Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

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Leasor Beware: distinctions between design and lease under the Fair Housing Act's statute of limitations

A university student, who used a wheelchair because of a neuromuscular condition, filed suit against a university and others asserting that the apartment he leased was not properly accessible. The design for the building at issue was completed in 2000. Student signed a lease in December, 2005 and filed suit a year later asserting claims under the Fair Housing Act, the Americans With Disabilities Act (“ADA”), and the Rehabilitation Act of 1973 (“§ 504”). The university and others moved to dismiss the complaint as untimely. The court’s decision found the complaint was timely because the lease was a new occurrence.

The Fair Housing Act provides that a person has two years to file suit “after the occurrence or the termination of an alleged discriminatory housing practice. . . .” 42 U.S.C. § 3613(a)(1)(A). The question for the court was the meaning of “occurrence or the termination.” After addressing a few other court decisions, including the only two apparent federal appeals court decisions approaching the issue, the court concluded that two important distinctions lie in the Fair Housing Act. First, there is the “occurrence” of designing and completing the building itself, and second, there is the continuing operation and management of the building. 

As to the design portion of potential liability, the statute of limitations begins to run once the building is completed. Accordingly, the court found, the architects were previously properly dismissed from the case. As to the continuing operation and management of the building, the court concluded that each new lease of an apartment is a new “occurrence.” Unlike the architects and builders, the owners and managers continue to remain in control of the building and are in a position to correct design defects.  

The court also applied the same reasoning to, and reached the same conclusions under, the ADA and 504 claims. The court further expressly pointed out the a public university has a continuing obligation to assure that its buildings are accessible. 

The decision’s logic appears solid. Accordingly, leasor’s beware – and be sure your buildings are up to code.

Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.   Continue Reading...

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

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The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

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A paradigm shift for identifying learning disabled students in higher education, independent schools, and admissions testing

Is a person whose academic achievement exceeds national average justly entitled to accommodations as “learning disabled?”   What if the person not only exceeds average on performance measures, but also exceeds average through actual attainment, such as a Bachelor’s Degree, perhaps a graduate degree, or even entrance into medical school? Does such a top-flier really need accommodations? Or is it really a matter of taking advantage of benefits entitled for the genuinely disabled? 

“The law compels accommodations for someone who is ‘disabled’ as that term is used in the Acts, but not for everyone who may have a condition described as a ‘learning disability.’” Wong v. Regents of the University of California, C.A. No. 01-17432, 6452, n.6, 379 F.3d 1097, 1109 n.6 (9th Cir. 2004).  The question of entitlement to accommodations first asks if the person is impaired and asks second if the impairment substantially limits the person. The Wong decision and other cases looked at the second question. Changes in the law on how public schools identify learning disabilities, may require colleges and testing organizations to look more closely at the first question, too.

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