Title II of the Americans with Disabilities Act (“Title II”) and Section 504 of the Rehabilitation Act (“Section 504”) are federal civil rights laws that provide protections for students with disabilities. The University of California is committed to ensuring that students with disabilities are provided with full and equal access to its programs, services, and activities.1
Academic Accommodations
Federal law states that “modifications or adjustments to academic requirements must be made as necessary to ensure that such requirements do not discriminate, or have the effect of discriminating, on the basis of handicap, against an otherwise qualified student.”2 While universities are not required to modify academic requirements that are essential to the instruction being pursued or directly related to a licensing requirement, flexibility by the University and faculty is necessary where requirements would neither lower academic standards nor substantially alter the program.3
Academic modifications are not required to produce the identical result or level of achievement for persons with and without disabilities. Instead, modifications must afford persons with disabilities an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement that is provided to others.
Academic Accommodation Approvals
Title II requires that all universities appoint an ADA Coordinator. The ADA Compliance Office works with the Disabled Students Program (“DSP”) to ensure compliance with federal law. DSP verifies a prospective student’s disability with information provided by the student’s health care provider and engages with the prospective student to determine if accommodations are necessary. “It is DSP’s function to approve accommodations with certainty, based on documentation submitted by the student.4
The Interactive Process
The “interactive process” is required under the law to ensure that students, DSP, and faculty work together to implement an approved accommodation. The interactive process is activated at different junctures to determine: (1) whether a student is a qualified individual with a disability, (b) whether the qualified disabled student requires accommodations, (3) what the necessary accommodations may be, (4) if necessary, arranging for implementation of an accommodation, and (5) in rare circumstances, determining whether an accommodation meets the legal criteria of creating a fundamental alteration to a course nullifying implementation.
The interactive process requires more than “simple conclusionary averment” and must establish that the university made a professional effort to evaluate possible ways of accommodating and did not simply embrace what was most convenient for faculty and administration.5 To deny an approved accommodation, it must be documented and demonstrated that no reasonable way exists to provide it.6
If DSP has approved an accommodation, and you have concerns about how the accommodation will be implemented or if the accommodation necessitates some flexibility by faculty, you should consult with DSP to review the perceived impacts and work together to implement the accommodation or identify alternatives that would still provide access. You should not deny an accommodation before consulting with DSP. (See “Consequences of Failing to Implement an Approved Accommodation” below).
Undue Burden
Undue burden refers to an unreasonable financial or administrative burden. In considering whether an accommodation is an undue financial burden, the University of California must consider “all resources available for use in the funding and operation of the service, program, or activity.” An unreasonable administrative burden is not one that is merely inconvenient, rather it denotes something that presents “significant difficulties or expense when considered in light of a number of factors, including the type of service or product being offered” (e.g., the creation of an alternate exam format that would require two years to construct. Faculty may not unilaterally deny a request for an accommodation based on undue burden, rather must consult with DSP to discuss the proposed accommodation and consider alternative accommodations in the event an accommodation is determined to constitute an undue burden.
Fundamental Alteration – You Must Show Your Work
A fundamental alteration to an educational program is a change that is so significant that it alters the essential nature of the course. Reasonable accommodations may require an instructor to make adjustments or adaptations to the traditional manner in which they conduct the class. While reasonable accommodations may impact instruction, under most circumstances, this will not constitute a fundamental alteration of the curriculum.
There is no bright-line rule to determine whether an accommodation creates a fundamental alteration. Instead, determining whether an accommodation would constitute a fundamental alteration is decided on a case-by-case basis and requires careful and reasoned deliberation through an interactive process. Denying an accommodation requires more than reliance on traditionally accepted academic norms and must include alternatives that may involve new approaches or devices and consider technological advances.7 A fundamental alteration requires more than having an impact on rules, policies, or the manner in which the course is conducted. Additionally, decisions must not be based on stereotypes, generalizations, pretexts, or bias.
Establishing that an approved accommodation would create a fundamental alteration to your course requires, in essence, that you show your work. U.S. courts have declared that “Universities have “a real obligation … to seek suitable means of reasonably accommodating a handicapped person and to submit a factual record indicating that it conscientiously carried out this statutory obligation…not mere ipse dixit”(Emphasis added).8 (Ipse dixit is defined as something asserted but not proved). The Office for Civil Rights has also clarified that faculty members cannot take it upon themselves to deny reasonable accommodations that the DSP office has approved.9
Consequences of Failing to Implement an Approved Accommodation
Failure or delay in implementing an approved accommodation that has not been determined a fundamental alteration to a course is discriminatory conduct under UC Policy and federal law.10 The consequences for failing to comply with federal law may include Office for Civil Rights Investigations and/or civil lawsuits against the University. Additionally, it could jeopardize federal funding for the entire University.
Undue burden refers to an unreasonable financial or administrative burden. In considering whether an accommodation is an undue financial burden, the University of California must consider “all resources available for use in the funding and operation of the service, program, or activity.” An unreasonable administrative burden is not one that is merely inconvenient, rather it denotes something that presents “significant difficulties or expense when considered in light of a number of factors, including the type of service or product being offered” (e.g., the creation of an alternate exam format that would require two years to construct). Faculty may not unilaterally deny a request for an accommodation based on undue burden; rather, they must consult with DSP to discuss the proposed accommodation and consider alternative accommodations in the event an accommodation is determined to constitute an undue burden.
Approved accommodations must be implemented and remain active unless all of the following criteria have been met: the accommodation has been formally challenged, the interactive process has concluded, and a decision by the appropriate campus designee has been made to deny the accommodation based on a fundamental alteration (See Fundamental Alteration below).
The Fundamental Alteration Review and Determination Process
The fundamental alteration process evaluates whether an academic standard or rule is “essential” and whether a proposed accommodation would represent a fundamental alteration to that rule or standard. If, after you and DSP have engaged in a good faith interactive process to implement an approved accommodation, you believe that the accommodations cannot be implemented because it would fundamentally alter your course, you have the right to challenge the accommodation through the Fundamental Alteration Review and Determination Process.
If you wish to challenge the accommodation, the law requires the University to document why and how the proposed adjustments would require a substantial program alteration.
Initiating the Process
1. Contact the DSP Office within 72 hours after receipt of the student’s letter of accommodation to discuss concerns related to implementation or impact on the essential requirements of your course.
2. If, after discussing your concerns with DSP, you remain concerned that the accommodation will create change so significant it alters the essential nature of your course (fundamental alteration), you may challenge the accommodation through the Accommodation Concerns Form.
Citations:
[1] PACAOS 140: Guidelines Applying to Nondiscrimination on the Basis of Disability.
[2] 34 C.F.R. § 104.44(a).
[3] Ibid.
[4] Letter to Laney College, No. 09-02-2019 (102 LRP 38477) (OCR IX, San Francisco (CA) 2002)
[5] Wynne v. Tufts University School of Medicine, 932 F.2d 19, 28 (1st Cir. 1991)
[6] Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1st Cir. 1991)
[7] Wynne v. Tufts University School of Medicine, 932 F.2d 19, 23 (1st Cir. 1991 (Citing Southeastern Community College v. Davis, 442 U.S. 397, 412413)); Southeastern Commun. Coll. v. Davis, 442 U.S. 397 (1979); PGA Tour, Inc. v. Martin - 532 U.S. 661, 121 S. Ct. 1879 (2001)
[8] Wynne v. Tufts Univ. Sch. of Med. (1991) 932 F.2d 19, 27
[9] Letter to Laney College, No. 09-02-2019 (102 LRP 38477) (OCR IX, San Francisco (CA) 2002)
[10] Americans with Disabilities Act of 1990; Section 504 of the Rehabilitation Act of 1973