Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

universities

Web Accessibility and Universities

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In a previous blog entry, which I keep on my greatest hits section of my blog, I discuss what you need to do with respect to auditing your educational institution for ADA compliance. In #14 of that blog entry, I mentioned that whatever services are being offered on the Internet, the institution needs to investigate and ensure that those services and programs are accessible to people with disabilities. In another blog entry, I talked about when a private entity needs to have all of its operations accessible to persons with disabilities per the Rehabilitation Act if they take federal funds. In light of those blog entries, I am struggling to understand the approach taken by the defense team of MIT and Harvard in the MOOC accessibility cases. In identical filings, the Department of Justice in their statement of interest rebuts the claims of both Harvard and MIT. In short:

1. The doctrine of primary jurisdiction is not applicable. Primary jurisdiction is a doctrine that says the court should defer the case until proper rulemaking ensues. In this case, that would be until the Department of Justice promulgates a final title III rule regarding website accessibility standards. The Department of Justice says that doctrine should not apply for several reasons:

A. The title II regulations regarding web accessibility were scheduled for publication in spring of 2015 but is not yet published. The title III regulations applicable to web accessibility are scheduled for publication in the spring of 2016 and then a period of public comment must ensue before the final rules are issued. Finally, the scope and timing of any final rule on web accessibility is speculative and “far from imminent,” and while the title III proposed rule is currently scheduled for spring 2016 publication, there is no scheduled date for publication of the final rule (I might add that one wonders if the presidential election will affect the timing of these regulations or if the regulations will come out at all prior to the election).

B. Since title III rulemaking on the subject is not imminent, dismissing or staying the case on primary jurisdiction grounds significantly prejudices plaintiff with disabilities.

C. The effective communication provisions are something easily within the competency of the court and no specialized agency expertise is necessary to address those claims.

2. From the statement of interest, both Harvard and MIT argue two points. First, websites are not subject to title III’s barrier removal requirements nor are they subject to the Rehabilitation Act. Second, online programming does not need to be captioned because a place of public accommodation does not need to stock accessible or special goods. The Department of Justice is having none of it because:

A. MIT and Harvard, as places of education are places of public accommodations under the ADA and as such are subject to the general nondiscrimination and effective communication requirements.

B. Communication barriers need not be structural since title III facilities are required to provide auxiliary aids and services to persons with disabilities.

C. The accessible goods or inventory approach does not fly because persons with disabilities are not seeking accessible goods or a different inventory, rather they are only seeking access to the same content that the universities make available to the general public.

D. § 504 applies to anyone that is a qualified individual with a disability. Further, the final regulations implementing § 504 of the Rehabilitation Act, in particular 34 C.F.R. § 104.4, require; that a recipient of federal funds ensure qualified individuals are given the opportunity to participate in or benefit from an aid, benefit, or service equal to that afforded others; ensure that equally effective aid, benefits, and services are given so that otherwise qualified persons with disabilities have the opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as persons without disabilities; and prohibits the provision of an aid, benefit, or service that is not as effective as that provided to others.

E. Since MIT and Harvard are offering its online programming to all members of the general public, plaintiffs are qualified/otherwise qualified because they meet the essential eligibility requirements for such services.

F. DOJ guidance makes clear that colleges and universities must ensure that emerging technology when it is required to be used must be implemented in a way that afforded persons with disabilities an equal opportunity to participate in and benefit from the technology.

Takeaways:

1. Interesting that the Department of Justice mentions in its filings the 504 implementing regulations and the Rehabilitation Act, but they don’t mention what was discussed in this blog entry that talks about how a place of education that takes federal funds must have all of its operations accessible to persons with disabilities.

2. The Department of Justice point that accessible goods and a different inventory are not what is involved here, but rather accessibility to what is being offered by the University involved is, seems to me to be fairly compelling.

3. Within the definition of auxiliary aids and services under the ADA, it is pretty clear that it is just not structural barriers that are involved, but all kinds of communication barriers.

4. The effective communication regulation is a final regulation, and therefore the courts have to give it Chevron deference (hard to believe that this regulation would not satisfy the requirements for Chevron deference).

5. If the University is indeed offering a product to all members of the public, then any member of the public with a disability would be an otherwise qualified person with a disability as the only essential eligibility requirement would be being a member of the public.

6. Don’t expect web accessibility rules, particularly title III rules but perhaps title II of rules as well, anytime soon.

In short, I wonder if there is something missing from what I know from this statement of interest filing because I am really struggling with the approach that is being apparently taken by the universities.

We will have to stay tuned for further developments.

Are fraternities subject to title III of the ADA?

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This blog entry is divided into separate categories: introduction; the statutes; the case of the week; and takeaways. You probably will want to read all of it, but you still have the option to focus on any of the categories you like.

I
Introduction

Recently, I ran across this article, in my Google alerts. It shouldn’t surprise anyone that I have a Google alert set for Americans with Disabilities Act. Well, I wanted to find out if this was indeed the case. After checking with my colleague, Richard Hunt, who I consider to be a Fair Housing Act maven, and doing further research, I came to the conclusion that the article may or not be correct and here is why:

II
The Statutes

1. 42 U.S.C. § 3607 is the private club exception In the Fair Housing Act, but all it says is that a private club can limit housing to members.

2. 42 U.S.C. § 12187 is the private club exception for title III of the ADA. It states that title III of the ADA does not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entity controlled by religious organizations, including places of worship. This means we have to go to the provisions of 42 U.S.C. § 2000-a(e) to see what that says.

3. 42 U.S.C. § 2000a(e) says that title two of the Civil Rights Act does not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to customers or patrons of an establishment within the scope of 42 U.S.C. § 2000a(b).

With respect to fraternities, an argument can be made that fraternities are open to the public. After all, both members of the fraternity and nonmembers of the fraternity will frequently visit fraternities. Second, a fraternity is providing lodging to a transient guest (see paragraph 4 immediately below).

4. 42 U.S.C. § 2000a(b)(1) covers any inn, hotel, motel, or other establishment providing lodging to transient guests other than an establishment located within a building containing not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.

With respect to fraternities, the proprietor exception would not apply.

III
The Case of the Week

A
Facts

But you don’t have to take my word for it. The US Court of Appeals for the Third Circuit has spoken on this as far back as 2006 in Regents of the Mercersburg College v. Republic Franklin Insurance Company, 458 F.3d 159 (3d Cir. 2006). In this case, the insured operated a private secondary boarding school. A school building that contained dormitory housing was damaged by fire. The insured claim that an ordinance and a endorsement to its property insurance policy covered the costs to bring the building into compliance with the ADA.

B
Court’s Reasoning

In holding that the costs to bring the building into compliance with the ADA was covered by the policy, the court reasoned as follows:

1. Private school dormitories are transient lodging as defined by the ADA regulations.

2. Dormitories are part of boarding schools and therefore are places of education.

3. Appendix A to the ADA Accessibility Guidelines specifically includes dormitories.

4. Chapter 3 of the Appendix A to the ADA Accessibility Guidelines explicitly states that transient lodging includes a building or facility containing sleeping accommodations and also mentions dormitories.

5. Student housing is an integral part of the boarding school experience and therefore is one of the facilities, privileges, advantages, and accommodations of a place of education covered by title III of the ADA.

6. Places of education are subject to title III of the ADA.

7. A technical assistance letter from the Department of Justice dated May 2, 1994 takes the position that all aspects of a school’s student activities and of the educational experience are covered by title III of the ADA. This letter specifically references fraternity houses owned and operated By a University.

The court wound up remanding the case because whenever alterations are made, the path of travel regulations kick in. That means, conceivably the undamaged portions of the dormitory might need to undergo ADA renovations. As a matter contractual interpretation, the insurance company would not be liable for necessary renovations to undamaged areas of the dormitory.

IV
Takeaways:

1. With respect to public universities, as we have seen many times before in this blog, title II of the ADA applies to everything that a public entity does. Further, since places of education are involved, to satisfy the Rehabilitation Act all of the operations of the place of education must be accessible to persons with disabilities. Since just about all universities take federal funds, the Rehabilitation Act does come into play in just about all cases.

2. This same technical assistance letter is perhaps overstated by the Third Circuit. In this letter, the Department of Justice states that if the fraternity house is not owned or operated by the University and will not be owned or operated by it in the foreseeable future, the house may be exempt from ADA coverage even if the house otherwise fits into one of the categories of places of public accommodation because it would be exempt as a private club. The factors to consider in whether a private club is involved are:

A. Whether the club is highly selective in choosing members

most fraternities would be

B. Whether the club membership exercises a high degree of control over the establishment’s operations

This may be highly variable

C. Whether the organization has historically been intended to be a private club

probably yes

D. The degree to which the establishment is opened up to nonmembers

probably frequently

E. The purpose of the club’s existence

This one is interesting because a fraternity doesn’t really have the same reason for being as an exclusive country club does, though some of those reasons do exist.

F. The breadth of the club’s advertising for members

Fraternities probably focus on the college community but one would need to know all of the facts

G. Whether the club is nonprofit

H. The degree to which the club observes formalities

It would take research on my part to determine what formalities are being referred to. Corporate formalities? Formalities that make the fraternity setting stand apart?

I. Whether substantial membership fees are charged

Undoubtedly fees are charged, but whether they are substantial would take further research.

J. The degree to which the club receives public funding

This one is very interesting because if a public university is involved, the fraternity is in some way probably receiving public funds.

K. Whether the club was created or is being used to avoid compliance with a Civil Rights Act.

This one is also interesting because the Americans with Disabilities Act is a Civil Rights Act.

A question that arises is whether all of these factors must be satisfied or whether, like revenue ruling 87-41 (dealing with independent contractors), no one particular factor is dispositive, rather you have to look at it in the broad sense. Also, this technical assistance letter says that they are covered by title III to the extent they open up their establishment to the general public for purposes falling within one of the categories of places of public accommodation. So, if the fraternity host events open to persons other than fraternity members and their guests (in the context of a fraternity, I am not sure what the phrase, “and their guests” refers to), the fraternity must be accessible in their public areas during those events. The more often those public events occur, the higher the obligation to make the publicly use areas accessible. This also doesn’t answer the question considering the nature of fraternities. An argument can be created that with respect to fraternities, even the living quarters would be public areas or areas that the public frequently uses.

3. As we have discussed previously, it is now unclear as to just how persuasive interpretation of regulations, such as appendices, are going to be.

4. So how do you deal with this situation? First, is it a private university? Second, is the private university owning and operating the fraternity? Third, if not, is the fraternity a private club? Fourth, if the fraternity is a private club, have you gone through the criteria in this letter? (Don’t forget about applicable case law here as well). Fifth, if it is a public University, is the fraternity receiving federal funds. If so, the Rehabilitation Act would apply and so would accessibility obligations. If not, go back to the private club analysis. Finally, if it is a public University and even if the fraternity is not receiving federal funds, are the fraternities such an integral part of the educational experience that denying accessibility would mean not allowing a person with a disability to benefit from the privileges, advantages, and benefits of an education at that institution?

Lots to think about and that leads to…. make sure you have a knowledgeable attorney to help your sort these things out.

Why all colleges, universities, and graduate programs need to do the two-step (with apologies to the state of Texas): essential eligibility requirements and direct threat

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Just recently, the Department of Justice, the Department of Health and Human Services, and the Department of Education joined forces to issue a letter (the link will take you to the press release. In that press release, there is another link to the letter itself), to schools of medicine, schools of dentistry, schools of nursing, and other health-related schools with respect to their views on these kinds of schools discriminating against students with hepatitis B. In short, all three agencies make it clear that discrimination against students with hepatitis B is in violation of the ADA and “will not be tolerated” (those words are actually used in the press release). This blog entry discusses a preventive system that educational institutions can set up so that they can deal effectively with direct threat issues whenever they arise. That preventive system. the two-step (with apologies to country music and the great State of Texas), works as follows.

First, in an article that you can find on my blogroll, I discussed the first step, which is how a college, university, or graduate program needs to go about determining what are their essential eligibility requirements. The process has to happen because otherwise the institution is going to be on very flimsy ground with respect to denying a request for an accommodation. That article discusses a five step process. While that process is described in the article, just to reiterate it here it includes:

1) setting up a departmental committee to assess what are the essential eligibility requirements of the program. That is, what are the fundamental things that the Department wants the student to be able to do with respect to that course of study;

2) consulting with legal counsel to make sure that those essential eligibility requirements are fundamental and that the essential eligibility requirements do not create a situation where persons with disabilities are being screened out. Legal counsel will also want to make sure that essential eligibility requirements are not confused with major life activities and that essential eligibility requirements of the course of study are not confused with the profession itself;

3) having the departmental committee in conjunction with legal counsel draw up the essential eligibility requirements and then having them submitted to the department for a vote;

4) once the Department has signed off, make sure the University or college disability services Department have a copy of those essential eligibility requirements. If at that Department vote, changes are made to the essential eligibility requirements, then repeat steps 2 (legal counsel), and step 3 (departmental vote).

5) make sure those essential eligibility requirements are known to all stakeholders throughout the college and University system.

Adopting this approach means that you should be able to successfully fend off arguments that the essential eligibility requirements were not determined by knowledgeable stakeholders. There has been case law as well as OCR letters creating problems for colleges, universities, etc. when the necessary expertise is not involved. Of course, critical for this system working is that everybody understand their role. The people in the department are the subject matter experts (figuring out what is fundamental), while legal counsel is the legal expert (in addition to what has already been mentioned above, making sure that the department understands the nature of what is fundamental under the ADA, and by making sure that the criteria the department comes up with do not screen out persons with disabilities).

Before moving on to the second step, it would also be well worth considering to have an ADA grievance procedure in place. If the place of higher education is a public entity with 50 or more employees, they need to have such a procedure in place anyway. Having a grievance procedure in place would allow for the problem being solved long before it ever gets to litigation, especially if you have knowledgeable people involved in the resolution process. For that reason, even if you are not mandated to have an ADA grievance procedure, it makes sense to do so.

The second step is figuring out whether that person is a direct threat. The ADA does not protect someone if they are direct threat to themselves (Title I regs) or others (Title I, II, and III regs). See Chevron v. Echazabal 536 U.S. 73 (2002) (Title I case). How do you go about determining whether someone is a direct threat to themselves or others? Any determination of direct threat must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. That’s all fine, but what are you considering when you are trying to determine what is a reasonable medical judgment based upon the most current medical knowledge and/or the best available objective evidence? The answer to that question come from another U.S. Supreme Court case, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In particular, the Supreme Court said (on page 288 of their decision), that in determining direct threat you had to consider all of the following:

1) the nature of the risk (how the disease is transmitted);

2) the duration of the risk (how long the carrier is infectious);

3) the severity of the risk (what the potential harm is to third parties);

4) the probability the disease will be transmitted and will cause varying degrees of harm.

5) whether reasonable modifications of policies, practices, or procedures will mitigate the risk.

All of this leads to the next question which is how do you go about figuring out the nature of the risk, the duration of the risk, the severity of the risk, the probability the disease will be transmitted and will cause varying degrees of harm? The Department of Health and Human Services, the Department of Justice, and the Department of Education in their joint letter say that one place you can look to is the CDC guidelines on a matter. With respect to hepatitis B, the CDC has specific recommendation for managing students who have hepatitis B. Those recommendations include: 1) chronic hepatitis B virus infection in and of itself should not preclude the study or practice of medicine, surgery, dentistry, or allied health professions; 2) any practices, policies, or procedures restricting students from the study of medicine, dentistry, or surgery (such as the notification to patients of the hepatitis B status of the health care provider) should be discouraged; 3) medical and dental students with chronic hepatitis B virus infection who do not perform exposure prone invasive procedures but who practiced non-invasive or minimally invasive procedures should not be subject to any restrictions of their activities and studies. (CDC classifies exposure-prone invasive procedures as those limited to major abominable, cardiothoracic, and orthopedic surgery, repair of major traumatic injury, abdominal and vaginal hysterectomy, cesarean section, vaginal delivery, and major oral or maxillofacial surgery); 4) while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education); and 5) standard precaution should be rigorously adhered to in all health-care settings.

The phrase “while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education,” bears particular discussion for a couple of different reasons. First, this phrase is obviously a statement saying that these three agencies are going to be very skeptical of any essential eligibility requirement that says a student must perform exposure-prone invasive procedures. Not only that, a direct threat defense for a student that is not performing exposure-prone invasive procedures is likely to get short shrift from these agencies because the CDC notes that since 1991 there have been no reports of hepatitis B transmission in the United States or other developed countries for medical or dental students or any others who would not normally perform exposure-prone invasive procedures. Second, the use of the term essential functions is curious because essential functions is an employment term under title I of the ADA and students are not employees with respect to the education they are getting. Rather, it would have been more appropriate to use the term “essential eligibility requirements,” instead. While title III of the ADA, does not have essential eligibility requirements language in it, nevertheless, as I have written elsewhere, you get to the same place because you can’t use the fundamental alteration defense unless you know what are the essential elements/requirements of the business.

In summary: if you are going to dismiss a student from your program because they are a direct threat, you want to make sure that you have your essential eligibility requirements of the program in order. Second, you need to make sure that the student is indeed a direct threat as the term is understood by the U.S. Supreme Court. Finally, in assessing direct threat make sure you look for whatever medical resources are out there, such as CDC guidelines, to make sure that the direct threat determination is consistent with an individual determination of the situation and based upon the most current medical knowledge and/or the best available objective evidence.