCR to ensure completion.
OCR also found that the University did not subject the complainant to a hostile
learning environment or subject the complainant to different treatment in grading.
The bases for our conclusions are summarized below.
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ALLEGATION #1 - FAILURE TO PROVIDE PROMPT AND EQUITABLE
COMPLAINT RESOLUTION
The complainant is a person with disabilities that require him to use a wheelchair
for mobility and he receives assistance from the Division of Vocational
Rehabilitation and the Veterans Administration. He was enrolled in a Masters
program in computer science during the summer of 2000. Presently, he is not
enrolled.
The complainant alleged the University failed to provide him with prompt and
equitable resolution of his complaint of discrimination based on disability filed
with the University. The complainant filed several complaints with the University
that he alleges the University did not address. He alleges University employees
made inappropriate remarks to him, delayed his request for a computer, and
graded him differently in CS 102 than other students in the class.
Legal Standard
The regulation implementing Section 504 at 34 C.F.R. § 104.7 stipulates that (a)
". . . a recipient that employs fifteen or more persons shall designate at least one
person to coordinate its efforts to comply . . ." with Section 504. A similar
provision contained in Title II at 28 C.F.R. § 35.107(a) requires "a public entity
that employs 50 or more persons shall designate at least one employee to
coordinate its efforts to comply with and carry out its responsibilities under this
part, including any investigation of any complaint communicated to it alleging its
noncompliance with this part or alleging any actions that would be prohibited by
this part. The public entity shall make available to all interested individuals the
name, office address, and telephone number of the employee or employees
designated pursuant to this paragraph."
Under 34 C.F.R. § 104.7(b) the University is required to adopt a grievance
procedure providing for the prompt and equitable resolution of complaints
alleging noncompliance with Section 504 or its implementing regulations that
incorporate appropriate due process standards. The Title II regulation contains a
similar provision at 28 C.F.R. § 35.107(b) which also requires a recipient that
employs 50 or more persons to publish its grievance procedure.
Analysis
When evaluating a recipient's student complaint resolution process, OCR
considers a number of factors, including whether the procedure provides for 1)
clear notice of how, when, and where to file a complaint; 2) a thorough and
objective investigation of complaints, including the opportunity to present
evidence; 3) designated and reasonably prompt timeframes for the major stages of
the complaint process; 4) notice to the parties of the outcome of the complaint;
and appropriate due process.
OCR reviewed the University's complaint procedure that allows for resolving
complaints in an equitable and timely manner. The University publishes its notice
of nondiscrimination in the Student Handbook and Student Financial Assistance
Consumer Guide, which is distributed to students as part of the registration
process, but does not include an individual's name, office address, and telephone
29
number of the employee designated to coordinate complaints of discrimination.
The notice encourages the complainant to file with the Human Resources
Department. The University's publications also do not include its grievance
procedure as required by 28 C.F.R. § 35.107(b). The University agreed to resolve
the referenced omissions pursuant to a Commitment to Resolve (CTR) that will be
monitored by OCR to ensure completion.
The University provided documentation proving, in each of the complaints filed
by the complainant, the University addressed his concerns by interviewing the
complainant and witnesses, reviewed documentation provided by the complainant
and witnesses, and notified the complainant of its findings for all his complaints
in a timely manner. The University notified the complainant, verbally and in
writing, of the findings and provided the complainant an opportunity for appeal
with referral to the University President.
Based on the above analysis, OCR finds the University responded in a prompt and
equitable manner in investigating the complainant's allegations.
ALLEGATION #2 - HOSTILE ENVIRONMENT
The complainant alleged the University subjected him to a hostile learning
environment on the basis of disability.
Legal Standard
The regulation implementing Section 504 at 34 C.F.R. § 104.4(a) states that "no
qualified disabled person shall, on the basis of disability, be excluded from
participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity which receives or benefits from
Federal financial assistance." Title II has a similar prohibition, 28 C.F.R. §
35.130(a).
When evaluating allegations of harassment or a hostile environment, OCR
determines whether the complainant was harassed based on his disability; whether
the conduct was sufficiently severe, persistent, or pervasive as to deny or limit the
complainant's ability to participate in or benefit from the educational program;
whether the University knew of the conduct; and whether the University
responded adequately to redress the situation. A hostile environment may exist
even if there is no tangible effect on the student where the harassment is serious
enough to adversely affect the student's ability to participate in or benefit from the
educational program.
In determining whether the University subjected the complainant to a hostile
environment, OCR considered the following evidence: documentation provided
by the complainant and the University, and interviews conducted with the
complainant, University staff, and students.
Analysis
Incident #1- Bookstore
According to the complainant on July 5, 2000, the complainant with the assistance
of a University employee was purchasing books and class materials. The
30
complainant identified himself as a student receiving vocational rehabilitation
assistance. The complainant alleged that the bookstore employee told him that his
items were "free. This is on the taxpayers' money." The complainant alleged that
he was embarrassed and that the employee's remarks were hurtful and degrading.
The complainant alleged that the University took no action when informed of this
incident.
According to the University's information and evidence, the University addressed
this incident. Although OCR could not confirm the employee's remarks with the
witnesses, the University demonstrated that the bookstore employee made the
comment that the complainant's materials were "tax-free" because students who
receive vocational rehabilitation assistance do not pay sales tax.
This is an isolated incident and was related to the complainant's status as a
vocational rehabilitation student who would not be charged sales tax on his items.
The complainant continued to attend classes. There is no evidence that this
incident was anything other than a transitory informative remark regarding the
complainant's benefit as a vocational rehabilitation student and was not based on
his disability. The statement on its own is insufficient to create a hostile
environment.
Incident #2 - Obtaining a Laptop Computer
According to the complainant, on August 11, 2000, when he approached the
Administrator for Student Affairs in an open area to ask about his laptop
computer, she told him he needed to have a letter from a doctor defining his
medical requirements. She also reminded him that the University does not usually
perform this service for students. The complainant stated he felt embarrassed and
humiliated to have his disability publicly discussed and that she was asking for
money from him because this was something extra.
The complainant also alleged that when the complainant's wife called on August
18, 2000 to check on the status of the computer, the Administrator told his wife it
would take a while because the University was loading the computer with
software related to his Program, "that is, if he finishes his program."
The complainant perceived the request for medical documentation and discussion
at the Administrator's desk, in an open area, the delay in obtaining the laptop, and
the remark to his wife as an intent to harass him.
The complainant approached the Administrator in a public area and did not
indicate that he required a private area. The Administrator informed the
complainant of the University's requirement for medical documentation. This is a
reasonable request for relevant information. OCR finds this incident does not
meet the criteria of a hostile environment.
The remark concerning whether the complainant finishes his program is not
evidence that it was made in relation to the complainant's disability. The remark
made by the Administrator could be a generic remark that might apply to any
student in that any number of factors can hinder a student from completing a
program and not specifically applied to the complainant's ability to finish his
master's program because of his disability.
31
Based on the above analysis, it appears these incidents were general comments
not directed to or related to the complainant's disability. OCR concludes that the
facts of this matter do not constitute discrimination based on disability.
Incident #3- Class Discussion
The complainant alleged that the instructor referred to his "wooden leg" during a
class discussion. The complainant uses a wheelchair for mobility and uses a
prosthesis (leg). However, according to witnesses and the University, the
complainant's prosthesis is not visible.
The complainant filed a complaint with the University on August 31, 2000.
According to the University's investigation, the class participated in a discussion
regarding technological advances in the area of prosthetic hands. OCR reviewed
the instructor's statement regarding this allegation and interviewed two students
who were present during the discussion. One student stated that the discussion
contained a brief reference to "wooden legs" in a historical context as early, nontechnical devices used when an individual suffered an amputation, not in relation
to the complainant. The student stated that the conversation then centered around
the advances made in technology which enable medical personnel to reattach
severed limbs, specifically reattachment or replacement of hands and arms. The
student stated that there was no reference to any specific person within the class,
including the complainant.
Another student who was present remembered the conversation about
technological advances with respect to disabilities, reattachment of limbs, and
advances in prosthetic devices, but did not recall any mention of "wooden legs."
He also confirmed that there were no personal references made by the instructor.
According to these students and the instructor, there is no evidence that indicated
they were aware the complainant used a prosthesis. Based on the preceding
analysis, it appears these were general comments not directed to or related to the
complainant's disability. It does not appear this incident would be persistent or
pervasive enough to deny or limit the student's participation in, or benefit from,
his master's program. He continued attending classes and received a grade of A
for the class.
Whether conduct constitutes a hostile environment must be determined from the
totality of the circumstances. Based on our analysis of each incident, the conduct
of the University staff appears to be isolated incidents in which the complainant
misinterpreted random and generalized comments and situations and applied them
to himself. There is no other evidence that any of these incidents created a hostile
learning environment.
Therefore, OCR found that the evidence does not substantiate the complainant's
allegation of a hostile environment.
ALLEGATION #3 - DIFFERENT TREATMENT
The complainant alleged the University subjected him to different treatment in
grading based upon disability. According to the complainant, on August 31, 2000,
the complainant's instructor, informed him that she was deducting five points off
32
his Access Lab because he had not designed the forms required for the lab
assignment. The complainant claimed the instructor stated in the past she would
not deduct points for missing information or parts, so long as the students
understood the concept. He stated that she did not apply this policy to him
because of his disability.
When evaluating allegations of different treatment, OCR determines what action
the University took against the complainant; the University's policies and
procedures; and if the University followed them; compares the complainant's
treatment to similarly situated students; and if the University did not follow its
policies, or if the complainant was treated differently than other students. Then
OCR determines whether there is a legitimate, non-discriminatory reason for the
different treatment; and whether the University's reason is a pretext for
discrimination.
Analysis
According to the instructor's written statement, she informed the complainant that
she was going to award him 45 points instead of the full 50 points for a lab
exercise because the required forms demonstrating his knowledge of the subject
were missing. Our investigation established that, when the complainant completed
the assignment, he received the full amount of points.
The instructor's syllabus provides that it is essential for students to complete all
the work required by the labs as scheduled. The instructor awarded him the full
number of points after he completed the work for the lab. The instructor followed
her policies as stated in her syllabus.
Our investigation established that a non-disabled student did not complete her lab
assignment and received a reduced number of points similar to the complainant.
The complainant received the full amount of points when he finished the required
forms for the lab. According to the gradebook and the evidence provided by the
University, the complainant was not treated differently than other students in the
class. There is no correlation between the complainant's disability and the number
of points earned by the complainant for the lab exercise.
According to the analysis above and the evidence provided, our investigation
determined that the complainant was not treated differently from the other
students in the class.
CONCLUSION
OCR concluded that the University did not violate Section 504 or Title II with
regard to the allegations of this complaint. OCR is closing this case as of the date
of this letter. This letter addresses only the issues discussed above and should not
be interpreted as a determination of the University's compliance or
noncompliance with Section 504 or Title II in any other respect.
The Department of Education regulation prohibits the University from
intimidating or harassing anyone who files a complaint with our office or who
takes part in an investigation. Under the Freedom of Information Act, it may be
necessary to release this document and related correspondence and records upon
33
request. If OCR receives such a request, we will attempt to protect personal
information to the extent provided by law.
I want to express my appreciation for the courtesy and cooperation that you and
your staff, in particular Mr. Bob Golightly, extended to the staff of OCR. If you
have any questions regarding this matter, please contact me at (303) 844-4821, or
Paula C. Martinez, Equal Opportunity Specialist, at (303) 844-3254.
Sincerely,
Linda Howard-Kurent
Supervisory Team Leader
Enclosure
cc: Mr. Bob Golightly
Chief Executive Officer
34
University of California, Santa Cruz
DOCKET NUMBER: 09-97-2169
NAME OF SIGNER: ADRIANA CARDENAS
CLOSURE DATE: 4/30/99
Dr. Karl S. Pister
Chancellor
University of California, Santa Cruz
Santa Cruz, California 95064
(In reply, please refer to Docket Number 09-97-2169.)
Dear Chancellor Pister:
By letter dated October 21, 1997, you were informed that the U.S. Department of
Education (Department), San Francisco Office for Civil Rights (OCR), received a
complaint of discrimination on the basis of disability filed by xxxxxxxxxl
(complainant). The complainant alleged that the University of California, Santa
Cruz (UCSC), discriminated against him on the basis of his disabilities (Attention
Deficit Disorder and Learning Disability). Specifically, the complainant alleged
that:

During the Winter Quarter 1997, he was denied a testing accommodation
for the first mid-term examination for the Physics 6B course when there
was no proctor available to inform him of typographical mistakes in
questions on the examination and to answer his questions about the
examination. He further alleged that even though his disabilities prevented
him from completing the homework assignments within the regularly
assigned timelines, his request for additional time to complete the
homework was denied.

During the Spring Quarter 1997, he was denied an accommodation for the
Biochemistry and Molecular Biology 100C (BMB 100C) course when the
professor failed to respond to his requests for additional time to complete
the homework assignments. He also alleged that he was denied a testing
accommodation when the professor failed to provide him a separate room
and proctor for in-school examinations.

During the Spring Quarter 1997, he was denied a testing accommodation
for Physics 6C course when there was no proctor available to answer his
questions or to inform him about the typographical mistakes in questions
on the examination. He also alleged that the professor refused his request
for homework accommodations: either to accept the homework late, or to
substitute earned in-school examination points for the homework
requirement in calculating his grade for the course.

During the Winter and Spring Quarters 1997, the Disability Resource
Center (DRC) failed to provide him the assistance necessary to obtain
academic adjustments in the above courses.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973,
29 United States Code (U.S.C.) 794 (Section 504), and its implementing
35
regulations found at 34 Code of Federal Regulations (C.F.R.) Part 104, which
prohibit discrimination on the basis of disability by recipients of Federal financial
assistance from the Department of Education. OCR also has jurisdiction as a
designated agency to enforce Title II of the Americans with Disabilities Act of
1990, 42 U.S.C. 12101 et seq. (Title II) and its implementing regulations, 28
C.F.R. Part 35, which prohibit public entities, including public colleges and
universities, from discriminating on the basis of disability. UCSC receives
Department funds and is a public educational institution. Therefore UCSC is
subject to the requirements of Section 504 and Title II.
During the course of this investigation, OCR interviewed the complainant and
relevant UCSC personnel and reviewed pertinent documentation provided by the
complainant and UCSC. In addition, OCR learned from the University that the
complainant has graduated from the University.
As explained below and in light of the fact that the complainant has graduated
from the University, OCR could not determine an appropriate individual remedy
for those instances where the complainant did not receive appropriate
accommodations. However, to the extent an individual area of noncompliance
revealed a procedural or systemic deficiency, OCR obtained a remedy through a
Voluntary Resolution Plan. A copy of the Voluntary Resolution Plan signed by
the University on March 30, 1999 is enclosed with this letter. Contingent upon
implementation of the plan, UCSC is in compliance with Section 504 and Title II
with respect to the allegations in this complaint. The following is a summary of
the applicable legal standards and the compliance determinations made regarding
the complainant's allegations.
Legal Standards
The regulation implementing Section 504 at 34 C.F.R. ?104.3(j), defines a person
with a disability as any person who has a physical or mental impairment, has a
record of an impairment, or is regarded as having an impairment, which
substantially limits one or more major life activities. Title II, 28 C.F.R. ?35.104(1)
and (2), has a similar definition.
The regulation implementing Section 504 at 34 C.F.R. ?104.4(a), states that "no
qualified disabled person shall, on the basis of disability, be excluded from
participation in, be denied the benefits of, or otherwise be subjected to
discrimination under any program or activity which receives or benefits from
Federal financial assistance." Title II has a similar prohibition, 28 C.F.R.
?35.130(a).
Under 34 C.F.R. ?104.44(a), a recipient must make such modifications to its
academic requirements as are necessary to ensure that such requirements do not
discriminate or have the effect of discriminating on the basis of disability.
Modifications may include substitution of specific courses required for the
completion of degree requirements and adaptation of the manner in which specific
courses are conducted. Under 34 C.F.R. ?104.44(d), a recipient shall take such
steps as are necessary to ensure that no student with a disability is denied the
benefits of, excluded from participation in, or otherwise subjected to
36
discrimination in an education program because of the absence of auxiliary aids.
However, recipients are not required to modify academic requirements which the
recipient, "can demonstrate are essential to the program of instruction being
pursued by such student." Court decisions have interpreted "essential" to mean
"fundamental" to the nature or objective of the academic program, practice, or
standard.
Under 34 C.F.R. ?104.7(b), the University is required to adopt a grievance
procedure providing for the prompt and equitable resolution of complaints
alleging noncompliance with Section 504 or its implementing regulations. The
Title II regulation contains a similar provision at 28 C.F.R. ?35.107(b).
The regulations for Title II, at 28 C.F.R. ?35.130(b)(1)(ii) and (iii), state that a
public entity may not afford a qualified individual with a disability opportunities
that are not equal to those afforded others, and may not provide aids, benefits, or
services that are not effective in affording equal opportunity. Under 28 C.F.R
?35.130(b)(7), a public entity must make reasonable modifications in policies,
practices, or procedures when necessary to avoid discrimination on the basis of
disability, unless doing so would fundamentally alter the nature of the service,
program, or activity.
SUMMARY OF FACTS AND ANALYSIS
Background:
The complainant was admitted to UCSC as a transfer student in Fall 1995. His
proposed major was Biochemistry and Molecular Biology. UCSC does not
dispute that the complainant has a documented learning disability or that he is an
individual with a disability within the meaning of Federal disability law.
The Disability Resource Center's (DRC's) stated purpose is to provide educational
access to students with disabilities through the provision of academic support
services. Under a "decentralized approach," students are not required to utilize the
DRC to obtain academic adjustments. The DRC advises students with disabilities
to contact the DRC about any problems in obtaining academic adjustments
requested from a professor. If a direct contact with the professor by the DRC is
not successful or if the DRC Program Coordinator does not agree that the
requested academic adjustment is warranted, the student is then referred to the
DRC Director. The DRC Director, who is also the Americans With Disabilities
Act/Section 504 Compliance Officer, provides the student with information about
how to file an Americans With Disability Act/Section 504 Grievance or
complaint.
By a February 20, 1997 memorandum, the UCSC Chief Campus Psychiatrist
notified the DRC that the complainant was diagnosed with Attention Deficit
Disorder (ADD). The memorandum identified the complainant's functional
limitations as the "slowing of progress in school due to impaired concentration
and attention." The memorandum recommended a notetaker, tutor, extra time on
exams, and the option of taking incomplete grades or dropping classes as
accommodations. DRC notes dated February 21, 1997 showed a recommendation
37
for tutors, notetakers, extra time on examinations and that "proctor should read
[examination] questions to him."
In March 1997, prior to the incidents alleged in this complaint, the complainant
filed an internal grievance concerning two grades that he felt should have been
higher but for the denial of requests to his professors to waive the homework
requirements as an accommodation.
A March 27, 1997 report of findings from the then DRC Director, ADA/504
Compliance Officer for Student Programmatic Access, determined, in part, that
the homework was an essential component of both courses and that not to include
the homework requirement would have been a "fundamental alteration" of the
course. Noting that "[a]t UCSC, faculty make the final determination regarding
whether or not the requested accommodation is reasonable for their specific
course. . .," the report offered recommendations to the complainant in several
areas, including a recommendation to provide the DRC with more medical
assessment information about his disability.
With respect to the complainant's allegations in the current complaint, OCR
determined that the complainant, in effect, received accommodations for the
homework requirements in the Physics 6B and Physics 6C courses. OCR
determined further that the crux of the complainant's allegation with respect to the
homework accommodation for the BMB 100C course was that the DRC refused
to support his requests for homework accommodations. This issue pertains more
to the adequacy of the process and procedures than the requirements themselves
and therefore is addressed through the complainant's allegation regarding the
DRC.
This letter first addresses the complainant's allegations regarding both the
BMB100C homework accommodation requests and the DRC's assistance in the
section entitled "DRC Assistance." The complainant's allegations regarding
requests for testing accommodations is then addressed in the section entitled
"Testing Accommodations." Finally, OCR's review of UCSC's procedures
available for complaints of discrimination on the basis of disability is discussed in
the section entitled "Section 504 Grievance Procedures."
DRC Assistance:
OCR reviewed documents provided by UCSC and the complainant regarding the
DRC's response to the complainant's requests for assistance in obtaining
homework accommodations. In particular, OCR examined the DRC response to
the complainant's request for assistance in obtaining homework accommodations
for the BMB 100C course.
The complainant maintained that when the course professor denied his requests to
waive, submit the homework assignments late, or receive other accommodation
for the homework requirement, the DRC would not support his request because
the then DRC Director determined his request was "unreasonable." OCR
examined the DRC's role in resolving disputes about whether a requirement is
essential to a course or whether modification would fundamentally alter the nature
of the program. As described in this case, where the student sought DRC
38
assistance after a direct request with the professor was unsuccessful, the DRC
would meet with the professor to discuss some manifestations of the
complainant's disability and ask the professor questions about the role and content
of the homework. However, if the professor deemed the homework essential to
the course and denied the proposed accommodation, the process ended unless the
professor chose to find an alternate resolution.
Under an appropriate process, where a dispute arises over whether a requested
accommodation would alter an essential requirement of the University's program
or constitute a fundamental alteration to the program of instruction, universities
are generally required to engage in a deliberative process by relevant officials to
consider the objective and nature of the academic requirement and whether
effective alternatives to the requirement exist which could accommodate the
disabled student and not entail a fundamental alteration to the nature of the
program. Where the process identifies such alternatives, the institution should
make them available to persons with disabilities who cannot accomplish the
traditional requirements due to their disabilities. Where the process does not
identify such alternatives, the institution may hold all persons to the traditional
criteria. The courts have shown a great willingness to defer to the well-reasoned
conclusions of academic institutions that engage in a bona fide deliberative
process.
OCR notes that with respect to the BMB 100C course, the professor subsequently
offered the complainant an alternate accommodation by suggesting that the
complainant take the course over two semesters. Because the complainant did not
pursue the further discussions with the professor, but rather "unofficially
dropped" the course, OCR did not pursue further the individual allegation of
appropriate accommodation for the BMB 100C course.
However, with respect to the process or procedural issue, OCR determined that,
as articulated in this case, the individual course professor has the ultimate
discretion and final independent authority to determine whether reasonable
accommodation is available or whether accommodating the student would result
in a fundamental alteration in the nature of the course. The procedure as
exemplified by the complainant's treatment did not make adequate provision for a
deliberative process that included a diligent assessment of available options to
accommodate the student. Rather, where a course professor determined that a
requested accommodation would fundamentally alter a course, the process ended
but for the happenstance consideration of alternatives by the individual course
professor. Nor did the process ensure that the complainant was provided a viable
procedure to appeal a decision to deny his request for accommodation.
Though the concept of "fundamental alteration" is found in the disability
regulations enforced by OCR and has long existed in court decisions, the process
for determining that a particular course requirement is fundamental remains a
developing issue in the law. A number of widely-followed cases disfavor a single
determination by an individual professor and in any event require an active search
for available alternative options. The unilateral decision of a single professor that
alternatives do not exist, without an active search for alternatives, is not in
39
keeping with the "diligent" "well-reasoned" collaborative processes which the
courts have found warrant deferring to the judgements of academic institutions.
(See e.g., Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1st Cir.
1991); Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st Cir.
1992); and Guckenberger v. Boston University, 8 F.Supp 2d 82 (D.Mass. 1998).)
OCR also notes that to the extent the DRC disputed the complainant's disability
assessment documentation, it did not provide the complainant adequate notice of
an appropriate process through which to appeal a clearly articulated decision.
Taken as a whole, as described in this case, the process for resolving disputes
about a requested academic adjustment or the adequacy of the documentation of a
disability was not consistent with the regulations implementing Section 504 and
Title II at 34 C.F.R. ?104.44(a) and 28 C.F.R. ?35.130(b)(7), respectively. In this
case, OCR has not sought to substitute its judgement for that of UCSC but has
sought to further the adoption of the kind of processes which the courts have
favored. To address the procedural areas of noncompliance, UCSC agreed to
implement a procedure that provides for a process to resolve such disputes that
includes both an articulation of the purpose of a particular course requirement by
the course professor and a diligent assessment of available options for
accommodating the student with disabilities.
Testing Accommodations:
OCR reviewed information provided by the complainant and UCSC and
determined that in each of the three classes, even though the accommodation
requests were not contested, certain accommodations were not implemented
successfully. OCR determined further that in most cases the reason was due to
miscommunications or confusion about the roles and responsibilities of the DRC,
the faculty, and the student.
For example, due to a miscommunication between the faculty and a department
staffperson, no proctor was available to administer the BMB 100C examination.
The complainant was able to obtain the examination only after his efforts to locate
a proctor during the time the examination should have been in progress. With
respect to the provision of proctors for the Physics 6C examinations, OCR
determined that the complainant did not receive adequate assistance from a
proctor because for the first examination, the availability of a teaching assistant
(TA) to act as proctor may not have been adequately communicated to the
complainant. However, even if the complainant was adequately informed of the
availability of the TA for the second examination, he was not provided an
adequate accommodation because the TA did not provide him the same
clarification of the questions that was provided to other students.
OCR noted that role of the proctor with respect to the complainant's testing
accommodation needs was not clearly defined. OCR also noted that the written
information provided by the DRC to students and faculty is somewhat ambiguous
with respect to the roles and responsibilities of the DRC and faculty in providing
proctors.
40
OCR could not determine the precise reason why a proctor was not available to
answer the complainant's questions for the Physics 6B examination or inform him
of typographical errors. However, in light of evidence that the complainant
received an "A" grade on the mid-term examination and that the complainant was
provided a remedy by the course professor's action in weighting the final
examination more heavily in determining the complainant's grade, OCR did not
find an individual harm to the complainant that needed to be addressed by OCR.
Nevertheless, OCR notes that the speculative altering of grades is a problematic
way to address the denial of an appropriate adjustment. Awarding a student a
grade above or below the grade he or she would have earned on a appropriately
accommodated examination does not reflect merits. It would be far better for
UCSC to have a process whereby students receive appropriate accommodations
and where speculative remedies are unnecessary.
With respect to the provision of a separate testing room for the BMB 100C
course, OCR determined that the complainant was provided notice of a separate
testing room prior to the test date, but only after he was given conflicting or
confusing information from the faculty, DRC, and the Biology department
staffpersons. A review of a series of communications initiated by the complainant
showed that the procedures for requesting alternate testing rooms were not
entirely clear to the parties involved.
The regulation at 34 C.F.R. ?104.44 read in conjunction with the regulation at 34
C.F.R. ?104.4(b) requires that universities provide academic adjustments to
ensure that academic requirements do not have the effect of discriminating against
qualified disabled persons on the basis of disability or providing a qualified
disabled student an aid, benefit, or service that is not as effective as that provided
to others unless the recipient demonstrates the requirement is essential to the
program of instruction.
In light of the fact that the complainant "unofficially dropped" the BMB 100C and
Physics 6C courses prior to the investigation of this complaint and has graduated
from the University, OCR could not determine an appropriate individual remedy
to address the areas of noncompliance with the regulation with respect to the
provision of testing accommodations for those courses. OCR notes however that
the potential for delay, confusion, and temporary denial of appropriate
accommodations as described in this case, support the conclusion that the UCSC
reasonable accommodation process lacked sufficient coordination to ensure the
effective provision of routine foreseeable accommodations.
To resolve this issue, UCSC agreed to revise its current DRC policies and
procedures to ensure that students are not denied effective accommodations due to
insufficient, incomplete or ambiguous notice regarding the roles and
responsibilities of students, faculty, departments, and the DRC.
Section 504 Grievance Procedures:
The regulations implementing Section 504 require that recipients adopt grievance
procedures that provide for the prompt and equitable resolution of complaints of
discrimination on the basis of disability. During the course of this investigation,
41
UCSC identified three separate procedures which OCR determined were
potentially applicable to complaints of discrimination on the basis of disability: 1)
the UCSC Student Grievance Procedure; 2) the Procedure for a Disputed Grade
Notation or Evaluation (Grade Dispute Procedure); and 3) the Draft ADA and
Section 504 Grievance Policy and Procedure (Section 504 Grievance Procedure).
Under the regulation implementing Section 504, recipients are required to have a
procedure that incorporates appropriate due process standards and that provides
for the prompt and equitable resolution of complaints of discrimination on the
basis of disability. In determining whether a university's grievance procedures
meet the prompt and equitable standard, OCR considers a number of factors,
including whether the procedures provide for: 1) clear notice of how, when, and
where to file a complaint; 2) a thorough and objective investigation of complaints,
including the opportunity to present evidence; 3) designated and reasonably
prompt timeframes for the major stages of the complaint process; and 4) notice to
the parties of the outcome of the complaint.
During the relevant timeframe, UCSC was in the process of finalizing its Section
504 Grievance Procedure. Therefore, because OCR understands that this
procedure will apply to all complaints alleging discrimination on the basis of
disability, OCR limits its discussion to its review of this procedure. However, to
the extent the Grade Dispute Procedure was identified as a procedure for
appealing denials of academic adjustments, OCR notes that while changing a
grade may under a limited set of circumstances be an appropriate remedy to a
denial of an academic adjustment, it is a poor substitute to providing an
appropriate accommodation in the first place. The focus of the process should be
on obtaining, in a timely manner, reasonable accommodations which do not
constitute fundamental alterations to course requirements in a timely manner and
on resolving disputes about these matters promptly and equitably.
OCR determined that the Section 504 Grievance Procedure met some, but not all
of the standards delineated above, and thus was not sufficient to comply with the
regulations at 34 C.F.R. ?104.7 and 28 C.F.R. ?35.107. For example, the
procedure did not provide clear notice of how and where to file a complaint
because the purpose was ambiguous regarding whether it applied to all complaints
of discrimination on the basis of disability or was limited to complaints or
disputes about the denial of academic adjustments or other accommodations.
Further, the formal step in the procedure did not provide for a clear opportunity to
present evidence. Since the formal grievance step was conducted by the ADA
Compliance Officer who was also the DRC Director and since this individual
could reasonably be involved in the initial decision to deny an accommodation,
the procedure was not sufficient to ensure an impartial resolution of such disputes.
In addition, the procedure was not adequate to provide for a timely resolution of
disputes about the provision of academic adjustments sufficient to safeguard a
students academic well-being.
To resolve this issue, UCSC agreed to revise its current Section 504 Grievance
Procedure to ensure it provides for a prompt and equitable resolution of
complaints alleging discrimination on the basis of disability, including a clear
42
provision for an alternative expedited process for resolving disputes about the
provision of academic adjustments.
This letter only addresses the issues discussed above and should not be interpreted
to cover any other civil rights laws or regulations enforced by OCR.
Under the Freedom of Information Act, it may be necessary to release this
document and related records on request. If OCR receives such a request, it will
seek to protect to the extent provided by law, personal information which if
released could reasonably be expected to constitute an unwarranted invasion of
privacy.
If you have any questions, please call Raymond C. Newman, the investigator
assigned to this complaint at (415) 556-4270, extension 64270.
Sincerely,
Adriana Cárdenas
Team Leader
Enclosure
43
Laney College Finding
May 16, 2002
Dr. Deborah Blue
President
Laney College
900 Fallon Street
Oakland, California 94607
(In reply, please refer to Docket Number 09-02-2019.)
Dear President Blue:
On January 4, 2002, the Office for Civil Rights (OCR) notified Laney College
(College) of a complaint received against the College on November 16, 2001. The
complainant, [deleted], alleged that the College discriminated against her on the
basis of disability. Specifically, the complainant alleged that during the [deleted]
2001 semester, the College:
1. Failed to provide the complainant with academic adjustments in a
[deleted] class; adjustments that were authorized under the published
procedures of the College.
2. Failed to take prompt and equitable action to resolve her complaint
regarding the alleged failure to provide the academic adjustments; and
3. Subjected the complainant to a hostile environment on the basis of
disability when her mathematics instructor made disparaging remarks to
her in class and in the math lab.
OCR enforces Section 504 of the Rehabilitation Act of 1973 (Section 504) and its
implementing regulation. Section 504 prohibits discrimination on the basis of
disability in programs and activities operated by recipients of Federal financial
assistance. OCR also has jurisdiction as a designated agency under Title II of the
Americans with Disabilities Act of 1990 (Title II) and its implementing regulation
over complaints alleging discrimination on the basis of disability that are filed
against certain public entities. The College receives Department funds, is a public
education system, and is subject to the requirements of Section 504 and Title II.
OCR engaged in fact gathering in this matter but did not complete its
investigation. OCR did not reach any conclusions of law because the College
readily sought to resolve this matter voluntarily and constructively. We thank the
College for the collaborative approach that it took in this matter including the
efforts of the deans, the DSS officers, and counsel for the college.
Based upon actions taken by the College, and agreed to in a voluntary resolution
agreement, OCR considers the issues in this case resolved. This letter contains a
summary of the applicable legal standards, the limited facts gathered during the
investigation, and OCR's concerns prior to voluntary resolution.
Legal Standards
Under Section 504 regulation at C.F.R. 34 Part 104, section 104.44 and the Title
II regulations, a recipient shall make such modifications to their academic
44
requirements as are necessary to ensure that such requirements do not
discriminate or have the effect of discriminating, on the basis of disability, against
a qualified student with disabilities. Academic requirements that the college can
demonstrate are essential to the instruction being pursued by such student will not
be regarded as discriminatory within the meaning of this section. 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 substitution of specific courses requirement for the
completion of degree requirements, and adaptation of the manner in which
specific courses are conducted.
Under 34 C.F.R S 104.7 a recipient that employs fifteen or more persons shall
adopt grievance procedures that incorporate appropriate due process procedures
and standards that provide for the prompt and equitable resolution of complaints
alleging any action prohibited by this part.
Factual Summary
The complainant alleged that the College failed to provide her with authorized
academic adjustments and failed to take prompt and equitable action to resolve
her complaint regarding the alleged failure to provide the academic adjustments.
The complainant also alleged that her mathematics instructor subjected her to
disparaging remarks in class.
Academic adjustments. OCR learned that during the time of the alleged
discrimination, the complainant was a qualified disabled student and was
authorized by the College, through the Disabled Students' Programs and Services
(DSPS) office, to receive certain academic adjustments for the 2000-2001
academic year. In accordance with College procedures governing the provision of
academic adjustments, the DSPS provided the complainant with the "Academic
Accommodation Authorization" Form (hereinafter "Authorization Form") listing
the academic adjustments the College authorized for the complainant. One of the
academic adjustments authorized was extended time for testing.
The complainant gave a copy of the Authorization Form to her mathematics
instructor to notify the instructor of her authorized academic adjustments at the
beginning of the Spring 2001 semester.
OCR learned that during the course of the semester, several examinations were
given in which the adjunct/contract mathematics instructor denied the
complainant the opportunity to receive extended time for testing as authorized by
DSPS. The complainant notified DSPS each time her [deleted] instructor refused
to give her extended time on her exam. The complainant also notified the
instructor's academic department that her instructor had not implemented her
academic adjustments. Despite attempted informal interventions by DSPS to
remedy the failure to provide the academic adjustment with the instructor and the
instructor's academic department, the complainant continued to not receive the
authorized test-taking adjustment. As a result, DSPS advised the complainant to
file a written complaint with the College.
45
The complainant subsequently filed a written complaint, dated [deleted], 2001,
with the College alleging that she was denied an authorized academic adjustment.
Although the College initiated an investigation of the complainant's allegations,
the College did not make any determinations regarding the merits of her
complaint. OCR's limited investigation did not reveal the basis of the [deleted]
Professor's objection other than to deny that the adjustment had not been
implemented or in the alternative that it had not been implemented on grounds of
administrative convenience and feasibility. The investigation did not reveal an
objection on anyone's part pertaining to academic/fundamental alteration
concerns.
Prior to the end of the [deleted] 2001 semester, the complainant withdrew from
the math course and received a grade of "W" (Withdrawal) for her final course
grade. The complainant did not return to the College for the [subsequent] 2001
semester.
Technical Assistance Guidance
Under the Section 504 regulations, as noted above, a recipient shall make such
modifications to a qualified disabled students' program as are necessary to ensure
that such requirements do not discriminate or have the effect of discriminating, on
the basis of disability, against the student. This duty does not include
modifications that fundamental alter the nature of the program, such as a
modification that lowers academic standards.
Students, such as the complainant, who have followed the published procedures
of a college in obtaining an authorized academic adjustments are entitled to
assume that faculty members who conclude that a particular adjustment should
not be implement will also abide by the procedures of the College. Case law
suggests that a faculty member ought not to makes such a decision unilaterally
and, in any event, the procedures of the Laney College do not authorize such
unilateral recession of an authorized decision.
Students should also not be required to advocate for authorized adjustments
without first receiving a negative determination by the recognized designee of the
college. Indeed, the better practice would be for the college to insure that the
authorized adjustment is provided until the authorized designee has determined
that the adjustment will result in a fundamental program alteration.
In the event that the recipient's proper designee denies an academic adjustment
request, the student may appeal the decision through a due process venue. This
venue needs to provide the student with a prompt and equitable opportunity to
challenge the decision not to provide the requested accommodation.
Resolution
Academic Adjustment
In February and March 2002, the College and OCR representative discussed the
concerns raised in this case with respect to the denial of the authorized academic
adjustment for the complainant. In response to these concerns, the College
voluntarily submitted a resolution agreement. The College agreed to eliminate the
46
complainant's "W" grade in her [deleted] class from her transcript; assist the
complainant with her financial aid application if she decided to re-enroll in the
College; notify the complainant about the College's Progress Probation and how
to apply for a waiver from the probation; provide training and written notice to
full and part time staff members about their responsibilities to provide academic
adjustments under Section 504; provide written notice to faculty members as to
how to resolve any issues regarding the implementation of academic adjustments;
amend the Student Grievance Policy to clarify timeframes and procedures to
address complaints from students who allege that their instructors are not
implementing their academic adjustments; and to indicate in student publications
that a grievance can be filed for disability discrimination and harassment. OCR
will monitor the College's implementation of the agreement.
Disparaging remarks.
The complainant also alleged that during the [deleted] 2001 semester, her
instructor subjected her to disparaging remarks in her [deleted] class and in the
[deleted] lab. OCR reviewed information with respect to these allegations. OCR
was unable to make a determination regarding this allegation based on the
witnesses OCR interviewed. The College, however, addressed this concern by
voluntarily agreeing to provide trainings to their staff on disability harassment as
part of the resolution plan. Based on the agreement, OCR considers this issue to
be resolved.
This concludes OCR's investigation in this case. OCR is informing the
complainant of the resolution of this case by concurrent letter.
OCR routinely advises recipients of Federal funds and public education entities
that Federal regulations prohibit intimidation, harassment or retaliation against
those filing complaints with OCR and those participating in the complaint
resolution. Complainants and participants who feel that such actions have
occurred may file a separate complaint with OCR.
Under the Freedom of Information Act, it may be necessary to release this
document and related records on request. If OCR receives such a request, it will
seek to protect, to the extent provided by law, personal information that, if
released, could reasonably be expected to constitute an unwarranted invasion of
privacy.
OCR again wishes to thank the College for its cooperation. The
interdisciplinary/team approach, which the College took to analyzing and
supporting resolution of this matter, was essential to its positive outcome. We
thank all of the representatives of the College for sharing with OCR their advice,
perspectives, and solutions. If you have any questions about this letter, you may
contact [deleted], the investigator assigned to this case, at [deleted].
Sincerely,
David R. Rolandelli
Team Leader
Enclosure: Voluntary Resolution Plan
47
University of Mississippi Finding
OCR DOCKET NUMBER: 06012023.RES
CLOSURE ISSUE DATE: 07/20/2001
NAME OF SIGNER: NEDRA P. FAIN
July 20, 2001
Ref: 06012023
Dr. Robert C. Khayat, Chancellor
University of Mississippi
University, Mississippi 38677
Dear Dr. Khayat:
This is to inform you of the determination of the U.S. Department of Education,
Office for Civil Rights (OCR) Southern Division, with regard to the abovereferenced complaint filed against the University of Mississippi (UM), University,
Mississippi. The complainant alleged that UM discriminated against her daughter
(hereinafter the alleged injured party or (AIP)) on the basis of her disability
(Attention Deficit Disorder (ADD)) by refusing to provide her with academic
adjustments absent her submission of additional testing results to further diagnose
and verify her disability.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973
(Section 504) and its implementing regulation, at 34 C.F.R. Part 104, which
prohibits discrimination on the basis of disability in any program or activity
receiving Federal financial assistance. OCR also has jurisdiction as a designated
agency under Title II of the Americans with Disabilities Act of 1990 (Title II) and
its implementing regulation, at 28 C.F.R. Part 35, which prohibit discrimination
against qualified individuals with disabilities by public entities. The University is
a recipient of Federal financial assistance from the Department and is a public
entity and is therefore, subject to the provisions of Section 504, Title II and their
implementing regulations.
In reaching a determination in this complaint, we reviewed information provided
by the complainant and recipient. OCR has determined that there is insufficient
evidence to support a finding of a violation of the regulations implementing
Section 504 or Title II based on the complainant's allegation. The basis for this
determination is summarized below.
The Section 504 regulation, at 34 C.F.R. Section 104.43 (a), provides that a
qualified individual with a disability may not, on the basis of disability, be
excluded from participation in, be denied the benefits of, or otherwise be
subjected to discrimination under any post-secondary education program or
activity that receives Federal financial assistance from the department. The
Section 504 regulation, at 104.44(a), requires a recipient postsecondary
educational institution to make such modifications to its academic program as are
necessary to ensure that those requirements do not discriminate or have the effect
of discriminating, on the basis of disability, against a qualified individual with a
disability. An "academic adjustment" is a modification of an institution's policies,
48
practices or procedures. A recipient's duty to provide academic adjustments arises
after it has received adequate notice of a qualified individual's disability and the
need for academic adjustment.
The evidence shows that on August 3, 2000 the UM Office of Student Disability
Services received a completed and signed intake application from the AIP
requesting reasonable accommodations/modifications, i.e., extended time on tests,
alternative testing environment and priority registration. On August 9, 2000, the
UM sent the AIP a letter informing her that they could not verify her eligibility
for accommodations because they had not received any documentation. The
August 9 letter specified UM policy regarding the need for a recent psychoeducational evaluation. On August 28, 2000, UM received a faxed letter from the
AIP's doctor, which stated that she had been diagnosed with ADD. On September
8, 2000, after the UM received a completed ADHD Symptom Checklist from the
AIP's doctor, the UM temporarily verified the AIP as eligible for temporary
accommodations pending her submission of psycho-educational testing results.
On September 14, 2000, the AIP met with a UM Verification Specialist for an
accommodations meeting, at which time the AIP was told that her
accommodations would expire on December 31, 2000, contingent upon
submission to UM of a current psycho-educational evaluation. On December 14,
2000, UM mailed a letter to the AIP reminding her that her temporary
accommodations would expire later that month unless the necessary psychoeducational evaluation was received. On March 13, 2001, after the AIP failed to
submit requested documentation related to a psycho-educational evaluation, the
UM sent a letter to the AIP informing her that her file with the Office of Student
Disability Services had been closed.
Where a student requests a specific accommodation, the student may be required
to produce documentation in support of her need for the requested
accommodation. Depending on the nature of the disability, this may require that
the student provide the results of medical, psychological, or educational
diagnostic tests and professional prescriptions for academic adjustments. In the
present case, the AIP submitted a diagnosis and a checklist of ADHD symptoms
completed by her doctor. The AIP's documentation did not, however, provide
sufficient information supporting her requested academic adjustment. Therefore,
OCR concludes that there is insufficient evidence to support a finding of a
violation of Section 504 or Title II and this complaint is closed as of the date of
this letter.
This letter is not intended nor should be construed to cover any other issues not
discussed herein. This concludes OCR's consideration of this complaint.
Under the Freedom of Information Act, it may be necessary to release this
document and related correspondence and records upon request. In the event that
OCR receives such a request, we will seek to protect, to the extent provided by
law, personally identifiable information which, if released, could reasonably be
expected to constitute an unwarranted invasion of personal privacy.
49
Thanks to your staff for the cooperation in this investigation. If you have any
questions please contact me at (214) 880-2432.
Sincerely,
Nedra P. Fain
Civil Rights Investigator
DOE/OCR-Southern Division
50
UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL
RIGHTS
REGION IX Old Federal Building 90 United Nations Plaza, Room 239 San
Francisco, California 94102
January 25, 1996
Dr. Robert Caret President San Jose State University One Washington Square San
Jose, CA 95192-0001
(In reply, please refer to Docket Number 09-95-2206.)
Dear Dr. Caret:
On September 5, 1995, the U.S. Department of Education (Department), San
Francisco Regional Office for Civil Rights (OCR), received a complaint against
San Jose State University (SJSU or the University) alleging a violation of Section
504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans
with Disabilities Act of 1990 (Title II). Specifically, the complainant alleged that:
1) the University failed to provide him access to the "Internet", and 2) the
University failed to complete the "Self Evaluation Plan" required by Title II.
OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973
and its implementing regulation at 34 C.F.R. Part 104, which prohibits
discrimination on the basis of disability in programs and activities receiving
Federal financial assistance from the U.S. Department of Education. SJSU
receives such financial assistance and, therefore, is subject to the provisions of
those statutes and regulations. OCR also has jurisdiction under Title II of the
Americans with Disabilities Act of 1990 and its implementing regulation at 28
C.F.R. Part 35 to investigate claims of discrimination on the basis of disability
that are filed against certain public entities, such as institutions of higher
education. SJSU is a public entity.
Section 504 at 34 C.F.R. SS 104.4 (b)(1)(iii) and Title II at 28 C.F.R. SS 35.130
(b)(1)(iii), state, respectively, that recipients and entities in providing any aid,
benefit or service, may not afford a qualified individual with a disability an
opportunity to participate that is not as effective as that provided to others. Title II
recognizes the special importance of communication, which includes access
information, in its implementing regulation at 28 C.F.R. SS 35.106 (a). The
regulation requires a public entity, such as a state university, to take appropriate
steps to ensure that communications with persons with disabilities are as effective
51
as communications with others. Thus, the issue is not whether the student with the
disability is merely provided access, but the issue is rather the extent to which the
communication is actually as effective as that provided to others. Title II also
strongly affirms the important role that computer technology is expected to play
as an auxiliary aid by which communication is made effective for persons with
disabilities.
OCR notes that the "information superhighway" is fast becoming a fundamental
tool in post-secondary research. Rather than implementing adaptive software,
some institutions have attempted to utilize personal reader attendants as the
exclusive or primary way of making this form of computer information accessible
to persons with visual impairments. In most cases, this approach should be
reconsidered. One of the most important aims in choosing the appropriate
auxiliary aid has been to foster independence and autonomy in the person with a
disability. When reasonably priced technology is available that will enable the
visually impaired computer user to access the computer, including the World
Wide Web, during approximately the same number of hours with the same
spontaneous flexibility that is enjoyed by other nondisabled computer users, there
are many reasons why the objectives of Title II will most effectively and less
expensively be achieved by obtaining the appropriate software programs. (An
institution's reliance on adaptive software to provide access includes a
responsibility to provide the special training necessary to teach the computer user
with the disability how to use such software programs.)
OCR has learned from experts in adaptive technology that those with serious
visual impairments have encountered a stumblingblock in the form of the "graphic
window." Whereas information stored in text-format (ascii-based) documents is
retrievable through speech output devices, graphic images (e.g., those commonly
used on the "home page" of the World Wide Web) are not yet subject to
meaningful auditory translation by even the most sophisticated software programs
(unless the image has been encoded with an ascii-description). Although there
may be limited circumstances when a personal reader is needed to bridge the gap
in accessibility provided by adaptive software programs, this gap is continually
being narrowed and post-secondary institutions are expected to stay apprised of
recent advances. OCR commends SJSU for the significant efforts its staff have
made to remain knowledgeable about recent technological developments.
At any point in a complaint investigation prior to making a compliance
determination, OCR may administratively close that investigation if OCR
confirms that the issues have been resolved, or that there is a plan to resolve the
matter. By an agreement signed on January 19,1996, SJSU agreed to implement a
voluntary resolution plan. A copy of that plan is attached to this letter. The plan
addresses the complainant's allegations, and its implementation will be monitored
by OCR. OCR is, therefore, closing the above-referenced complaint. If SJSU fails
52
to implement the written agreement in the voluntary resolution plan, OCR may
reopen the case for further investigation and findings.
I want to express my appreciation for the courtesy and cooperation extended by
your staff to the OCR team members in working to achieve the voluntary
resolution of this case.
Under the Freedom of Information Act, it may be necessary to release this
document and related records on request. If OCR receives such a request, it will
seek to protect, to the extent provided by law, personal information that, if
released, could reasonably be expected to constitute an unwarranted invasion of
privacy.
If you have any questions regarding this matter, please contact Kathleen Schmitt
at (415) 556-6993.
Sincerely,
Patricia G. Shelton, Team Leader Compliance Division II
53
Department Of Education Office of Civil Rights
Complaint against San Jose 1997
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
February 7, 1997
REGION IX
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, California 94102
Dr. Robert Caret
President
San Jose State University
One Washington Square
San Jose, CA 95192-0001
(In reply, please refer to Docket Number 09-96-2056.)
Dear Dr. Caret:
The U.S. Department of Education (Department), San Francisco Regional Office
for Civil Rights (OCR), has completed its investigation of the complaint filed
against San Jose State University (University) by XXXXXXXXXXXXX (the
complainant) alleging discrimination on the basis of disability (visual
impairment). Specifically, the complainant alleged that: 1) the University failed to
provide him access to library services that were as effective as that provided to
nondisabled students; 2) the University failed to provide him access to the
"Schedule of Classes" and other printed material; and 3) the University failed to
54
promptly resolve his grievance filed with the Director of Equal Employment
Opportunity/Affirmative Action regarding the failure to provide access to the
"Schedule of Classes" and other printed material.
OCR is responsible for enforcing the provisions of Section 504 of the
Rehabilitation Act of 1973 (Section 504) and the Department implementing
regulations, which prohibit recipients of Federal financial assistance through the
Department from discriminating against persons participating in their programs
and activities, such as students, employees, and applicants for employment, on the
basis of disability. OCR also has jurisdiction as a designated agency under Title II
of the Americans with Disabilities Act of 1990 (Title II) and its implementing
regulation over complaints alleging discrimination on the basis of disability that
are filed against public institutions of higher education. Since the University
receives Federal funds through the Department and is a public entity, it is subject
to these statutes and regulations. Therefore, OCR has jurisdiction over the
University pursuant to Section 504 and Title II.
OCR reviewed documents submitted by both the complainant and the University.
OCR also interviewed the complainant and the involved University staff. OCR
found insufficient evidence to support a violation of Section 504 and/or Title II as
to the complainant's allegations regarding access to certain library service and as
to the "Schedule of Classes." OCR found that the University violated Section 504
and Title II as to the complainant's allegation regarding the failure to resolve his
grievance. This resolution letter is a summary of the applicable legal standards,
the findings of fact and the compliance determinations made regarding the
allegations filed with OCR by the complainant.
LEGAL STANDARD
The regulations implementing Section 504 are found at 34 Code of Federal
Regulations (C.F.R.) Part 104. The Title II regulations are found at 28 C.F.R. Part
35.
34 C.F.R. Sections 104.3(j)(1) and (2) explains disabilities as it defines a disabled
person as one who has a physical or mental impairment, a history of an
impairment, or is regarded as having such an impairment which substantially
limits a major life function. With respect to postsecondary education, a qualified
disabled person is defined at section 104.3(k)(3) as a disabled person who meets
the academic and technical standards requisite for admission to or participation in
the recipient's program or activity.
The Title II regulations at 28 C.F.R. 35.104 define disability as explained in the
Section 504 regulations. A qualified individual with a disability is defined as an
individual with a disability who, with or without reasonable modifications to
rules, policies, or practices, the removal of architectural barriers, or the provision
55
of auxiliary aids and services, meets the essential eligibility requirements for the
receipt of services or participation in programs or activities provided by a public
entity.
34 C.F.R. ss 104.4(b)(1)(ii) requires that recipients provide qualified disabled
persons an equal opportunity to participate in or benefit from services provided by
a recipient. Section 104.4(b)(1)(iii) requires that recipients provide qualified
disabled persons aids, benefits, or services that are as effective as those provided
to others. The Title II regulations at section 35.130 (b)(1)(ii) and (iii) set forth a
substantially similar standard by prohibiting an entity from providing the
opportunity to participate and the provision of any aid, benefit or services, on the
basis of disability, that are not equal to that provided to others or not as effective
in affording equal opportunity to obtain the same result, to gain the same benefit,
or to reach the same level as that provided to others.
28 C.F.R. 35.160 (a) requires that public entities take appropriate steps to ensure
that communications with persons with disabilities are as effective as
communications with others. Section 35.160 (b) requires the entity to provide
auxiliary aids and services where necessary and, in the determination of what type
of auxiliary aid and service is necessary, to give primary consideration to the
requests of the individual with a disability.
34 C.F.R. ss 104.7 (b) requires recipients to adopt grievance procedures that
incorporate appropriate due process standards and provide for the prompt and
equitable resolution of complaints based on disability discrimination. The Title II
regulations at section 35.107(b) also provide that a public entity adopt and publish
grievance procedures providing for the prompt and equitable resolution of
complaints alleging any action prohibited by Title II.
SUMMARY OF FACTS AND ANALYSIS
The complainant has a visual impairment that substantially affects a major life
activity within the meaning of the definitions contained in the regulations
implementing Section 504 and Title II. The complainant, who is a student at the
University, was a student during the relevant time period, the 1995-96 academic
year. He met the essential eligibility requirements for the receipt of services and
participation in the programs and activities of the University. Therefore, the
complainant is a qualified individual with disabilities under both regulations.
ACCESS TO LIBRARY SERVICES
In investigating this allegation, OCR sought to determine: 1) whether the
complainant was denied effective access to services when he was denied an
audio-tape of a December 20, 1996 meeting held to discuss his access to certain
56
library services; and 2) whether the complainant was denied effective access to
the Library newspaper collection which is stored on microfiche.
A. Audiotape:
The evidence showed that on December 14, 1995, the complainant requested, by
voice-mail, an audio tape of an upcoming meeting which was being held to
discuss his request for access to certain library services. He was informed both by
voice-mail and in a direct telephone conversation with the Assistant Disability
Resource Center Director (ADRCD) that a notetaker would be provided and that
transcribed notes would be transferred to audio-tape for him to hear. The
complainant indicated to OCR that the purpose of his request for an audio-tape of
the meeting rather than a notetaker was to enable him to achieve equivalent access
to the meeting discussions in the same way that he accesses the substance of class
discussions.
A notetaker was provided at the December 20 meeting for all participants and
those notes were transcribed to audio-tape. On December 20, the audio-tape was
mailed to the complainant.
OCR determined that the complainant was not denied equivalent access to the
December 20 meeting when he was provided an audio-tape of transcribed notes
rather than an audio-tape of the meeting. The evidence was not sufficient to
establish that the complainant's opportunity to participate in the meeting
discussions was diminished by the manner in which the substance of the meeting
was recorded. The notetaker's record of the meeting provided documentation of
what was discussed and decided at a meeting in which the complainant was an
active participant. There was no indication that the complainant's ability to
participate in the discussions or his ability to review the determinations made in
the meeting were denied or limited by the manner in which the record of that
meeting was produced.
B. Access to Microfiche:
During the winter intersession, December 1995 - January 1996, the complainant
requested access to old newspapers, particularly editions of the New York Times,
which are stored on microfiche. He wanted to search through these daily papers
for articles of interest to him. He expressly did not want all the pages copied for
audio translation because that method would be prohibitively expensive and timeconsuming both for the copier and for him as an individual with a disability.
Accordingly, he requested a reader to assist him in accessing the microfiche
collection.
The complainant alleged that the University conditioned his access to reader
services upon a showing of academic or course related relevance or that it limited
his access by his failure to make such a showing. In support of his position, he
provided to OCR correspondence from the University. A December 11, 1995
letter from the Disability Resource Center (DRC) to the complainant requested
57
clarification of use including academic relevance, if any, of his request for a
reader to access library services. Certain language in a January 4, 1996 letter from
the Library Liaison to Patrons with Disabilities suggested that the number of
hours allotted to him for his request was limited by the fact that his request was
non-academic.
The complainant also provided to OCR a copy of a December 22, 1995 letter
from the University Librarian that strongly suggested the Library was not
obligated to provide reader services to him in order for him to access the
microfiche newspaper collection because he was not enrolled in classes during the
winter intersession. That position as to who is considered an enrolled student was
contradicted by the Director of Registration and Records whose office is
responsible for determinations of student status. According to the Director, during
the period in question, the complainant was a student.
The evidence showed that, in practice, academic or course relevance is a factor in
allocating costs or resources, but that nonacademic requests do not necessarily
receive different accommodations. For example, accommodations for courserelated library research are provided and the cost absorbed by the DRC. In
contrast, although the DRC will assist other departments in providing access, in
general, accommodations for non-course related services are provided and the
cost absorbed by the department from which the service is requested. In addition,
under DRC practice, during the intersession when the pool of readers is small,
requests for readers for course related services would receive a higher priority in
the assignment of readers because such requests have a higher degree of timesensitivity.
Documents provided by the University showed that the primary mission of the
Library is to support and enhance the curricula of the University by providing
modern library, electronic, and media resources to enrich instruction and provide
informational materials consistent with the present and anticipated needs of the
University's diverse user population.
The Library has no specific policy regarding priority for academic requests for
either disabled or non-disabled patrons, but rather handles each request on a caseby-case basis depending on the availability of staff. Reference librarians
frequently ask the purpose of a request in order to direct a patron to the best
source material. For example, a patron might be directed to more scholarly source
materials if a reference question related to an academic course assignment as
opposed to a question unrelated to an academic course assignment. In general,
reference librarians attempt to focus or narrow a broad request from any patron in
order to provide the appropriate service. The Disability Resource Center Director
(DRCD) and the ADRCD indicated that the question about the purpose of the
complainant's request was designed, initially, to determine which department
58
would bear the cost of and provide the requested service. Further, the ADRCD
and the Library Liaison indicated that the complainant's original request was very
broad and that subsequent questions were designed to focus or narrow his request
in order to provide assistance consistent with the mission and practice of the
library.
In this case, after focusing the complainant's request, it was determined that he
would be provided two hours of reader services over a two week intersession
period to browse the advertisements and front pages in microfiche issues of the
New York Times for the month of January 1930. The Library Liaison indicated
she had not previously received a request like the complainant's. She indicated
further that she made her determination of a reasonable amount of time to achieve
his purpose in light of the comparatively limited length of that newspaper during
the 1930's.
The complainant used the full two hours of reader services allotted to him during
the intersession. During OCR interviews, the complainant indicated that the two
hours of reader services had not been sufficient to accomplish the agreed upon
purpose. However, he did not pursue the matter further either by notifying the
library liaison or making a second request for reader services.
OCR considers the fundamental purpose or mission of the library in making
determinations regarding access to library services. In this case, unlike many
public libraries which provide total information services to the general public, the
primary mission of the University Library is to support and enhance the curricula
of the University. Therefore, the University may, in appropriate circumstances,
allocate or set priorities in use of resources consistent with the fundamental
purpose of the University Library, but may not condition access to services, such
as the microfiche collection, upon a showing of academic or course related
relevance if those services are available to nondisabled students without such a
showing. In short, in providing access, library staff may establish reasonable
requirements for the provision of resources to provide access to services, such as
requiring a student to make prearranged appointments with a reader. When such
requirements are established, they must be reasonable. For example, prearranged
appointments with a reader could not be limited to only one time of day or only
one day a week but necessarily would be available during approximately the same
hours and days that the library is available to others.
OCR found that the complainant's access to the microfiche collection was not
conditioned upon or limited by a showing of academic or course relevance and,
thus, he was not denied access to library services as effective as those provided to
nondisabled students. OCR determined that based on the library's academic
mission, it was reasonable for the University to ask the purpose of the
complainant's request in order to determine the allocation and priority of
59
resources. OCR determined further that it was reasonable to focus the
complainant's request consistent with the libraries academic mission and practice
with regard to all patrons.
OCR acknowledges that two hours may not have been sufficient to accomplish
the agreed upon purpose and that in some cases there is a duty on the part of the
library to reassess the number of reader hours needed. OCR also acknowledges
that based on his communications with library staff the complainant personally
felt that further requests would be futile. However, in this case, because he did not
request further time and the evidence is not sufficient to establish that such a
request would have been denied, the University was not under a duty to reassess
its initial assessment of the number of reader hours needed.
The complainant also indicated to OCR that he agreed to the narrowed request
only because he felt intimidated and coerced by the questions he was asked about
course relevance and clarification of use.
OCR cautions that questions about academic relevance designed to deny or limit
access when combined with gratuitous and unfounded statements regarding
complainant's student status, if continued, could form the basis for a claim of
retaliation and harassment.
ACCESS TO "SCHEDULE OF CLASSES"
The complainant maintained that the "Schedule of Classes" and all printed
material, including grades and course schedules mailed to him from the
admissions and records office are not provided in accessible format. The
complainant confirmed that he has access to on-line course registration through
the DRC with assistance from DRC staff, but that his only direct access to the
"Schedule of Classes" is through his academic advisor who provides scheduling
and counseling assistance. The complainant also indicated that his access to
grades and course schedules is provided by the admissions and records staff who,
upon his request, read the information to him either from his printed materials or
from their computers.
The complainant indicated to OCR that initially he requested that the registrar's
staff provide him the "Schedule of Classes" in an accessible format, i.e., auditory
translation. The registrar's office directed him to the Disabled Resource Center
(DRC)'s office to obtain such an accommodation. The complainant stated that he
never followed up on this instruction to contact the DRC because he did not
believe the DRC office would assist him with any matter that does not pertain to a
course in which he is enrolled.
60
Because the Schedule of Classes is printed material made available to nondisabled
students to enable them to plan their course schedules (and as such is a
"communication" within the meaning of Title II), the University is obligated to
take appropriate steps to ensure that it communicates to blind students
information contained in the Schedule of Classes as effectively as it
communicates such information to nondisabled students. Thus, it is not acceptable
to make the Schedule of Classes accessible only via an appointment with an
academic advisor or even a personal reader when nondisabled students are able to
access the information at their convenience and review its contents for an
unlimited amount of time.
In choosing an accessible format, a college enjoys greater flexibility with respect
to campus publications than is true when choosing the accessible format for an
examination. (Because an examination usually entails communication under
tighter time strictures coupled with more serious academic consequences, there is
therefore a stronger presumption that the accessible format selected will be in
accordance with the student's request.) Provided that the format selected for
access is effective, the University is not necessarily required to make general
campus information, which may be requested by many students with various
types of disabilities and preferences, accessible in the precise format requested by
each student with a disability. In other words, a college may elect to create an
audiotape of the schedule of courses and refuse to provide the schedule in Braille.
Or it may ask the student to utilize an optical character recognition scanner, which
translates printed material into synthesized speech.
Based on prior OCR experience with the University, OCR is aware that the
University has various methods for making printed materials accessible to blind
students. It is also OCR's understanding that the University is in the process of
including the Schedule of Classes on a computer-based information system that
will be available to student users in the near future. Finally, because the
complainant was directed to the DRC office but never did, in fact, submit to that
office his request that the Schedule of Classes be made available to him in an
accessible format, OCR does not find the evidence establishes the University
failed to comply with Section 504 and/or Title II with respect to the Schedule of
Classes and other printed material identified by the complainant from the
admissions and records office.
GRIEVANCE
The complainant provided a copy of a December 1, 1995 complaint to the
Director of Equal Employment Opportunity/Affirmative Action (AAO) regarding
a denial of access to the Schedule of Classes and other printed material from the
admissions and records office. He maintains that no action has been taken on his
complaint nor has the requested access been provided.
61
The University Discrimination and Complaint Procedures for Students and
Applicants for Admission (Presidential Directive 91-03) in effect when the
complaint was lodged provided that a student could file a complaint by submitting
a written statement to the Equal Employment Opportunity/ Affirmative Action
Office. The procedure provided that a complainant would be notified within ten
(10) days after the receipt of the complaint regarding whether or not the complaint
would be processed. The procedure also provided the AAO with 30 days to
resolve the complaint informally and, if not resolved, 60 days to conduct a formal
investigation.
OCR reviewed the AAO complaint file containing the December 1, 1995 written
complaint statement and found no record of any contact with the complainant and
no record of an informal resolution or formal investigation. The Director of
Registration and Records, identified in the complainant's December 1 letter of
complaint, stated that she had never been contacted by the AAO regarding the
complainant's grievance.
OCR determined that the University failed to handle the complainant's grievance
in a prompt and equitable manner. However, OCR has reviewed the underlying
complaint in this case and determined that the evidence did not support a finding
of unlawful discrimination. OCR has dealt with the procedural matter in other
recent cases. On November 11, 1996, OCR received from the University a copy
of the finalized version of the its revised discrimination complaint procedures.
OCR did determine that the procedures, when implemented, are adequate to
provide due process and a prompt and equitable resolution of grievances alleging
discrimination on the basis of disability. In light of the fact that the University has
recently revised its discrimination complaint procedures, and OCR has completed
its investigation, no further remedy is required of the University. If and when
OCR complaints concerning the University are filed in the future, during its
investigation, OCR will seek to determine whether the University is currently
fully and timely implementing its newly revised discrimination complaint
procedures.
This letter pertains exclusively to the specific issues raised by this complaint. It is
not intended, and should not be interpreted, to express opinions as to the District's
compliance with respect to any issue not discussed in this letter, and does not
prelude OCR from investigating any future allegation of discrimination.
Under the Freedom of Information Act, it may be necessary to release this
document and related records on request. If OCR receives such a request, it will
seek to protect, to the extent provided by law, personal information that, if
released, could reasonably be expected to constitute an unwarranted invasion of
privacy.
62
If you have any questions regarding this matter, please contact Kathleen Schmitt
at (415) 437-7819.
Sincerely,
Pat Shelton, Team Leader
Compliance Division II
63
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE FOR CIVIL RIGHTS
April 7, 1997
REGION IX
Old Federal Building
50 United Nations Plaza, Room 239
San Francisco, California 94102
Dr. James. Rosser, President
California State University, Los Angeles
5151 State University Drive
Los Angeles, California 90032
(In reply, please refer to Case Docket No. 09-97-2002)
Dear President Rosser:
On October 8, 1996, the U.S. Department of Education (the
Department), Office for Civil Rights (OCR), received a complaint
against California State University, Los Angeles (the University)
alleging that the University is failing to provide access to blind
and low vision students with respect to its library resources,
campus publications, and its open computer laboratories located
within the various departments. The complaint further alleged that
there is insufficient student training on adaptive technology for
blind users and that inadequate provisions are being made with
regard to computers for test-taking by blind students.
OCR is responsible for enforcing Section 504 of the Rehabilitation
Act of 1973 (Section 504), and the Department implementing
Regulation at 34 Code of Federal Regulations (C.F.R.) Part 104,
which prohibits recipients of Federal financial assistance from the
64
Department from discriminating on the basis of disability in
programs and activities. OCR also has jurisdiction as a designated
agency under Title II of the Americans with Disabilities Act of
1990, and the implementing Regulations at 28 C.F.R. Part 35, over
complaints alleging discrimination on the basis of disability filed
against public educational institutions, including public colleges
and universities. Since the University receives Federal financial
assistance through the Department and is a public educational
institution, it is subject to OCR jurisdiction under both Section
504 and Title II, and the implementing Regulations.
Title II of the Americans with Disabilities Act (Title II) requires
a public college to take appropriate steps to ensure that
communications with persons with disabilities "are as effective as
communications with others" [28 C.F.R. ss 35.160(a)]. OCR has
repeatedly held that the term "communication" in this context means
the transfer of information, including (but not limited to) the
verbal presentation of a lecture, the printed text of a book, and
the resources of the Internet. Title II further states that, in
determining what type of auxiliary aid and service is necessary, a
public college shall give primary consideration to requests of the
individual with a disability [28 C.F.R. ss 35.106(b)(2)].
In construing the conditions under which communication is "as
effective as" that provided to non disabled persons, on several
occasions OCR has held that the three basic components of
effectiveness are timeliness of delivery, accuracy of the
translation, and provision in a manner and medium appropriate to
the significance of the message and the abilities of the individual
with the disability.
The courts have held that a public entity violates its obligations
under the Americans with Disabilities Act when it simply responds
to individual requests for accommodation on an ad-hoc basis. A
65
public entity has an affirmative duty to establish a comprehensive
policy in compliance with Title II in advance of any request for
auxiliary aids or services [see Tyler v. City of Manhattan, 857 F.
Supp. 800 (D. Kan. 1994)]. A recognized good practice in
establishing such a comprehensive policy is to consult with the
disability community, especially those members most likely to
request accommodations.
The magnitude of the task public entities now face in developing
systems for becoming accessible to individuals with disabilities,
especially with respect to making printed materials accessible to
persons with visual impairments, is comparable to the task
previously undertaken in developing a process by which buildings
were to be brought up to specific architectural standards for
access. Buildings in existence at the time the new architectural
standards were promulgated are governed by "program access"
standards. However, buildings erected after the enactment of the
new architectural standards are strictly held to the new standards
on the premiss that the builder is on-notice that such standards
apply. One who builds in disregard of those standards is
ordinarily liable for the subsequent high cost of retrofitting.
Similarly, from the date of the enactment of Title II onwards, when
making purchases and when designing its resources, a public entity
is expected to take into account its legal obligation to provide
communication to persons with disabilities that is "as effective
as" communication provided to nondisabled persons. At a minimum,
a public entity has a duty to solve barriers to information access
that the public entity's purchasing choices create, particularly
with regard to materials that with minimal thought and cost may be
acquired in a manner facilitating provision in alternative formats.
When a public institution selects software programs and/or hardware
equipment that are not adaptable for access by persons with
disabilities, the subsequent substantial expense of providing
66
access is not generally regarded as an undue burden when such cost
could have been significantly reduced by considering the issue of
accessibility at the time of the initial selection.
With respect to the question of when a public entity can require
the computer user with the disability to learn unfamiliar adaptive
technology software programs, when the user is already proficient
in a different program, it would seem reasonable to conclude that
if the public entity is employing a widely used program that is
generally regarded by knowledgeable experts as reliable for access
by persons with that type of disability (e.g., blindness), the
person with the disability may well be required to learn the
program selected by the institution. On the other hand, if the
public institution has installed a program that is generally
regarded by knowledgeable experts as providing cumbersome inferior
access to persons with visual impairments, the person with the
disability may rely upon the Title II provision requiring that
"primary consideration" be given to his/her request for the
institution to purchase the software with which s/he is proficient.
With the forgoing as a foundation OCR provides the following
technical assistance on the subject of access to public library
(footnote 1) resources by visually impaired individuals.
When looking at exactly which of its resources a library is
obligated to provide in an accessible medium, the short answer is
any resources the library makes available to nondisabled patrons
must be made accessible to blind patrons. This includes the
library catalogue, the archived microfiche, daily newspapers, and
the Internet (if that is a service provided to sighted patrons).
A categorical decision by a public library not to even consider a
request by a patron for a particular alternative format is in most
instances a violation of Title II. However, when determining what
alternative format is most appropriate, a library may take into
67
account how frequently the material is used by patrons and the
longevity of the material's usefulness. For instance, more serious
consideration should be given to translating into Braille
frequently used reference materials which have a long "shelf-life"
than would be true for daily newspapers.
Moreover, the basic purpose of the library may be taken into
account in shaping the library's obligations to make its resources
available to its patrons, including its patrons with disabilities.
"[U]like many public libraries which provide total information
services to the general public, the primary mission of the
University Library is to support and enhance the curricula of the
University. Therefore, the University may, in appropriate
circumstances, allocate or set priorities in use of resources
consistent with the fundamental purpose of the University Library,
but may not condition access to services, such as the microfiche
collection, upon a showing of academic or course related relevance
if those services are available to nondisabled students without
such a showing" [OCR Case Docket No. 09-95-2056 (February 7,
1997)].
Modern adaptive technology has radically affected the degree to
which it is economically feasible to make printed materials and
computer based information systems accessible to blind patrons.
The larger and more financially endowed the library, the higher the
expectation that a greater volume of information will be made
available within a shorter amount of time, particularly when
reasonably priced adaptive technology is available to replace tasks
that previously required personnel. An important indicator
regarding the extent to which a public library is obligated to
utilize adaptive technology is the degree to which it is relying on
technology to serve its nondisabled patrons. The more technology
that has been purchased by a public library to serve nondisabled
patrons, the more reasonable the expectation that it will employ
68
technology such as scanners to serve its patrons with disabilities.
In other words, a library's decision to purchase technology of any
kind not only creates an expectation that the newly purchased
technology will be accessible, but it suggests that the library now
has the resources and expertise to fully consider the role of
technology with regard to other aspects of its program. A library
that has computerized its catalogue and has several computer
workstations offering the Internet may be expected to seriously
consider such items as an optical character
recognition scanner and/or screen reader with voice output for
inclusion in its technological acquisitions.
In most OCR cases, at any point prior to completion of the
investigative stage of the case, the college may indicate that it
is interested in exploring voluntary resolution of the issues
identified in the case. A commitment by the college to voluntarily
resolve the issues usually substantially reduces the necessity for
further investigation and may eliminate the need for OCR findings
of compliance and/or noncompliance. In this case, the University
elected to proceed toward voluntary resolution.
By letter dated February 6, 1997, OCR provided draft language that
would be sufficient, upon adoption by the University, to resolve
the issues in this case. The University requested that the OCR
proposed date for University implementation of all steps necessary
for resolution of the issues (April 15, 1997) be extended (to June
30, 1997). In a telephone conference on March 6, 1997, between OCR
and the University, the University indicated that it was already in
the process of resolving the issues, and that some steps could be
completed sooner than June 30, 1997. By letter dated March 14,
1997, the University reiterated that all areas included in OCR
proposed resolution dated February 6, 1997, would be addressed by
June 30, 1997, and that certain steps would be completed sooner (in
69
fact, the University maintains that some of the steps proposed by
OCR are already being implemented, e.g., most campus publications
are available through the network connection, as described in the
University's previous letter dated December 13, 1996).
OCR accepts the University's written commitment of March 14, 1997,
interpreted in the context of the OCR proposed resolution plan of
February 6, 1997, and the telephone conference of March 6, 1997, as
resolving the issues in this case. A monitoring report documenting
that the University has fully addressed each of the areas (footnote
2) set out in the OCR proposed resolution plan is due to OCR by
July 15, 1997.
Under the Freedom of Information Act, it may be necessary to
release this letter and related correspondence and records upon
request. In the event that OCR receives such a request, it will
protect, to the extent provided by law, other personal information
which, if released, would constitute an unwarranted invasion of
privacy.
If you have further questions regarding this letter, please contact
Ms. Cynthia Avila, Equal Opportunity Specialist, at (415) 437-7790
or Ms. Sarah Hawthorne, Civil Rights Attorney, at (415) 437-7719.
Sincerely,
Adriana Cardenas
Team Leader
Footnotes:
1. The U.S. Department of Education is the designated agency with
responsibility for enforcing Title II as to public libraries,
including public college libraries [28 C.F.R. ss
35.190(b)(2)].
70
2. To the extent offered to other students, the University is to
provide blind students access to its computers/computer-based
information systems (including access to the Internet and the
campus network) in the library and open laboratories (Academic
Technology Services Laboratory - ATS labs). Other issues to
be addressed include adequate training on adaptive technology
for students, provision of computer equipped with adaptive
technology in examination rooms, and distribution of a
Memorandum clarifying the use of tape recording in classroom
as an accommodations.
71
April 20, 1999
Robert C. Maxson
President
California State University, Long Beach
1250 Bellflower Blvd
Long Beach, CA 90840
(In reply, please refer to Docket Number 09-99-2041.)
Dear President Maxson:
On December 17, 1998, the U.S. Department of Education (Department), Office for Civil
Rights (OCR), received a complaint alleging that the California State University, Long
Beach (University) failed to provide a student with the accommodations required by her
disability (blindness) in order to access the College of Business curriculum and other
educational programs.
OCR has jurisdiction over the subject matter of this complaint and over the University
under both Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the
Americans with Disabilities (Title II), which prohibit recipients of Department funds
and/or public institutions, respectively, from discriminating against persons with
disabilities.
Specifically, the complainant alleges that:
1) The computer laboratories/classes in the College of Business are not equipped with
adaptive technology so that she can take courses such as Business and Information
Systems, which is a prerequisite to her obtaining a Bachelor of Science degree in her
major Business Management.
2) Her course assigned textbooks, which contain substantial amounts of graphs and
charts, were not made accessible to her.
3) With respect to a particular Business Management course, the instructor refused to
provide her access to overhead transparencies and to implement the appropriate
accommodations for the course's final examination.
4) The doors of the offices of the College instructors are not marked in a manner that
enable her to identify the occupant instructor.
Title II of the Americans with Disabilities Act of 1990 (Title II) requires a public college
to take appropriate steps to ensure that communications with persons with disabilities
"are as effective as communications with others" [28 C.F.R. § 35.160(a)]. OCR has
repeatedly held that the terms "communication" in this context 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.
72
Title II further states that, in determining what type of auxiliary aid and service is
necessary, a public college shall give primary consideration to the requests of the
individual with a disability [28 C.F.R. § 35.160(b)(2)].
In construing the conditions under which communication is "as effective as" that
provided to nondisabled persons, on several occasions OCR has held that the three basic
components of effectiveness are timeliness of delivery, accuracy of the translation, and
provision in a manner and medium appropriate to the significance of the message and the
abilities of the individual with the disability.
The courts have held that a public entity violates its obligations under the Americans with
Disabilities Act when it simply responds to individual requests for accommodation on an
ad-hoc basis. A public entity has an affirmative duty to establish a comprehensive policy
in compliance with Title II in advance of any request for auxiliary aids or services [see
Tyler v. City of Manhattan, 857 F. Supp. 800 (D.Kan. 1994)]. A recognized good
practice in establishing such a comprehensive policy is to consult with the disability
community, especially those members most likely to request accommodations.
As universities have striven to provide effective communication to students with
disabilities with respect to computer technology, traditionally the academic community
has relied heavily on a single centralized unit on campus to house and maintain the
specialized adaptive technology equipment. This practice has been seen as a method for
enabling a small number of staff with adaptive technology expertise to serve a relatively
large number of students with disabilities. However, such sole reliance upon a single
centralized location (when not limited to adaptive technology training, but instead used
for instructing disabled students in course subject matter) may run counter to the strong
philosophy embodied in Title II and Section 504 regarding the importance of fully
integrating students with disabilities into the mainstream educational program, unless
such services cannot be otherwise effectively provided [see 34 C.F.R. § 104.4(b)(iv); 28
C.F.R. § 35.130(b)(iv)]. Thus OCR assumes in most cases computer access will be
effectively provided to the student with the disability in an educational setting with his or
her nondisabled peers and classmates at the various computer laboratory sites scattered
throughout the campus.
In most OCR cases, at any point prior to completion of the investigative stage of the case,
the college may indicate that it is interested in exploring voluntary resolution of the issues
identified in the case. A commitment by the University to voluntarily resolve the issues
usually substantially reduces the necessity for further investigation and may eliminate the
need for OCR findings of compliance and/or noncompliance. In this case, the University
elected to proceed toward voluntary resolution.
By letter received April 1, 1999, the University provided OCR with a voluntary
resolution plan which resolves the issues raised in this case. This plan includes the
following commitments (as well as others): The University will:
73
1) Develop and implement a written procedure describing which campus units are
responsible for installing and maintaining adaptive workstations situated in College and
central computer laboratories.
2) Develop and implement a systematic method for ensuring that the issue of accessibility
to persons with disabilities, particularly blind persons, is taken into account when
colleges purchase computer technology (software and hardware).
3) Develop and implement a systematic method for informing campus employees who
design/select web pages for use by students to make sure the web pages are in accordance
with principles known to maximize accessibility to users with disabilities, including
visual impairments.
If you have further questions regarding this letter, please contact Sarah Hawthorne, Civil
Rights Attorney, at (415) 556-4146.
Sincerely,
Robert E. Scott
Team Leader
Office for Civil Rights
cc: Barbara J. Franklin, Acting Director, Equity and Diversity
Page 3 - (09-99-2041)
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July 23, 2002
Ref: 06022029
Dr. Arthur K. Smith
Chancellor/President
University of Houston
212 E. Cullen Building
Houston, Texas 77204-2018
Dear Dr. Smith:
This is to notify you of the determination of the U.S. Department of Education, Office for
Civil Rights (OCR), Southern Division, Dallas Office, regarding the resolution of the
above referenced complaint, which was received in OCR on January 30, 2002 and filed
against the University of Houston (UH), Houston, Texas. The complaint alleged
discrimination on the basis of disability in violation of Section 504 of the Rehabilitation
Act of 1973 (Section 504), 29 U.S.C. § 794 (amended 1992), and its implementing
regulation at 34 C.F.R. Part 104 (2001); and Title II of the Americans with Disabilities Act
of 1990 (Title II), 42 U.S.C. § 12132, and its implementing regulation at 28 C.F.R. Part 35
(2001).
Specifically, the complainant (XXXXXXXXXX) alleged that the UH is discriminating
against her on the basis of her disabilities (quantitative learning disabled, legal blindness
and spinal meningitis) by refusing to make modifications to its academic requirements
that are necessary to ensure that such requirements do not discriminate on the basis of
disability, namely by refusing to substitute science classes for nonessential college
algebra and statistics classes in order for her to complete her Bachelor of Arts degree in
Psychology in violation of 34 C.F.R. § 104.44 (a) and 28 C.F.R. § 35.130 (b)(7).
OCR determined that the UH is a recipient of Federal financial assistance from the U.S.
Department of Education. Therefore, OCR has jurisdiction to investigate this complaint
allegation
under Section 504. In addition, the UH is also a public entity, thus OCR has jurisdiction
to investigate this complaint under Title II.
During the course of this investigation, OCR obtained, reviewed, and analyzed
documentation from a variety of sources including the UH and complainant. OCR also
interviewed the complainant, UH administrators and other student witnesses.
Based on the evidence summarized below, OCR has determined that there is insufficient
evidence to support a finding of a violation of Section 504 or Title II relative to the above
cited allegation. The basis for our determination is summarized below.
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ALLEGATION
The complainant alleged that the UH is discriminating against her on the basis of her
disabilities (quantitative learning disabled, legal blindness and spinal meningitis) by
refusing to make modifications to its academic requirements that are necessary to ensure
that such requirements do not discriminate on the basis of disability, namely by refusing
to substitute science classes for nonessential college algebra and statistics classes in order
for her to complete her Bachelor of Arts degree in Psychology in violation of 34 C.F.R. §
104.44 (a) and 28 C.F.R. § 35.130 (b)(7).
FINDINGS
The Section 504 regulation, at 34 C.F.R. § 104. 44 (a), regarding academic adjustments,
requires a postsecondary institution to make such modification to its academic
requirements as are necessary to ensure that such requirements do not discriminate
against a qualified student or applicant with a disability. The regulation also states that
academic requirements that the recipient can demonstrate are essential to the program of
instruction being pursued by such student or to any directly related licensing requirement
will not be regarded as discriminatory. The regulation implementing Title II of the ADA,
at 28 C.F.R. § 35.130 (b) (7), states that a public entity shall make reasonable
modifications in policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public entity can demonstrate
that making the modifications would fundamentally alter the nature of the service,
program or activity.
In cases involving allegations of discrimination on the basis of disability, a jurisdictional
determination must be made as to whether the alleged injured party is a qualified
individual with a disability in accordance with the Section 504 implementing regulation
at 34 C.F.R. § 104.3 (k). OCR’s review of the complainant’s records found that she is an
individual with a disability because she has been diagnosed as having a visual impairment
and a learning disability in math and quantitative reasoning ability, which substantially
limits her major activity of learning. In addition, OCR found that she met the academic
and technical standards requisite for admission or participation in the recipient’s
educational program or activity. Therefore, OCR determined that she is a qualified
individual with a disability entitled to the protections afforded by Section 504 and Title
II.
Based on OCR’s review of the complainant’s student files, she was admitted to the UH’s
Undergraduate Psychology Program in Spring 1996 and subsequently the UH
acknowledged her disabilities and provided her with various academic adjustments.
Information from the complainant, OCR review of her UH transcript and information
secured from the UH during a telephone interview of June 26, 2002 indicates that the
complainant was under the 1995-1997 catalog. OCR’s review of the 1995-1997 catalog
shows that core curriculum courses are those which must be taken by candidates for any
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bachelor’s degree from the UH. The core curriculum requirements include three credit
hours of Math 1310, College Algebra and three credit hours of “approved math, logic,
statistics, computer science, or music theory courses”. In several places throughout the
1995-1997 catalog, the student is advised that Math 1310 or equivalents is a requirement,
which will be strictly enforced.
During the February 20, 2002 telephone interview with OCR, the complainant indicated
that in order for her to complete her Bachelor of Arts degree in Psychology, she lacked a
total of six credit hours, which were three credit hours in College Algebra and three credit
hours in Statistics. However, according to the July 8, 2002 statement from the UH, she
lacked the Level 1 core curriculum requirements of six credit hours as follows: three
hours of College Algebra and three hours of Math/Reasoning. The Statistics class, which
she referred to in her complaint, is one of 17 courses that she may choose in order to
satisfy the Math/Reasoning component. Thus, pursuant to the above
information, there is no requirement that she take the Statistics course and OCR will not
proceed further to discuss this course.
OCR cannot require an institution to waive or lessen
essential requirements. OCR can require a modification of
the requirement, if the requested modification does not
lower academic standards, fundamentally alter the nature of
the program or impose an undue burden on the College or
University, and the modification meets the underlying
reason for the requirement.
OCR may review the process that a postsecondary institution utilizes to determine
whether an academic requirement is an essential requirement. An appropriate process
should include a decision that is made by a group of people who are trained,
knowledgeable and experienced in the area and the decision makers consider a series of
alternatives as essential requirements. The decision should be a careful, thoughtful and
rational review of the academic program and its requirements.
OCR’s review and analysis of collected data shows that the decision to include three
credit hours of College Algebra was made by the Texas Higher Education Coordinating
Board (THECB), who are trained, knowledgeable and experienced in the area of
academics and postsecondary requirements. Specifically, collected data shows that the
Texas Education Code, Section 61.822(a) requires the THECB to develop a
recommended core curriculum (which is a list of component areas) and objectives of the
core curriculum. Section 61.822(b) of the Education Code requires each institution of
higher education to adopt the core curriculum, including specific component areas
comprising the curriculum, consistent with the rules adopted by the THECB. Among the
required component areas of the curriculum is a minimum of three required semester
hours in “Mathematics (logic, college level algebra equivalent, or above)”. In accordance
with the above, the UH has identified three courses that meet the THECB’s requirement.
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The THECB allows each university to individually determine how it will present the
required mathematics concepts to its students. Based on documentation provided, the UH
considered a series of alternative methods to present this core course required of all
students. Alternative or equivalent courses, those that satisfy the College Algebra
requirement, are: Math 1310, Math 1315, or TMTH 1335. The evidence further supports
that these decisions were made in a careful, thoughtful manner.
When a recipient receives a request for a substitution, it should determine if the requested
changes would lower academic standards, fundamentally alter the nature of the program
or impose an undue burden on the institution. This complaint raises no issue of undue
burden, so this prong will not be addressed.
During the 1999-2000 school year, in an “ADA Petition Form” dated and signed by the
complainant on February 1, 2000 with an attached letter dated February 4, 2000, she
indicates that she wants to substitute Biology 1310 and COSC 1300 for the 6 hours of
required math. The bottom portion of this form shows signature approval from the
Center for Students with Disabilities (CSD) Director on April 5, 2000 and such form
makes reference to attachments. The Academic Dean denied this request by letter of
May 31, 2000 addressed to the CSD Counselor.
The UH asserted that a request to waive math core requirements would not be approved
because it would constitute a lowering of standards. Generally, the UH asserted that the
rejected modification would lower essential requirements of the Undergraduate program. At
issue in this case is the balance between providing academic adjustments to disabled
students to ensure that the requirements of a program do not discriminate and the UH’s
obligation to ensure that all students meet essential requirements needed to successfully
complete a program of study.
The UH submitted documentation showing that the objective of the mathematics section
component of the core curriculum is to develop a quantitatively literate college graduate and
substituting science for math courses would fundamentally alter the program by nullifying
the UH’s ability to meet the standards set forth by the State Legislature and the THECB.
The UH stated that replacing math with science would lower the academic standards of the
Baccalaureate program by failing to require students to successfully complete a basic
mathematics component.
Information submitted by the UH reveals that the Academic Dean and the Senior Vice
Chancellor reviewed the THECB standards and the three classes identified as containing the
college level algebra component area. They then reviewed the specific science
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courses, which the complainant requested as substitutions and determined that the algebra
core requirements as previously defined were not included in the science courses that she
requested.
OCR obtained information from the UH regarding requests made for course substitution
from the 1994-1995 through 2001-2002 school years. OCR analysis of the information
revealed that the requests for substitution of science courses for the college algebra core
requirement were allowed in the past. However, all but one of these allowed substitutions
was made prior to a change in State law governing core requirements that became effective
in September 1999. Since that time, the UH has strictly adhered to this core curriculum
requirement. In the single instance, subsequent to the change in law, a student requested a
substitution of science for math and was in fact denied; however, he was later allowed to
take an advanced course in logic that contained mathematical concepts. As stated above, the
science classes that the complainant requested as substitution courses did not contain
mathematical concepts.
CONCLUSION
As stated previously, the Section 504 regulation stipulates that academic requirements that
the recipient can demonstrate are essential to the program of instruction being pursued by
a qualified person with a disability or to any directly related licensing requirement will
not be regarded as discriminatory. Further, the regulation implementing Title II indicates
that OCR cannot require a modification of the requirement, if the requested modification
lowers academic standards, fundamentally alters the nature of the program or imposes an
undue burden on the College or University and the modification meets the underlying
reason for the requirement.
OCR found that the UH utilized an appropriate process to determine that the mathematics
section component is an essential academic requirement, consistent with the rules
adopted by the THECB. OCR also found that the UH presented evidence showing that,
upon receiving the complainant’s request for substitution, the UH considered her request
and determined that to substitute science for math would fundamentally alter the nature
of the program and lower its academic standards because the science classes she
requested as substitutions do not contain the mathematics component area concepts
contained in the math core requirement. Thus, based on the foregoing, OCR has
determined that there is insufficient evidence to support a violation of Section 504 or Title II
relative to this allegation.
We are closing this complaint as of the date of this letter. This letter is not intended, nor
should it be construed, to cover any other matters that may exist and are not specifically
discussed herein.
Under OCR procedures we are obligated to advise the complainant and the institution
against which the complaint is filed that intimidation or retaliation against a complainant is
prohibited by regulations enforced by this agency. Specifically, the regulations enforced by
OCR, directly or by reference, state that no recipient or other person shall intimidate,
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threaten, coerce or discriminate against any individual for the purpose of interfering with
any right or privilege secured by regulations enforced by OCR or because one has made a
complaint, testified, assisted or participated in any manner in an investigation, proceedings
or hearing held in connection with a complaint.
Under the Freedom of Information Act, it may be necessary to release this document and
related correspondence and records upon request. In the event that OCR receives such a
request, it will
seek to protect, to the extent provided by law, personally
identifiable information which, if released, could reasonably be expected to constitute an
unwarranted invasion of personal privacy.
Thank you, your staff and Attorney Peeler for your cooperation in this matter. If you have
any questions or concerns, you may contact me at (214) 880-2427.
Sincerely,
Brenda Sadler
Equal Opportunity Specialist
Office for Civil Rights
Southern Division - Dallas Office
cc: XXXXXXXXXX
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