In addition to filing discrimination lawsuits in Court, Karen Bower often assists students and families in bringing Complaints to the Department of Education, Office for Civil Rights (OCR).
OCR enforces Section 504 of the Rehabilitation Act of 1973 (“Section 504”), which is applicable to both public and private colleges, and Title II of the Americans with Disabilities Act (“Title II”), applicable to state colleges. The OCR has issued several decisions/resolution letters that address school practices such as pre-admission inquiries, imposing involuntary leaves of absence or placing conditions on students’ return from leave which you may find helpful:
- Gonzaga University – Complaint # 10-95-2059, 11/8/96(pre-admission disability-related inquiry) A school may not make inquiries into any possible accommodations until a student is admitted into a program.
Involuntary Leaves of Absence
- St Joseph’s College – Complaint # 01-10-2171, 1/24/11 (regarded as disabled, separate procedure for students with mental illness) Instead of using the disciplinary process or its emergency suspension process, the school used a Behavioral Assessment Committee (BAC) to remove a student. The BAC process was unpublished and the student was given no notice or opportunity to present witnesses or opportunity to appeal. OCR determined that the school regarded the student as a person with a disability and treated the student differently because of her perceived disability. A school must apply the same procedures as provided to students without disability.
- Spring Arbor University – Complaint # 15-10-2098, 12/16/10 (behavior contract, ) OCR found that the University regarded the student as having a mental disability. It created a behavioral contact which evidenced its belief. In the contract and for readmission, the University required documentation not required of other students for readmission, required the student to seek counseling and take all prescribed medication, and required access to the student’s treatment providers. The University conditioned reenrollment on demonstrating that he could handle a full-time courseload, live on or off-campus, and be successful. Since his withdrawal was voluntary, he had no disciplinary action and was in good academic standing, there was no legitimate basis for these additional requirements.
- DeSales University – Complaint # 03-04-2041, 4/21/05 (cannot stop non-direct threat behaviors) OCR found several problems with the university’s actions: (1) the university cannot require the student to stop non-direct threat behaviors that are a manifestation of his disability as a condition of return; (2) there was no process to appeal the denial of housing; and (3) there were no procedures for resolving disability discrimination claims.
- Marietta College – Complaint # 15-04-2060, 3/18/05 (involuntary dismissal, student with prior suicide attempts and reluctance to pursue counseling). OCR stated that the college did not conduct an individualized objective assessment of his level of risk based on reasonable medical judgment, and did not consider mitigating factors. OCR also found that the student was not advised of his right to challenge the dismissal decision and there was no grievance process.
- Bluffton – Complaint # 15-04-2042, 12/22/04 (student hospitalized after suicide attempt) University did not confer with the student’s medical professionals or records.
- Woodbury – Complaint # 09-00-2079, 6/29/01(self-injury, scope of medical records inquiry) A college does not have a right to unlimited access to all of the student’s medical/psychological records. Specifically, permission for a student to participate in a program may not be conditioned upon the student providing a general medical release giving the institution complete and full access to all medical history and records.
- National University – Complaint # 09-99-2014, 3/23/00(due process, student enrollment agreements, academic and technical standards) OCR stated that: (1) special requirements for students with disabilities are presumptively discriminatory; (2) due process is required before a university suspends or dismisses a student with a disability for failing to meet academic or technical standards; (3) a direct threat defense must be based on individualized assessment of the student’s present ability to safely participate in the program and cannot be based on remote or speculative risk; and (4) a university must identify and explain why a standard is essential before a student can be suspended or dismissed for failing to meet it.
- San Diego Community College – Complaint # 09-98-2154, 12/30/99 (involuntary dismissal, making others uncomfortable). OCR stated that “disrupting the educational process by making others uncomfortable” can not be the basis for disciplinary or adverse action. Conduct should “be used to assess whether and the degree to which she represented a threat to herself or others, not the degree of her acceptance in the higher educational community.”
- Fordham Univ – Complaint # 02-10-2013, 11/17/11 (readmission procedures and documentation) OCR stated that the University must determine on a case-by-case basis what documentation is required to demonstrate that a student is medically able to return; the porecdure must be appliable to all requests for readmission following medical withdrawal, including an actual or perceived mental health condition or a physical condition or injury.
- Georgetown University – Complaint # 11-11-2044, 10/13/11 (readmission conditions) OCR found that the University must have an individualized process for assessing a student’s eligibility for a medical leave of absence and return from leave of absence. Conditions placed on a student’s return must be reasonable, individualized and give significant weight to the student’s treatment provider. The University cannot require the student to engage in employment or volunteer activities or submit letters of recommendation from an employer as a condition of return.
- Guilford College – Complaint # M-02-2003, 3/6/03 (self-injury, re-admission conditions). OCR stated that “educational institutions cannot set as a condition for readmission that a student’s disability-related behavior no longer occurs, unless that behavior creates a direct threat that cannot be eliminated through reasonable modifications.”
- Western Washington University – Complaint # 6/19/91(conditions of return, psychological evaluations).
- Skagit Valley College – Complaint # 10-92-2082, 4/21/93 (student denied re-enrollment, re-enrollment conditions, fear of disruptive behavior) OCR concluded that school violated ADA by acting on their beliefs about the student’s diagnosis and consequent ability to function in the school environment, rather than the objective opinions of medical professionals or a specific, identified direct threat to health or safety. Further, requirement that she provide proof that she wouldn’t be disruptive was discriminatory as it was based on school’s fears, rather than the available professional opinion.