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«2016 NAIS Annual Conference February 24-26, 2016 Bruce A. Chudwick, Esq., Leander A. Dolphin, Esq., Julie C. Fay, Esq., Douglas J. Lyons, CAIS ...»

SHIPMAN &

AL

Admissions, Attendance, and

ALGOODWIN,®

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Accommodations:

New Perspectives on the ADA

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2016 NAIS Annual Conference

February 24-26, 2016 Bruce A. Chudwick, Esq., Leander A. Dolphin, Esq., Julie C. Fay, Esq., Douglas J. Lyons, CAIS www.shipmangoodwin.com Hartford Greenwich Stamford Washington, New York, NY New Haven DC © Shipman & Goodwin LLP 2016. All rights reserved.

The Washington Post Someone just used a federal law to bring a live turkey on a Delta flight The Washington Post Jan. 15, 2016 By Yanan Wang https://www.washingtonpost.com/news/ morning-mix/wp/2016/01/15/someone- just-used-a-federal-law-to-bring-a-live- turkey-on-a-delta-flight/ Cornerstones of the ADA

• May not discriminate against otherwise qualified individuals with disabilities

• Must provide reasonable accommodations

• Must make reasonable modifications of policies, practices, and procedures Who is Covered?

An individual who has:

• A physical or mental impairment that substantially limits one or more of the major life activities; OR

• a record of such an impairment; OR

• being regarded as having such an impairment What is “Reasonable”?

An Independent School is not required to

provide an accommodation that:

• fundamentally alters the nature of the program; OR

• creates an undue burden on the school Scenario #1 During an admissions interview with a 3rd grade applicant, parents share that their child has a severe muscular disorder that prevents him from performing normal everyday tasks. As a result, if he were to attend, his parents make it clear that he would need constant one-to-one supervision for safety. The school’s administration believes that it does not have the personnel to adhere to the parents’ request.

Is it OK for the school to deny admission?

Admissions: What Can You Ask?

• Will you require accommodations for the entrance exam or visit/interview?

• Questions must be linked to eligibility criteria:

 Are there any special concerns regarding your child’s education that the school should be aware of?

 Are you aware of anything that might limit your child’s ability to participate in our school’s program?

Admissions: When May You Ask?

• During the initial application process, OR

• Post acceptance, but pre-enrollment (conditional acceptance) Conditional acceptance letter should state  that acceptance is contingent upon the school being able to meet the student’s individual needs Admissions: Best Practices

• Non-discrimination statement

• Handbooks and admission criteria should establish clear standards regarding school’s expectations in all areas

• Veracity clause in application/enrollment contract

• Acknowledgement that school has sole discretion in making decisions regarding admission or re-enrollment How Do We Handle When…

• Parents call the admissions office demanding to know why their child was not accepted?

• Parents ask for copies of your admissions file/records?

• When there is a legitimate health and safety concern?

• You find out after enrollment that the student has a disability and the parents didn’t tell you?

Consider this Case…

• Applicant alleged she was denied admission to a Ph.D. program after she revealed that she had Crohn’s disease. She claimed that the personal interview was focused on questions about her disability. The school’s rejection letter did not provide any explanation; stating only that she was “not a good fit” for the program.

Other Relevant Information:

• GPA of 3.87 was tied for highest in applicant pool

• GRE scores exceeded school requirements • 7 applicants; only she was rejected

• Admitted applicants had lower scores, flaws in application

• OSU eventually gave 5 specific reasons for rejection

• Did not appear that the interview asked any questions about the 5 concerns that were the basis for rejection Sjostrand v. Ohio State University 750 F.3d 596 (6th Cir. 2014)

• District Court initially granted summary judgment in favor of OSU but…

• On appeal, 6th Circuit disagreed, finding enough information to question whether OSU’s legitimate reason for denial was a pretext for discrimination. Claim was allowed to proceed.

• Jury ultimately ruled in favor of OSU.

• Takeaways?

How ADA Has Evolved

• Expanded definition of major life activity

• Must consider impact of disability without ameliorative effects of mitigating measures

• Lower threshold for substantial limitation -need not be severe or prevent the activity

• Impairment can be episodic

• Updated building design standards effective 2012 Impact of ADAAA Changes

• Food Allergies

• Diabetic Students

• Recurring conditions such as:





Migraines, Depression 

• At what point do temporary impairments become disabilities? (e.g. concussions) Scenario #2: Food Allergies A student has celiac disease and cannot eat gluten. The student attends a boarding school that has a mandatory meal plan without any (or limited) gluten-free food options. As a reasonable accommodation, the student asks the school to alter its menu to include gluten free foods.

Must the school provide this accommodation?

Answer: Yes

• Lesley University (DOJ) Settlement (2012)

• DOJ found school procedures to consider request for accommodation were insufficient

• Food allergies may be considered a disability under the ADA, and schools may have to provide accommodations

The University Agreed To:

• Revise policies/procedures to offer gluten-free and allergen-free food options

• Develop individual meal plans for students with food allergies

• Adopt procedures to prevent cross-contamination

• Post notices to identify foods with allergens

• Train staff

• And…provide $50k compensation to previously identified students Scenario #3 A student has been diagnosed with depression and is getting counseling through health services. The school decides to place her on a mandatory medical leave.

The student asks to be allowed to finish her coursework off campus or online. The school denies this request, as well as the request to refund her tuition.

Is the school on solid ground here?

Quinnipiac University DOJ Settlement (2014)

• No. DOJ found school did not consider options to reasonably accommodate

• Quinnipiac agreed to:

 Modify its leave policy so as not to discriminate against individuals with disabilities  Provide training  $17k to complainant; $15k to pay for student loan Scenario #4 An 8th grade boarding student has been diagnosed with ADHD. Over 2 years, he has had significant disciplinary violations, including skipping classes, disrupting class, and finally…cheating and lying. He is not taking his medication regularly. The Head of School decides to expel; but the school ultimately allows him to withdraw for medical reasons.

Parents request that he be allowed to become a day student for the remainder of the year as an accommodation for his ADHD.

Reasonable?

DMP v. Fay Sch. ex rel. Bd. of Trustees 933 F. Supp. 2d 214 (D. Mass. 2013)

• No. The student’s request to continue as a day student was not a reasonable accommodation. The decision to expel was not arbitrary or capricious.

• The court noted that the school “is not required to compromise the integrity of [its] policies, values and/or academic requirements to ‘accommodate’ a student’s disability.”

• Key -- the school’s prior attempts to accommodate had not alleviated the disciplinary violations Best Practices When Considering a Request for Accommodation

• Have a consistent process

• Designate a person(s) to coordinate receipt and response to all requests for accommodation

• Engage in interactive dialogue

• Gather all relevant information about impairment and requested accommodation

• Consult with own medical advisor/experts as needed. Request consent to talk with student’s outside providers if relevant Best Practices

• Determine if impairment substantially limits a major life activity

• THEN…consider if request is reasonable Is it an undue burden?

 Does it fundamentally alter the school’s 

–  –  –

provided similar accommodation in the past?

Best Practices

• May provide requested accommodation or equally effective alternatives

• Balance confidentiality with faculty’s “need to know” Does faculty need to know diagnosis? Or 

–  –  –

Mary McCarthy and Carl. her rabbit. with her roommate. Rachel Brill. andner cog Theo. in thew campus apartment at St. Marys College of Maryland.Can andTheo are emotional support animals. permMed by the college to eve on campus oarwrnoma roe r,e W.w ivwe TWLS Service Animal Provisions • “Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.”

• Individuals with disabilities using a service animal must be permitted in all areas of the public accommodation where others are allowed to go

• Applicable even if the entity has a “no pet” policy Exceptions for Service Animals

• Pets

• Direct Threat

• Fundamental Alteration  DOJ intended for this to be narrow exception

• May remove if animal is out of control, not housebroken

• Must be under handler’s control and care Recent Cases

• The Learning Clinic DOJ Settlement (2013)

• Emerging issue as to whether a school must provide a handler Alboniga v. School Bd. Of Broward Cnty. (Feb. 10,  2015) (reasonable accommodation to require school to provide an adult handler) Riley v. School Admin. Unit #23 (Dec. 22, 2015)  (parents required to provide handler when animal is not tethered to the student and not under voice control) Claims on the Horizon...

Parents claim that the student has a disability called “Electromagnetic Hypersensitivity Syndrome.” His doctor claims that the syndrome developed due to exposure to his school’s new high-density Wi-Fi system.

Parents have asked the school to turn down the Wi-Fi emissions and consider other accommodations while the student is in the classroom or at school.

Does the school need to grant the request?

G. v. The Fay School (D. Mass., filed 8/12/15)

• Threshold question about ADA eligibility?

• Parties reached an agreement to avoid need for injunction; the case is still pending…

• BUT…at least one court has excluded expert testimony that exposure to electromagnetic fields causes health problems on the basis that it is not scientifically reliable Firstenberg v. Monribot, 350 P.3d 1205 (N.M. Ct.

–  –  –

Douglas J. Lyons Bruce A. Chudwick Executive Director Partner CAIS Shipman & Goodwin LLP (860) 572-2950 (860) 251-5114 lyons@caisct.org bchudwick@goodwin.com Resources

• http://www.ada.gov/new.htm

• http://www.nais.org/Magazines-Newsletters/ISMagazine/Pages/Inclusion-in-ExclusiveSchools.aspx

• Frequently Asked Questions About Service Animals and the ADA, 115 LRP 30805, http://www.ada.gov/regs2010/service_animal_qa.html

• Questions and Answers about the Lesley University Agreement and Potential Implications with Food Allergies, http://www.ada.gov/q&a_lesley_university.htm

• ADA Requirements, Service Animals, http://www.ada.gov/service_animals_2010.htm

• ADA Requirements, Testing Accommodations, http://www.ada.gov/regs2014/testing_accommodations.html

• Americans with Disabilities Act and Independent Schools, Maurice Watson, Julianne Story, and Debra Wilson, NAIS, 2010 Rate this session in the 2016 NAIS Annual Conference Mobile App Go to the workshop listing, click on the Actions tab and choose “Rate Session” to provide valuable feedback on Admissions, Attendance, and

Accommodations:

New Perspectives on the ADA



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