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We recognize that students with certain physical or mental impairments are eligible for 504 protection. We recognize that oftentimes medical diagnosis guides that process. The parent that comes in with the prescription blank, the parent that requests testing accommodations, setting accommodations. We recognize the student who used to be eligible for IEP may be eligible for 504 today. We understand the definition of disability: physical or mental impairment substantially limiting a major life activity. What do we often lose sight of? What do we often overlook? Otherwise qualified. “No otherwise qualified individual with a disability.”
I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about this concept of “otherwise qualified,” and you will see, you’ll hear relevant university and college cases. There are cases that come out of professional schools. There are, interestingly, cases that come out of dental schools, several. Cases that come out of medical school.
“Why, John, would we, in pre-K through 12, have interest in what’s going on in college and university?”
Let’s remember, college, university, private sector is Americans with Disabilities Act (ADA). As we’ve discussed in other segments, ADA takes the same language, uses the same language of Section 504. That means that the principles that the court is looking at are the precise, same principles you need to be considering preschool to 12th grade. The analysis that the court engages in, in “otherwise qualified,” is relevant to your employees. It’s relevant to your students. It’s relevant to your understanding of when one is otherwise qualified to receive accommodation.
Remember that language: “No otherwise qualified individual with a disability.” One must be otherwise qualified. Interestingly, when we look at the landscape of litigation over the last five years, give or take, and you’ll see the ages of these cases coming out of federal courts, this issue of otherwise qualified is a hot topic, which is why we talk about it. That’s why we have this segment for you.
The majority of those cases, although there are several that involve public-school students, pre-K to 12, the majority of these cases are in the college and university setting. But they’re relevant to you because the legal principles are the same. Terms not so hidden in 504’s disability discrimination prohibition. But terms that are often overlooked. And terms which might surprise you are fought about today. We see in many, many cases being litigated against our public schools, pre-K to 12, as well as in the higher education setting, college and university, and in the private sector employment setting, under ADA. We see disputes about whether or not individuals are otherwise qualified.
If an individual, if a person, a student or an employee, is not otherwise qualified, otherwise qualified to complete the essential tasks or duties of the position, to complete the curriculum, to do their jobs, do their work, to complete the program, then that individual, that person, that student, that employee is not eligible for 504 protection.
There is no dispute about whether that student is eligible. There’s no dispute, then, about the reasonableness of the accommodation that might be provided. There’s no dispute about whether or not the 504 Plan has been comprehensively and compliantly implemented.
We’re going to talk about a number of cases today. I know you’re excited about that. How is this issue trending? Where is it trending? What are the concepts courts are looking at? What are the issues that litigants are raising? When we talk about otherwise qualified? It’s a topic that’s hotter than you may think in our practice of 504 eligibility, in our practice of 504 implementation.
We need to keep in mind that persons have to be otherwise qualified for employee. That means they need to be able to complete the essential tasks and duties of their position before we even look at eligibility. We must be certain, in the employment process, that they can complete those functions before we have to look at eligibility.
That doesn’t mean that we can turn someone away on the basis of disability or the basis of diagnosis, because we may not. Let’s remember 504’s direction. 504’s direction is: thou shall not discriminate. However, in looking at objective, functional ability, one must be able to complete the essential tasks or duties of their position before we consider eligibility and accommodation. The same with students. Are they of the correct age? Are they properly residing? If it’s a public-school setting, if it’s college and university (setting), are they able to complete the curriculum? Do they meet your technical standards for admission? That’s what “otherwise qualified” means. Let’s remember that, that’s a precursor requirement to even looking at eligibility.
Let’s look at some cases and let’s consider some current cases today.
A case in the federal court in Massachusetts, involving Fay School. This is a student in a private boarding school, private-school setting. Student presented a diagnosis of attention deficit hyperactivity disorder, brought an action against the private school alleging disability discrimination in violation of ADA. And as we know, and as we discussed in some other segments, ADA, Title II applies to public school.
ADA’s disability discrimination prohibition is the same as 504. So even if you’re not in a private school setting, direction in these cases is relevant to you because the law is almost exactly the same.
That student, that student with attention deficit hyperactivity disorder (ADHD), alleged ADA disability discrimination violation with regard to a breach of contract arising out of that student’s withdrawal from the school for medical reasons in lieu of expulsion. On its face, perhaps the student asserts a valid claim. Climbing inside the facts of the case, the court looked to the student’s performance. The court look to the student’s disciplinary difficulties. The court concluded that the student was not otherwise qualified for protection under ADA for participation in the private boarding school’s day-student program because, as part of the requirements for that school, the school placed great emphasis on so-called honorable conduct, compliance with its disciplinary code, compliance with its expectation for everyday functioning.
It turned out that that student had over 120 disciplinary violations in less than two academic years. The student had cheated, had lied, it’s the language of the court, to his advisor. Major violations of the school’s code of conduct. Even while on final probation.
What does that mean? That means that the student was not otherwise qualified. We’re not even going to look at the ADHD. We’re not even going to look at whether or not there’s accommodation or the reasonableness of the accommodation because the student’s own performance indicated the student was not otherwise qualified to be at the school.
A case from the Third Circuit, United States Court of Appeals in 2008, Millington v. Temple University School of Dentistry. Plaintiff alleged eligibility for 504 and ADA protection on the basis of orthopedic, arthritic neurological impairments, hearing loss, irritable bowel syndrome, premenstrual dysphoric disorder, chronic migraine, chronic pain, neck sprain strain. So, we have multiple diagnoses. We have multiple difficulties. We have a student who I wouldn’t characterize necessarily as medically fragile but certainly presenting with physical and mental impairment.
Her allegations were that Temple University failed to provide reasonable accommodation in response to her request. Failed to provide appropriate extension of time to complete schoolwork and administer makeup exams and appropriate settings. Didn’t allow her to take leaves of absence.
She claimed that after certain actions, Temple dismissed her from the program of dental studies and that dismissal violated her rights under ADA and 504 because she should have been given leaves. She should’ve been given other opportunities to complete the program of studies. The court concluded that the student was not otherwise qualified. Regardless of those multiple, multiple, multiple diagnoses, her dismissal didn’t violate the ADA, didn’t violate the Rehabilitation Act because, again: performance. The student struggled academically from the inception of her studies, even before she had a physical manifestation in school, she slipped on some stairs. Before she requested accommodation.
It was fairly clear that she was not able to perform at the level expected. She was not otherwise qualified to complete the essential tasks or the curriculum. Her academic performance didn’t improve, even when the university granted various accommodation requests. The few suggestions that the university denied, the court concluded, would have fundamentally altered the nature of the school’s program and the expectation.
And let’s remember, and we’ll be speaking more specifically to this in another segment, let’s remember that 504’s direction of prohibiting discrimination does not require you to change your curricular expectations. It doesn’t require you to change the expectations that you have for an employee’s duties. What it requires is that you not discriminate as to performance, as to participation, by the provision of accommodation.
Accommodation is an adjustment. Accommodations adjust duties. They adjust how we complete duties. They adjust how one learns, they adjust how one participates in instruction, shows mastery of information and testing. Accommodations don’t change.
Here, the court’s concluding that the suggestions, the requested accommodations, weren’t accommodations, that they actually were modification requests. You are not expected to modify your standards or your expectations for students. That’s IDEA. That’s IEP, isn’t it? That’s specially designing instruction based on need. We’re not expected to do that for students under 504. We’re not expected to do that for employees.
Again, the court, here, looked at struggling academic performance over a period of years. Even when accommodations had been provided, the student’s academic performance didn’t improve. The university, the court notes, went so far as to even provide a dental assistant in clinical studies. But yet, the plaintiff still wasn’t able to complete the duties, wasn’t able to complete the curriculum. Therefore, not otherwise qualified.
Towson University. Class vs. Towson, in a case coming out of the Fourth Circuit in 2015 raises the interesting question of whether or not, under 504, we should be changing our expectations for medical clearance. Change sounds like modification. It doesn’t sound like accommodation. I bet you know where the court goes in this case.
University football player collapsed on a practice field from heat stroke with liver failure. He brought an action against the university alleging violation of rights under ADA because the university had required a medical clearance to put that student back on the field. I’m sure you can understand why. We’ve got a student who experienced a significant medical condition. We’ve got a concern about that student’s safety. We want to make sure that that student’s going to be safe. We don’t want to put that student back on the field, where the student may experience another medical crisis, collapse again, suffer from even more significant difficulty. Obviously, there would be exposure there. The simple request is for medical clearance.
Very creatively, the football player alleges, on account of diagnosis, on account of medical status, that it would be exclusion, it would be denial of benefit for the university to request the medical clearance.
The court said no. The requirement of medical clearance, physical clearance, was an essential eligibility requirement in order to determine whether one was otherwise qualified.
Think about it. Is the student otherwise qualified to learn in the classroom? Is the employee otherwise qualified to complete the essential tasks of the employment position? Is the athlete otherwise qualified to physically participate in the sport? An essential inquiry there is whether or not the individual is medically cleared. So the court dismissed the claim. The request, an objective request looking for data for medical clearance, in that circumstance was not discriminatory.
Halpern vs. Wake Forest University Health Services. A case coming out of the Fourth Circuit, United States Court of Appeals in 2012. Again in the higher ed setting here, looking at medical school provision of accommodation.
A medical school student is diagnosed with attention deficit disorder, anxiety disorder, multiple mental impairments that might present one for eligibility under 504. Student was dismissed for unprofessional behavior. The student, very importantly, did not disclose the diagnosis or make a combination request until after the dismissal. This is not a case where a student applies and is accepted and then, in a transparent way, in a proactive way, goes to the school and makes requests for accommodation and presents the diagnosis. Here we have an individual who engaged in a pattern of factual misconduct, is dismissed, and then said, “Wait a minute, you’ve discriminated against me, you’re excluding me on account of my ADD, on account of my anxiety. On account of the manifestation of my mental health impairment.”
Student brought suit, former student then brought suit, alleging dismissal was in violation of ADA and the Rehabilitation Act. The court looked at the facts.
The court concluded that the student was abusive with staff, misrepresented attendance information, missed class without permission, sought to miss and reschedule exams. The court concluded that with or without accommodation, the student was not otherwise qualified. Professionalism in the context of professional school, medical school, was an essential requirement of the program. The student could not meet that requirement regardless of accommodation.
And the court provides some interesting, instructive language, which we should consider: “A school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodation to help the student avoid engaging in misconduct. But the law does not require you, the school, to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.” Essentially, the Rehabilitation Act and the ADA don’t obligate a school to permit a student to continue in an educational program with the hope – the hope – that, at some unknown time in the future, he might be able to satisfy essential requirements. We must be able to complete the essential requirements first.
A case out of the Fifth Circuit 2015, involving the University of Texas Health Science Center, looking at otherwise qualified, again in the context of dental school participation. A dental student commenced an action under the Rehabilitation Act and ADA, alleging failure to provide reasonable accommodation. The court dismissed the claim.
What are the facts of the case?
The student disclosed to the university that he suffered from ADD, attention deficit disorder. Faculty members had awareness that he had some limitations, but the court concluded that the faculty members’ limited awareness of the impact was not sufficient to give rise to obligations under the ADA or the Rehabilitation Act. Since the student didn’t provide the university with any specific accommodation requests or information beyond a simple diagnosis.
As we’ve discussed in other segments, looking at the criteria, looking at collecting real data, looking at plan implementation, diagnosis alone does not beget eligibility. In that case, presentation of the diagnosis itself was insufficient, was not enough.
The court concluded that, without additional information, the university did not have obligation to find eligibility and provide accommodation.
A case involving Midwestern University, 2016. Another professional school case. Plaintiff was a former medical student at Midwestern University. She became depressed, develop generalized anxiety disorder. Plaintiff alleged that she requested reasonable accommodation in light of the disabilities, but the defendant denied the request.
The court concluded that that individual, again, despite diagnosis, was not otherwise qualified because she was failing multiple classes other than the one in which she was requesting accommodations. She was not otherwise qualified to complete the curriculum. She was not otherwise qualified to satisfy program obligations and requirements, thus not protected by 504.
A difficult case coming out of the eastern district of Arkansas in 2014, involving a student, involving a high school student. The Estate of Barnwell — looks at the manifestation of mental health difficulty and the impact of bullying in a high-school setting and asks us, what responsibilities we have, what responsibilities you have, considering that the difficult reality today of harassment, intimidation and bullying. And whether or not, if we choose not to, if we elect not to, if we’re not compliant with state requirements for Harassment, Intimidation & Bullying (HIB), if we’re not progressive in implementing our own HIB rules, individuals are bullied on account of disability ― whether or not we may be exposed, you may be exposed, under 504 and ADA.
Here we have a high-school student who had Asperger’s syndrome and, unfortunately, sadly, took his own life, committed suicide, following alleged bullying. The family, the estate, brought claims against the school district alleging a number of things: alleging civil rights violations, alleging student-on-student sexual harassment. But, beyond that, and for our purposes here today, alleged discrimination under 504, because we have a disability, which might have been the subject, might’ve been a distinguishing characteristic which led to the bullying, which was part of the bullying, which then led to the student committing suicide.
What did the court conclude? The court concluded that the parents had alleged sufficient claims under certain civil rights laws including Title IX as well as the Rehabilitation Act, due to the school’s quote “deliberate indifference” to student on student disability-based harassment.
What’s the take home? The take home for us, in that case, the take home for us in most of these cases is that we need to, and I come back to three principal best practice points, whether it’s IEP, whether it’s 504: we need to be aware of individual need, we need to be aware of compliant process, we need to be aware of progress. Need, process, progress.
Here, otherwise qualified gets to need. The impact of that difficulty. Implementing our eligibility criteria. Is one able to complete our curriculum, to satisfy our curriculum? To honor our code of conduct? Is one, in the university medical school setting, able to complete that rigorous curriculum? In employment, is one able to complete their employment duties? Is one, in second, third, fourth, fifth grade, able to complete the tasks? Is one resident in our district and of the correct age? If the answer to any of those questions is no, that individual is not protected by 504. Remember that, and remember, when we have responsibility, when we do not, before hopefully avoiding litigation, but also within litigation.
Let’s remember that otherwise qualified means something. It’s a substantive element to the criteria in determining for whom we consider accommodation and who we do not. Again, I’m John Comegno from the Comegno Law Group. Thank you. Be careful out there.