Resolution of the Complaint

The complaint alleged that the student agreement used by National University discriminated against students with disabilities. It also alleged that the University discriminated against a student with a psychiatric disability by dismissing her from the MAC program without providing adequate due process and by applying inappropriate standards.

OCR closed the case based on the University’s written commitment to implement a Voluntary Resolution Plan (VRP).

National University agreed to modify its policies, procedures, and student agreements to ensure that students with disabilities are not subjected to discriminatory standards or practices.

Section 504 and Disability Rights

OCR enforces Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination based on disability in programs and activities operated by recipients of federal financial assistance.

National University receives federal financial assistance and is therefore subject to Section 504 and its implementing regulations.

OCR also enforces Title II of the Americans with Disabilities Act (ADA). However, Title II was not applied in this matter because National University is a private entity under the ADA. Private educational institutions are generally subject to Title III of the ADA, which is enforced by the U.S. Department of Justice.

OCR Resolution Process

OCR began its review by interviewing the complainant and examining documentary evidence and statements submitted by both the complainant and National University.

Under OCR procedures, a case may be resolved without completing a full investigation when an institution agrees in writing to take actions that OCR determines will adequately address the allegations under applicable legal standards.

On February 2, 2000, National University submitted a signed Voluntary Resolution Plan. The University did not admit that it had violated any law enforced by OCR, but agreed to actions designed to resolve the complaint.

Under the VRP, National University agreed to:

• Readmit the complainant if she wished to re-enroll and provided the required assurances from her doctor.

• Review and modify its policies and procedures.

• Revise student agreements governing continued participation in academic programs.

• Ensure that these policies and agreements do not discriminate against students with disabilities.

• Work with OCR to implement the required changes.

Because the complaint was resolved through the VRP, OCR did not make final findings regarding the legality of the University’s student agreement or the University’s dismissal of the complainant.

Background

The complainant reported that she had been diagnosed with depression. In 1996, she was accepted into National University’s Master of Arts in Counseling Psychology program.

The program required students to:

• Complete 80 quarter units of academic coursework.

• Complete 20 hours of psychotherapy.

• Complete 250 hours of counseling experience at an approved practicum site.

• Successfully complete the associated practicum course.

The complainant completed her academic coursework in December 1997, receiving an A or A- in each of ten classes.

She began her practicum at an approved site in January 1998.

Practicum Experience

The complainant experienced difficulties at her first practicum site, and the supervisor ended his supervision of her.

However, she received a positive written evaluation of her performance and was permitted to continue her practicum at another designated site.

She remained at the second site until June 1998.

Dispute Regarding the University’s Actions

According to National University, the complainant arrived at the University’s administrative offices on June 3, 1998, and requested to speak with certain individuals regarding an issue involving a graduation tassel.

The University characterized her behavior as inappropriate and stated that she was rude, abusive, threatening, and unprofessional. The University also reported concerns regarding unusual physical movements and speech.

The University stated that these events raised concerns about the complainant’s conduct and the safety of its employees.

The University subsequently contacted her practicum supervisors and obtained additional information concerning her participation in the program.

Based on this information, the University ultimately dismissed her from the MAC program.

The complainant disputed the University’s characterization of her behavior and argued that her actions had been misunderstood.

June 19, 1998 — Dismissal Letter

On June 19, 1998, the complainant’s faculty advisor informed her that she could no longer continue in the practicum.

The letter cited alleged threatening behavior involving:

• University advising staff.

• A previous agency supervisor.

• The faculty advisor.

• Other students.

• The current practicum supervisor.

The letter also stated that her current practicum site had ended her participation and that her practicum course would receive an unsatisfactory grade.

The University stated that the reasons for termination were related to psychological problems that it believed made the complainant unsuitable for continued participation in the MAC program.

The University relied upon paragraph 7 of its student agreement.

Student Agreement

The agreement stated that National University could suspend or terminate a student’s participation in the MAC program, after providing due process, if the University determined that the student:

1. Had emotional, psychological, or personal problems that posed an appreciable risk of harm to the student or others.

2. Had previously experienced such problems and faced a substantial likelihood of recurrence.

3. Had emotional, psychological, or personal problems that otherwise rendered the student unsuitable for further training or participation in the program, even when academic performance was adequate.

OCR later identified concerns about the use of such disability-specific standards.

The Complainant’s Response

The complainant denied the University’s allegations.

She argued that:

• Her first practicum supervisor retaliated against her after she complained about inappropriate conduct.

• Her second practicum supervisor misunderstood certain actions.

• She had not engaged in inappropriate conduct at the University’s administrative offices.

• She should have been given an opportunity to explain and respond to the allegations.

• The University’s student agreement discriminated against students with disabilities.

On July 6, 1998, her attorney requested that the University provide her with an opportunity to clarify the situation and requested the due process protections described in the University’s catalog.

Due Process Requirements

National University’s catalog stated that inappropriate conduct could result in disciplinary action ranging from a warning to dismissal.

The catalog also stated that disciplinary action would follow due process, including:

• Written notice of the charges.

• A fair opportunity to respond to the allegations.

• Procedures for appealing a decision.

The catalog provided additional grievance procedures concerning notice, hearings, and appeals.

Complaint to OCR

The complainant initially filed a complaint with OCR on October 27, 1998, alleging that the University’s student agreement discriminated against students with disabilities.

The complaint was later amended to allege that the University:

• Discriminated against her because of disability.

• Failed to provide adequate due process.

• Dismissed her without adequate notice.

• Failed to provide a meaningful hearing.

• Failed to provide an appropriate opportunity to appeal.

• Applied an unlawful standard during the dismissal process.

National University maintained that it had not denied the complainant due process and stated that it was prepared to provide her with a hearing.

Voluntary Resolution Plan

On February 2, 2000, National University signed a Voluntary Resolution Plan resolving the allegations.

The VRP required the University to modify its policies, procedures, and student agreements to ensure compliance with Section 504.

Because the matter was resolved through the VRP, OCR did not need to:

• Complete its full investigation.

• Determine whether the student agreement violated Section 504.

• Resolve disputed facts regarding the complainant’s conduct.

• Determine whether the University’s actions violated applicable legal standards.

OCR nevertheless provided legal analysis as technical assistance to the University.

Legal Analysis

OCR emphasized that colleges may establish and enforce high academic, technical, conduct, and safety standards for all students, including students with disabilities.

Students with disabilities generally must be treated in a manner comparable to similarly situated students without disabilities.

However, additional protections apply when a college takes action based on assumptions about what a student with a disability might do in the future or whether the student may pose a health or safety risk.

OCR identified four principal legal issues.

Four Key Section 504 Questions

1. Special Requirements for Students With Disabilities

Can colleges impose special requirements upon students with disabilities?

2. Academic or Technical Standards

What due process must be provided before a college suspends or dismisses a student with a disability for failing to meet academic or technical standards?

3. Health and Safety

What procedures are required when a college believes that, because of a disability, a student’s participation poses a health or safety risk?

4. Future Ability to Meet Standards

What procedures are required when a college believes that, because of a disability, a student will not be able to meet academic or technical standards in the future?

Section 504 Standards

Under 34 C.F.R. Part 104, qualified individuals with disabilities may not be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under federally funded programs.

A qualified student in post-secondary education is a student with a disability who meets the academic and technical standards required for participation in the educational program.

Colleges receiving federal financial assistance must provide reasonable academic adjustments or modifications when necessary to ensure that academic requirements do not discriminate against qualified students with disabilities.

However, accommodations are not required when they would fundamentally alter the nature of the educational program or reduce essential academic standards.

Special Requirements for Students With Disabilities

Disability-Specific Standards Are Presumptively Discriminatory

OCR expressed concern about policies that single out students with disabilities for different treatment.

Policies that establish separate standards based solely on disability are subject to careful scrutiny because they can rely on stereotypes rather than individualized assessments.

Colleges may establish high standards relating to:

• Academic performance.

• Professional competence.

• Conduct.

• Safety.

• Licensing requirements.

However, those standards should apply fairly and be based on individual circumstances rather than generalized assumptions about disability.

Due Process for Academic or Technical Standards

A student with a disability remains qualified to participate in a college program as long as the student meets the program’s academic and technical requirements.

These requirements may include:

• Academic standards.

• Professional standards.

• Licensing requirements.

• Codes of conduct.

• Safety requirements.

A college may suspend or dismiss a student who fails to meet these requirements after reasonable accommodations have been considered, provided that the student is treated comparably to similarly situated students without disabilities.

Comparable procedures may include:

• Written notice.

• An opportunity to respond.

• A hearing.

• An appeal.

• Appropriate grievance procedures.

If a college considers mitigating circumstances when disciplining students without disabilities, it should consider comparable circumstances for students with disabilities.

Health and Safety — The Direct Threat Standard

When a college believes that a student may pose a health or safety risk because of a disability, a higher standard applies.

OCR referenced the U.S. Supreme Court decision:

School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

A student may be excluded when participation presents a direct threat to health or safety.

A direct threat requires a significant risk of substantial harm that cannot be eliminated or sufficiently reduced through reasonable accommodations.

An individualized assessment should consider:

• The student’s current ability to participate safely.

• The specific behavior creating the concern.

• The nature and duration of the potential risk.

• The severity of potential harm.

• The probability that harm will occur.

• Whether reasonable modifications could reduce the risk.

• Current medical knowledge and objective evidence.

A speculative, remote, or unsupported concern is not sufficient to establish a direct threat.

Future Ability to Meet Academic or Technical Standards

A college may sometimes obtain information suggesting that a student may not be able to meet academic or technical standards in the future.

However, decisions cannot be based simply on assumptions, stereotypes, or vague concepts such as “suitability.”

Academic and technical standards must be:

• Clearly defined.

• Applied consistently.

• Essential to the educational program or related professional requirements.

• Supported by objective evidence.

• Based on reliable information.

• Evaluated through an individualized assessment.

Before taking action, the college should identify:

1. The specific standard the student is believed to be unable to meet.

2. Why that standard is essential to the program.

3. Why the student’s disability may prevent the student from meeting it.

4. Whether reasonable accommodations could enable the student to meet the standard.

5. What objective evidence supports the conclusion.

The decision should be based on reliable evidence and current medical knowledge rather than speculation.

Summary

National University committed to implementing the Voluntary Resolution Plan and modifying its policies, procedures, and student agreements to ensure that they do not discriminate against students with disabilities.

Based on that commitment, OCR concluded that the issues raised under Section 504 had been or would be resolved.

The resolution concluded OCR’s investigation of the matter.

OCR also offered to provide additional technical assistance to National University regarding implementation of the VRP.

This resolution was not a determination of the University’s compliance status regarding issues outside those specifically addressed in the matter.

Key Takeaways

The OCR analysis emphasizes several important principles:

• Colleges may maintain high academic and professional standards.

• Students with disabilities must be treated comparably to similarly situated students without disabilities.

• Disability-specific requirements can be presumptively discriminatory.

• Students facing disciplinary action are entitled to appropriate due process.

• Health and safety decisions must be based on an individualized assessment.

• A “direct threat” requires a significant risk of substantial harm.

• Speculation, stereotypes, and generalized assumptions about disability are insufficient.

• Reasonable accommodations must be considered where applicable.

• Academic and technical standards should be clearly defined and consistently applied.

• Decisions concerning disability must rely on objective evidence and current medical knowledge.

OCR Closing Statement

OCR thanked National University for its cooperation in reaching a voluntary resolution of the matter.

Further communication concerning implementation of the Voluntary Resolution Plan was directed to:

David Giles
San Francisco Enforcement Office
(415) 556-4143

Stefan M. Rosenzweig
Director
San Francisco Enforcement Office
Western Division

Enclosure

Footnotes

1. The complainant’s faculty advisor held a doctoral degree in psychology and served as Chair of the University’s School of Education and Human Services Department of Psychology.

2. The proposed remedial plan called for participation in psychotherapy and monitoring by the University for one year, followed by reconsideration of whether the complainant could be reinstated in the MAC program.

3. Because the case was resolved without a final determination, OCR did not determine how the University defined the term “personal problems” or whether it differed from “emotional” or “psychological” problems. OCR’s analysis focused on terminology associated with mental health, psychological, or psychiatric disabilities.

Contact Information

Email: attorneywoodiethomas@gmail.com
Cell Phone: 561-339-2900