I hope everyone had a happy Thanksgiving.
Before getting started on our blog of the week, I first want to pass on some great news about the blog. Thanks to our very generous readers, my blog made the ABA 100 once again. It is the fourth year in a row for us. I simply could not have done it without you on two different levels. First, many of you nominated me for the ABA blog 100. Second, it is because I have such great readers that I am motivated to put out a blog every week. It is wonderful to see the impact the blog has on readers. Also, it is especially an honor this year because the ABA 100 is quite a bit different than in years past. Unlike past years, there were only 50 blogs making the cut. The other 50 were divided between 25 Twitter handles and 25 podcasts. So, that means a blog’s chances for making it this year were cut in half from prior years. Again, many thanks!! The 2017 ABA 100 can be found here. Finally, I do want to mention that congratulations are in order for Robin Shea, author of the Employment and Labor Insider Law Blog, who made it once again and to Eric Meyer’s Employer Law Handbook Blog, who made the hall of fame.
On another housekeeping matter, within the next few weeks, I will be posting the 10+1 most visited Understanding the ADA blog entries of the year as determined by you. It is always 10+1 because I like to include the ADA audit higher education version blog entry no matter what as that blog entry is so critical to those in higher education. The rest of the blog entries are the 10 most visited blog entries of the calendar year. So, be on the lookout for that.
This week’s blog entry, Gati v. Western Kentucky University, talks about the fundamental alteration defense in academia. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the categories.
In this case, you had a veteran with a disability pursuing a Masters degree in mental health counseling. He lived close to Western Kentucky’s Elizabethtown campus but over an hour drive away from its main campus in Bowling Green. His disability renders him unable to sit for longer than one hour at a time. After moving his family to Kentucky, he met with a graduate admission counselor to discuss the graduate program in mental health counseling. There was some dispute as to what was said at that session, but nevertheless, he got himself admitted to the University and pursued a Masters degree in counseling. He completed two semesters without issue. However, when he attempted to register for the fall 2011 semester, he found out that the classes required for his counseling degree were only offered at the main campus. At that point in time, he informed the head of the program that he could not attend classes in Bowling Green due to his disability and requested a variety of accommodations, including: priority registration and class selection; and videoconferencing technology and alternative class delivery. Those requests were denied. More particularly, the Vice President of Student Affairs said he had consulted the head of the department and found out that the particular accommodations requested presented particular problems, including: the inability to determine the student’s mastery of the course content via television; the inappropriateness of using television to deliver a mental health counseling course; the activity conducted in classes and the skills development procedures used in those classes were not appropriate for televised delivering; classes at issue required students to get in small groups and look at each other in the presence of one another so that they could have direct counseling interactions and receive immediate feedback; and counseling students needed to learn about body language, posture, and communication style, which is very difficult to discern when somebody is sitting behind a table pushing a button on a microphone. The General Counsel for the University had other reasons as well, including: University did not have to sufficient faculty to teach the courses in Elizabethtown; accreditation standards limited the number of courses faculty could teach; the limited number of faculty in the department limited the number of courses that could be offered at any one time in any single location; and accreditation standards required part-time instructors to be properly credentialed, and there simply were not enough credentialed instructors due to market demand. After receiving all of this, Gati filed suit alleging violations of the ADA and the Rehabilitation Act and the KCRA. Both sides moved for summary judgment.
In granting summary judgment for the University, the court reasoned as follows:
- Making out a claim under the ADA means showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified; and 3) plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under the program because of his disability.
- A person is otherwise qualified to participate in the program if the person with a disability can meet its necessary requirements with reasonable accommodations.
- It is up to the plaintiff to propose an accommodation and prove that it is reasonable.
- Fundamental alteration is a defense when refusing to make requested accommodations.
- The law does not require an educational institution to lower or to affect substantial modifications of standards to accommodate a person with a disability.
- While the reasonableness of an accommodation is a fact specific inquiry, courts must also give deference to professional academic judgment when evaluating the reasonable accommodation requirement.
- The head of Western Kentucky’s Mental Health Counseling program testified that using alternative delivery for the particular classes the plaintiff needed was inappropriate for several reasons: 1) class interactions among students, and class activities, and skill development procedures could not be delivered by TV; 2) counseling students need to learn body language, posture, and style of communication, which is very difficult to discern when somebody is sitting behind a table pushing a button on a microphone; and 3) the classes at issue required students to have face-to-face counseling interaction so that they could receive immediate feedback from their instructors, which is also not possible in a television format. Accordingly, the testimony shows that delivering the courses in a television format would substantially modify the program standards, and the court has to defer to the professional academic judgment of the head of the program and the other faculty the head of the program consulted.
- The law does not require accommodations substantially altering academic standards.
- Western Kentucky had insufficient faculty at the Elizabethtown campus and a market shortage of the credentialed part-time instructors existed. Accordingly, increasing the current load of faculty members or hiring noncredentialed part-time instructors would risk its accreditation. The loss of accreditation would constitute a substantial modification of the program standards, which is not required by the law.
- What this case shows is the importance of the two-step process discussed in this blog entry. Here, it does not appear that the mental health counseling department had developed its essential eligibility requirements, but when approached with the reasonable accommodation requests, they did do an extensive analysis as to whether the reasonable accommodation requests would fundamentally alter the nature of the program. The department as well as the other departments of Western Kentucky would be well advised now to engage in the two-step process discussed in the blog entry referenced in this paragraph so as to be in a better position to deal with this in the future when it arises again.
- In a sense, Western Kentucky did engage in the two-step process sort of because first, the department program came up with the list of bona fide reasons as to why the accommodation wouldn’t work. Then, the General Counsel came up with an additional list of reasons as well, though it isn’t entirely clear what the coordination between the General Counsel and the department was.
- A bit strange when the court says that it is up to the plaintiff to propose an accommodation and prove that it is reasonable because whether an accommodation is reasonable depends upon whether it is not an undue burden or a fundamental alteration (see this case for example, which is also mentioned in ¶ 5 below). Further, fundamental alteration is an affirmative defense.
- The court gave deference to the decisions of the academics but that was because the academics engaged in an in-depth analysis as to whether the accommodations would work. You very well could get a different result, as discussed here, where such an analysis was not done.
- A fundamental alteration defense must be backed up with evidence. For what can happen when the fundamental alteration defense is unsuccessfully used to try to dismiss the case before evidence is brought forth, see this case.
- It doesn’t seem like the plaintiff went through disability services immediately and developed a written plan for dealing with his disability. On the plaintiff side of things, it is virtually always better to get on top of it early and get a written plan in place, rather than either wait and rely on informal discussions or getting a plan in place later when people’s perceptions are cemented.
- Cross-motions for summary judgment are always dangerous from the plaintiff’s perspectives due to the nature of how summary judgment motions are decided. Plaintiff may have been better off arguing a question of fact existed rather than just giving it to the judge to decide, which is the effect of cross-motions for summary judgment.
- The court uses the phrase, “necessary requirements.” I took that to mean “essential eligibility requirements,” which would be the correct title II terminology.
- Moral of the story from the defense perspective: The two step works!