- As soon as the student thinks he or she may need an accommodation in the form of an alteration in the course attendance or class participation requirements, the student must submit medical documentation to Disability Resources explaining the need for the requested accommodation.
- The Assistant Director will confirm that the student has provided sufficient documentation of disability and requested accommodation from an appropriate professional, and that the disability directly affects or is likely to affect the student’s ability to attend or participate in class on a regular basis.
- The student will provide a list of professors to contact. The Assistant Director will email the listed professors, identifying the student and the requested accommodation(s). The letter will inform the professors of the obligation to keep the student’s information confidential. Professors shall participate in a deliberative process with Disability Services about the request and how best to address it, considering appropriate factors, including factors identified by the US Office of Civil Rights.
- From the date of the letter to the professors, professors have ten days to inform the Assistant Director of their decisions regarding accommodations. However, professors are encouraged to communicate a decision as soon as possible to minimize limitation of students’ enrollment options. These decisions should be in writing and shall specify the maximum number of absences that will be allowed as accommodation and/or what modification of class participation requirements will be provided. The decision shall clearly describe any supplemental work that will be required in response to alterations in attendance or class participation requirements. If the accommodation is denied, the reasons for denial of the accommodation request shall be explained.
- The Assistant Director will inform the student of the professors’ decisions within two working days of receipt of the response.
- If the student has any questions about or disagreements with the decision, the student can request a meeting with the Associate Dean for Student Affairs, Law School and the professor(s). This meeting will take place within two weeks of the request for meeting.
- If an agreement cannot be reached, the student may file a grievance pursuant to the Grievance Policy in the Disability Policies section of the Student Handbook.
Factors That Professors Should Consider In Evaluating Requests for Accommodation once the Assistant Director informs the professor(s) that a student has a documented disability that directly affects or is likely to affect the student’s ability to attend or participate in class as required, the professor(s) should consider the factors below in determining whether the attendance and course requirements can be modified to accommodate the student. The professor(s) should engage in a deliberative process and consider whether the requested accommodation would result in a fundamental alteration of the educational program.
Each professor should consider the following factors, identified by the U.S. Office of Civil Rights (OCR), to help determine whether attendance or class participation is fundamental to the course in question:
- Is there classroom interaction between the instructor and students, and among students?
- Do student contributions constitute a significant component of the learning process?
- Does the fundamental nature of the course rely upon student participation as an essential method for learning?
- To what degree does a student’s failure to attend constitute a significant loss to the educational experience of other students in the class?
- What does the course description and syllabus say?
- What is the method by which the final course grade is calculated?
- What are classroom practices and policies regarding attendance?
In some cases, attendance is fundamental to course objectives. For example, students may be required to interact with others in the class, to demonstrate the ability to argue critically, or to participate in group projects. In other instances, faculty may determine that students can master course content despite some or many absences, and that alternatives are available to students needing accommodation. Alternatives might include individual meetings with the professor or teaching assistants, taping of classes, time controlled email procedures in lieu of class participation, or use of other remote learning tools available to the disabled student. Rarely, faculty may decide that students do not need to attend classes at all.
Cases which have reached the OCR or the courts have generally upheld a university’s determination that, in certain professional programs, class attendance and interaction were essential to the teaching program and the university was not required to lower or effect substantial modifications of academic standards by automatically excusing disability related absences as an accommodation. (See, e.g., Maczaczyj v. New York, 956 F.Supp. 403, 11 NDLR ¶ 59 (W.D.N.Y. 1997) (upholding the requirement of in-person residency and finding that participation by phone constituted fundamental alteration of program.); Metropolitan State College (CO), Case No. 08-98-2013, 15 NDLR ¶ 92 (OCR Region VIII 1998) (upholding the accounting department’s refusal to relax attendance policy after engaging in deliberative process and concluding such would result in fundamental alteration based on program); Cabrillo Community College (CA), Case No. 09-96-2150 (OCR Region IX 1996) (essentiality of attendance decided on case-by-case basis in light of class requirements and methodology; when attendance is not essential, college should consider taping classes).
There are, however, situations in which it may be appropriate to alter attendance or class participation policies.
Example 1: A first year student in a large lecture-based class has a speech impairment which is intensified when speaking in front of large groups. His disability makes it difficult to successfully participate in class discussions and to be assessed in a similar way to other students. Because this class is a large lecture, his participation will not largely impact his classmates’ learning. In this situation, it is important that the instructor consider the purpose of classroom participation and how frequently and for how long the average student participates. Based on the function and frequency of participation, the instructor may decide that the student should visit the instructor several times during the term to discuss course content for a specified amount of time, or that the student write half page summaries of one aspect of the reading several times during the term. In contrast, if this student were enrolled in Trial Advocacy, the accommodation of one-on-one discussions or written responses might fundamentally alter the nature of the course. It might be possible to accommodate the student’s disability creatively in this class with other assignments such as drafting written witness preparation questions and written direct and cross examination questions, but most likely, Trial Advocacy is a class for which the requested accommodation-waiving the public speaking requirement-could not be granted because of the content of the course and the necessity for students’ participation to educate one another.
Example 2: A student has a seizure disorder which flares up infrequently. Although the student does not expect to be absent from class more than the standard number of allowable absences, it is important the instructor decide how she will to address this situation if it should arise. The student can sense the seizure before it comes on and will stay home in a safe environment if she is aware of a seizure coming on. This student is taking a class that involves both lecture and discussion but the class has more than 30 students enrolled. It will not negatively impact the other students’ education for this student to be absent. The professor feels that, if the student maintains the reading and receives a copy of course notes from the classes missed, the student will be able to stay on top of the work. For all classes missed, the student must write a short response to a discussion question provided by the instructor or tape record a discussion response.
Accommodation requests must be evaluated on a case by case basis. While there need not be a uniform policy of excusing attendance and/or participation, genuine efforts should be made to find alternatives that ameliorate attendance and participation issues for students with demonstrated need for accommodation. The OCR’s approach implicitly recognizes that disability related absences do not necessarily need to be excused, but it also indicates that faculty must be prepared to justify why class attendance or participation are integral to the pedagogic process. In considering requests for changes in attendance requirements, faculty should also review ABA Standard 311 (see Attachment).
Faculty should pay careful attention to possible claims of differential treatment. Occasionally, a professor has a strict attendance policy on paper but has modified it for others. It is important that professors look beyond the course syllabus and consider actual practice and any exceptions the professor may have made, either to his or her own policy or that of the law school, especially for non-disabled students.
Regardless of the outcome, the deliberative process should be well-documented, so that others who were not involved in the process can understand the alternatives considered and the reasons for the final decision.
Attachment to Appendix A
ABA Standard 206. Diversity And Inclusion
- Consistent with sound legal education policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by providing full opportunities for the study of law and entry into the profession by members of underrepresented groups, particularly racial and ethnic minorities, and a commitment to having a student body that is diverse with respect to gender, race, and ethnicity.
- Consistent with sound educational policy and the Standards, a law school shall demonstrate by concrete action a commitment to diversity and inclusion by having a faculty and staff that are diverse with respect to gender, race and ethnicity.
The requirement of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school’s non-compliance with Standard 206. A law school that is subject to such constitutional or statutory provisions would have to demonstrate the commitment required by Standard 206 by means other than those prohibited by the applicable constitutional or statutory provisions.
In addition to providing full opportunities for the study of law and the entry into the legal profession by members of underrepresented groups, the enrollment of a diverse student body promotes cross-cultural understanding, helps break down racial, ethnic, and gender stereotypes, and enables students to better understand persons of different backgrounds. The forms of concrete action required by a law school to satisfy the obligations of this Standard are not specified. If consistent with applicable law, a law school may use race and ethnicity in its admissions process to promote diversity and inclusion. The determination of a law school’s satisfaction of such obligations is based on the totality of the law school’s actions and the results achieved. The commitment to providing full educational opportunities for members of underrepresented groups typically includes a special concern for determining the potential of these applicants through the admission process, special recruitment efforts, and programs that assist in meeting the academic and financial needs of many of these students and that create a favorable environment for students from underrepresented groups.
ABA Standard 207. Reasonable Accommodation for Qualified Individuals with Disabilities
- Assuring equality of opportunity for qualified individuals with disabilities, as required by Standard 205, requires a law school to provide such students, faculty and staff with reasonable accommodations consistent with applicable law.
- A law school shall adopt, publish, and adhere to written policies and procedures for assessing and handling requests for reasonable accommodations made by qualified individuals with disabilities.
Applicants and students shall be individually evaluated to determine whether they meet the academic standards requisite to admission and participation in the law school program. The use of the term “qualified” in the Standard requires a careful and thorough consideration of each applicant and each student’s qualifications in light of reasonable accommodations. Reasonable accommodations are those that are consistent with the fundamental nature of the school’s program of legal education, that can be provided without undue financial or administrative burden, and that can be provided while maintaining academic and other essential performance standards.
ABA Standard 311. Academic Program and Academic Calendar
- A law school shall require, as a condition for graduation, successful completion of a course of study of not fewer than 83 credit hours. At least 64 of these credit hours shall be in courses that require attendance in regularly scheduled classroom sessions or direct faculty instruction.
- A law school shall require that the course of study for the J.D. degree be completed no earlier than 24 months and, except in extraordinary circumstances, no later than 84 months after a student has commenced law study at the law school or a law school from which the school has accepted transfer credit.
- A law school shall not permit a student to be enrolled at any time in coursework that exceeds20 percent of the total credit hours required by that school for graduation
- Credit for a J.D. degree shall only be given for course work taken after the student has matriculated in a law school. A law school may not grant credit toward the J.D. degree for work taken in a pre-admission program.
- In calculating the 64 credit hours of regularly scheduled classroom sessions or direct faculty instruction for the purpose of Standard 311(b), the credit hours may include:
- Credit hours earned by attendance in regularly scheduled classroom sessions or direct faculty instruction;
- Credit hours earned by participation in a simulation course or law clinic in compliance with Standard 304;
- Credit hours earned through distance education in compliance with Standard 306; and
- Credit hours earned by participation in law-related studies or activities in a country outside the United States in compliance with Standard 307
- In calculating the 64 credit hours of regularly scheduled classroom sessions or direct faculty instruction for the purpose of Standard 311(b), the credit hours shall not include any other coursework, including, but not limited to:
- Credit hours earned through field placements and other study outside of the classroom in compliance with Standard 305;
- Credit hours earned in another department, school, or college of the university with which the law school is affiliated, or at another institution of higher learning;
- Credit hours earned for participation in co-curricular activities such as law review, moot court, and trial competition; and
- Credit hours earned by participation in studies or activities in a country outside the United States in compliance with Standard 307 for studies or activities that are not law-related.
Whenever a student is permitted on the basis of extraordinary circumstances to exceed the 84-month program limitation in Standard 311(c), the law school shall place in the student’s file a statement signed by an appropriate law school official explaining the extraordinary circumstances leading the law school to permit an exception to this limitation. Such extraordinary circumstances, for example, might include an interruption of a student’s legal education because of an illness, family exigency, or military service.
If a law school grants credit for prior law study at a law school outside the United States as permitted under Standard 505(c), only the time commensurate with the amount of credit given counts toward the length of study requirements of Standard 311(b). For example, if a student has studied for three years at a law school outside the United States and is granted one year of credit toward the J.D. degree, the amount of time that counts toward the 84 month requirement is one year. The student has 72 months in which to complete law school in the United States