As everyone knows, my blog entries usually go up on Monday of a given week. Obviously, I missed last week. Last week my daughter was on break and my wife also took the week off. So, lots of family things going on. We also have out-of-town company in for an extended weekend, but I am getting a moment to myself. So, here goes. Today’s case discusses the issue of whether the failure to repeatedly provide reasonable accommodations to a student is a continuing violation or a series of discrete acts for purposes of the statute of limitations beginning to run with respect to the ADA and the Rehabilitation Act.
The case of the day is Keith-Foust v. North Carolina Central University, a decision from the U.S District Court of the Middle District of North Carolina that came down on August 11, 2016. As is usual, my blog entry is divided into categories: facts; court’s reasoning with respect to the statute of limitations involving claims against the law school; court’s reasoning regarding the Masters of Public Administration program; court’s reasoning regarding retaliation; court’s reasoning with respect to suits against individuals in their individual and official capacities; and (a huge amount of), takeaways. The reader is free to focus on any or all of the categories.
Keith-Foust, the plaintiff, is visually impaired, legally blind, as a result of glaucoma that she had while she was in her early 20s. Even so, she obtained two undergraduate degrees, business administration and also double majors in psychology and political science, from North Carolina Central University. In the spring of 2013, she applied for admission to North Carolina Central University’s School of Law. Despite her accomplishments and grade point average of 3.70, the school did not offer her unconditional admission even though it offered unconditional admission to non-disabled students with comparable credentials. Instead, they admitted her into its performance-based admission program, a program set up for those who show promise of success in law school but do not qualify for unconditional admission. That program is a two week program during which students attend class and then are evaluated for admission into the law school based upon their academic performance and professionalism during the program. Since 2008, the plaintiff had always required and utilized reasonable accommodation during her enrollment at North Carolina Central University and had met with the Office of Disability Services prior to the start of each semester. So, she did the same thing prior to starting the performance-based admission program. When meeting with the Office of Disability Services, she requested several different accommodations including: special seating in the front of the classroom; access to a table for her equipment; recorded lectures (for which she would provide the device); use of her personal laptop equipment; absences for medical appointments; electronic copies of handouts/class materials via email sent before class; an oral description of video shown in class as needed; a personal assistant in class to provide reader services; extended time on exams/tests (double time); separate setting for all exams/tests; use of the laptop to access assistive technology on tests; and extended time on assignments as needed (two additional days). North Carolina Central University did not object to any of the accommodations and orally agreed that the plaintiff was entitled to these accommodations during the performance-based admission program. North Carolina Central University determined that these accommodations were reasonable to afford the plaintiff equal access during the performance-based admission program and included the accommodations in an accommodation plan. The Director of Student Disability Services told the plaintiff that the accommodation plan was the official plan that would be used during her enrollment in the program and that she would be provided all of the accommodations under the plan. Further, although not among her requested accommodation, the Director Of Student Disability Services also told her that she would be provided a CCTV, but then took that away due to administrative issues and it was not included in the plan. Both the Director of Student Disability Services, on May 29, 2013, and the plaintiff, on May 31, 2013, signed the accommodations plan.
On May 30, 2013, the Associate Dean for Academic Affairs at the School of Law emailed the plaintiff a memorandum in which he explained how some but not all of her accommodations would be implemented. He did not mention the accommodations for providing for an oral description of video shown in class, access to a table for equipment, or providing for extended time on assignments. Further, unbeknownst to the plaintiff at the time, he responded to an email from one of her instructors stating that he purposely omitted from his memorandum the accommodation of extended time on assignments because he considered that to be an impractical request. He stated that it would be better to discourage her from the idea of receiving extended time on assignments so that it would not be an expectation later. He went on to say that if the plaintiff insisted on being provided the extended time on assignments, he would be forced to tell the plaintiff that he did not believe she was being realistic about what would be expected of her and that law school was not the route for her. It wasn’t until one year later that the plaintiff first learned of this email.
Once enrolled in the program, North Carolina Central University failed to accommodate her as it had agreed. More specifically: they did not provide her with special seating in the front of the class thereby requiring her to arrive earlier than other students in order to get preferential seating. She also had to ask classmates on occasion to relocate; the class was held in the moot court courtroom, which only had stadium seating, and the school failed to make available to her access to a table substantial enough in size to hold her equipment; professor did not consistently email her class materials before class, instead sometimes providing the material by a flash drive almost immediately before the start of class leaving little to no time to upload the materials and sometimes not even providing class material beforehand at all; during mandatory tutoring sessions, her tutor told her that they were not aware they needed to accommodate a blind student and conducted the sessions using class materials in an inaccessible format; she was required to complete a final oral argument during which she, like other students, was allowed to use notes. However, to do that, she required access to her personal equipment but the school failed to provide access to a table to hold her equipment, access to an electrical outlet in front of the classroom during her argument, and extended time to complete her oral argument; although she used a laptop for her exams as required under the plan, performance-based admission faculty transcribed the exams via handwriting so as to protect anonymity because other participants handwrote their exams. However, the staff members carelessly and inaccurately transcribed their answers and made costly grammatical errors not present in her typed exam answers.
Frustrated that the school did not provide her required accommodation during the program despite her diligent efforts, she met with the Chancellor of the School on or about Jun 20, 2013 to discuss her accommodation. She said that she needed access to a CCTV but the Office of Student Disability Services failed to provide it. About a week later, she received a letter from the Assistant Dean of Admissions at the School of Law informing her that she had been denied admission to the school of law based on the valuation from the performance-based submission program. That same day, the plaintiff emailed the associate Dean for Academic Affairs at the School of Law and the Chancellor of the school and requested a hearing and copy of her evaluation. The Associate Dean for Academic Affairs at the School of Law replied that there was not a formal appeal process or hearing from the decision not to admit her to the School of Law after her participation in the program and copied in the Chancellor, and the Dean of the School of Law, and the Assistant Dean of Admissions of the School of Law on that correspondence.
She then enrolled in the fall program of the school’s Masters of Public Administration. The school determined that she required various accommodation, including being provided electronic copies of class materials on a jump drive before the start of each class. Nevertheless, the school failed to provide the class materials until the plaintiff notified it on four separate occasions that she was not being provided the accommodation. Further, despite assurances to the contrary, a CCTV was not provided until months into the fall semester. Things didn’t get better when after taking leave during the fall of 2013, she reenrolled for the fall of 2014. She was supposed to receive several different accommodations, but was not provided with those accommodations as required until three weeks after the start of classes. She then took a medical leave on October 8, 2014, and did not return to the Masters of Public Administration program. She brought suit alleging violations of the ADA, §504 the Rehabilitation Act, retaliation, tortious interference with contract; fraud, negligence, negligent misrepresentation, and unfair and deceptive trade practices. The court wound up dismissing all of the claims except for the ADA and §504 claims.
Court’s Reasoning: Statute of Limitations Law School
- The most applicable statute of limitations for the ADA in North Carolina is the Person with Disability Protection Act. That act provides a two-year statute of limitation for non-employment claims.
- A civil rights claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.
- In the Fourth Circuit, a defendant’s failure to accommodate constitutes a discrete act rather than an ongoing omission for purposes of the statute of limitations.
- It would have been readily apparent to the plaintiff that North Carolina Central University was discriminating against her each time it failed to accommodate her. Therefore, each discrete act starts a new time period for that act.
- The parties did not argue whether a failure to accommodate occurred each day during the performance-based omission program that North Carolina Central University failed to provide various accommodations in the accommodation plan or whether a failure to accommodate occurred only when the plaintiff renewed her request for an accommodation that was not being provided and the school subsequently failed to provide the accommodation. That is, for the action to accrue must the plaintiff have renewed her request for an accommodation in order to trigger a possible failure to accommodate?
- The parties also did not argue that if the plaintiff was required to renew her request for accommodation and, if so, to whom much she had made that request to so that North Carolina Central University would be responsible for subsequent failure to accommodate.
- Parties also did not argue that if a renewed request was required, whether both renewed request and the subsequent failure to provide the accommodation must occur on or after June 11, 2013 or whether it was sufficient that the subsequent failure to provide the accommodation occurred on or after June 11, 2013.
- The memorandum from the Assistant Dean of the law school did not purport to change the accommodation plan and in any event, the plaintiff did not know until after she began the program what if any accommodation were not being provided, which of course turned out to be more than just the three accommodations missing from the memorandum. Further, the plaintiff did not allegedly learn of the email to her writing instructor until one year later. Accordingly, the intentional discriminatory act allegations stemming from the letter of the Assistant Dean was timely.
Court’s Reasoning MPA Program
- Proving a case of discrimination under title II of the ADA or the Rehabilitation Act (assuming federal funds, which is the case here), involves showing: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified to receive the benefits of a public service, program, or activity; and 3) plaintiff was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.
- With respect to the third prong, the Fourth Circuit has recognized three distinct grounds for relief and they are: disparate treatment; disparate impact; and failure to make reasonable accommodations.
- More than enough facts were alleged to show that the school may be subject to a failure to accommodate claim. In particular, receiving materials immediately prior to class inhibited her ability to participate meaningfully in the class; she was unable to view course materials written on the board without the assistance of a CCTV, and since she was not provided with appropriate magnification equipment she suffered unnecessary strain on arise thereby requiring her to take leave from school during the fall of 2013. The failure at the start of both the fall 2013 and fall 2014 semester to provide electronic copies of course materials before class created an intolerable environment for the plaintiff and resulted in a medical leave from the program. The school’s failure to provide a CCTV until months into the fall 2013 semester prevented the plaintiff from doing much of the course material during that time and caused additional unnecessary strain on her eyes that caused her to take leave in the fall 2013.
Court’s Reasoning Retaliation
- The court held that the facts as alleged did not rise to the level of retaliation because such conduct was not of the level that would deter a reasonable student from asserting her rights.
Court’s Reasoning regarding Suits against Defendants in Their Individual or Official Capacities
- The ADA and the Rehabilitation Act do not provide causes of action against individual defendants in their individual capacities.
- The plaintiff was not seeking injunctive relief from individuals in their official capacity, and therefore, the official capacity claims must fail.
- I am a big believer in utilizing the Office of Civil Rights of the Department Of Education whenever possible. The thing to keep in mind with OCR is that they have a six-month statute of limitations. There are many advantages to utilizing the Office of Civil Rights process. First, it isn’t litigation but much more administrative in focus. Second, it gives you an excellent chance to assess the strengths and weaknesses of your case as well as the strengths and weaknesses of the other side all for little cost. Third, it is essentially free discovery. Fourth, schools take Office of Civil Rights investigations very seriously. Finally, if the Office of Civil Rights does get involved it completely changes the dynamic of the case as now the federal government is involved rather than just a plaintiff with a disability whose resources are often not substantial. It seems to me, that a filing with the Office of Civil Rights would have been in order right after she was formally dismissed from the performance-based admission program. Same could be said for when she had to leave the Masters of Public Administration program.
- The allegations, if proven, are fairly egregious and so one wonders whether the plaintiff does not have a good shot at proving deliberate indifference so as to be able to get damages (see this blog entry).
- The plaintiff was very upfront about her disability and tried to get on top of it from the get go; a strategy that I highly recommend for students with disabilities. It isn’t a bad idea if such a person is running into obstacles to get legal counsel involved sooner than later.
- It is a State-By-State situation as to what is the most applicable statute of limitations with respect to ADA/Rehabilitation Act claims. The statute of limitations can be all over the place, 1 to 3 years is not unusual. Most often times it seems to be two. In any event, legal research is needed every time the situation arises.
- Continuing violation doctrine exists in theory but it is almost impossible to convince a court that such a violation exists. In the Fourth Circuit anyway, failure to accommodate claims are a discrete act.
- In this case, the court held that the allegation did not rise to the level of retaliation. That said, one wonders why an interference claim was not alleged since that is a much lower standard than retaliation.
- The overwhelming line of authority is that the ADA and the Rehabilitation Act do not provide a cause of action against individual defendants in their individual capacity.
- Disability services need to take the lead. In particular, should a school of the University or faculty have a problem with the accommodation that disability services comes up with, they need to interface with disability services in order to straighten it out. Also, the programs of the particular school of the University would be wise to have its essential eligibility requirements in order as seen in this blog entry.
- Whether a reasonable accommodation request is impractical is not the standard, rather the question is whether an undue burden or a fundamental alteration is involved.
- I don’t understand the need for the exams to be handwritten in law school.
- Never forget about the Job Accommodation Network.
- An ADA compliance audit, which might cost you a decent sum of money up front, may save you a bunch of money later.
- Make sure you have a §504/ADA coordinator as well as a §504/ADA grievance procedure.
- The court said that it was readily apparent that the plaintiff was being discriminated against each time a reasonable accommodation request was denied. As someone who has represented persons with disabilities in graduate schools, I can say that to the student it isn’t necessarily so readily apparent. Oftentimes, to the student it appears that it is all part of a continuing process rather than separate items with their own cause of action. For example, see this unpublished case, Pollowitz v. University of Medicine and Dentistry, 2007 N.J. Super. Unpub. LEXIS 1269 (N.J. App. July 27, 2007), holding that depending upon what discovery revealed, a constructive discharge of a student by a university was a possible cause of action and that the actions leading up to that could be a continuing violation.
- Considering the open questions, it may make sense if you are representing a plaintiff and the school has not been forthcoming with its reasonable accommodations, to make the renewal request. Once that happens, it may make sense to confirm after a period of time, that they have no intention of following through on the accommodations. That way, it is pretty clear as to when the statute of limitations starts to run.
- The fact pattern of this case is such that one wonders how the burden of proof will work. See this blog entry .
- The prima facie case for title II of the ADA and for §504 the Rehabilitation Act cannot, despite the court’s assertion to the contrary, be the same as causation is different. That is, causation under title II of the ADA is “by reason of,” and causation under §504 the Rehabilitation Act is, “solely by reason of.” The term used by the court “on the basis of,” is actually not a title II or §504 of the Rehabilitation Act concept at all. Rather, it is found in title I and in title III of the ADA.