Norma M. Lemley, Counsel

The University of Alabama

Three Important University Policies to Know

2. Office of Disability ServicesProcedures for Students withDisabilities

3. Confidentiality of Student Records

1. Sexual and Other Forms of Illegal Harassment

Legal Basis for Policies• Title VII (workplace harassment/

discrimination)

• Title IX (gender discrim. in education)

• Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (disabilities discrimination)

• Family Educational Rights and Privacy Act (FERPA) (privacy of student records)

UA Sexual Harassment Policy• http://www.ua.edu/academic/eop/sex.html

• No Tolerance Statement

• Defines Inappropriate Sexual Harassment

• Requires Prompt Reporting of Inappropriate Incidents

• Requires Supervisory Personnel To Educate, Sensitize, Prevent And Stop Sexual Harassment

• Identifies Complaint Channels (Use Designated Sexual Harassment Resource Persons)

• Assures Confidentiality & No Retaliation

Harassment Because of Any Protected Status is Illegal

Harassment is unwelcome conduct, whether verbal, physical, or visual, that is directed toward or inflicted upon another person because of his or her protected status, such as sex, color, race, ancestry, religion, national origin, age, physical or mental disability, or citizenship. The University will not tolerate harassing conduct that

(2) affects tangible job or education benefits, or(3) interferes unreasonably with an individual’s

work or academic performance, or (3) creates an intimidating, hostile, demeaning, or offensive working/learning environment.

Examples of Conduct Creating Hostile Environment

Excerpts from Videotape:

Sexual Harassment Orientation for College and University Faculty and Administrators: The Classroom and Beyond: Faculty Conduct

Published by CUPA and Schmeltzer, Aptaker & Shepard, P.C.

UA’s Policy On Consensual- Sexual Relationships

PROHIBITS faculty members from teaching or supervising members of family or anyone with

whom they have relationship

UNLESS department chairperson or dean approves AND

alternative arrangements are unreasonable

Review policy on-line at:

http://www.ua.edu/academic/facsen/handbook/append-j.html

Hostile Environment or Academic Freedom?

• Balance legal duty to maintain hostile-free learning environment and academic freedom rights

• Bonnell v. Macomb Comm. Col. (6th Cir. 3/1/01; US cert. denied)– Professor suspended from teaching (English Language and

Lit.) after previous warning about vulgar classroom speech– In discussing sexually explicit literature, he expressed

personal sexual escapades; repeatedly ostracized students who expressed offense or disgust; frequently used obscene and vulgar language

– Held: Students are “captive audience” “paid to be taught and not vilified in indecent terms,” particularly when no academic purpose or justification. Academic freedom cannot compromise student’s right to learn in hostile-free environment. Must be germane to course content as measured by professional standards.

UA Policy Statement on Classroom Speech and Academic Freedom

• Speech/conduct of sexual or hostile nature exceeds First Amendment protection if it:

– creates hostile/offensive learning environment or unreasonably interferes with student’s academic performance, and

– is reasonably regarded as non-professorial speech (advances personal interest vs. furthers the learning process or legitimate objectives of course) or

– lacks accepted pedagogical purpose or is not germane to the academic subject matter

Seven Steps To Avoid Legal Liability

1. Read and Study the Sexual Harassment Policy

2. Train Further On What Constitutes Inappropriate Sexual Harassment

complete on-line tutorial at http://www.newmedialearning.com/psh/ua/

3. Avoid Being Accused of Creating an Intimidating, Hostile, or Offensive Educational or Work Environment

4. Avoid Romantic Relationships with Students or Supervisors

5. Prevent and Stop Harassment You Observe Immediately

6. Complain Immediately

7. Do Not Retaliate

Legal Issues

and

Office of Disability Services Procedures

What ADA and § 504 Require

• Students

– with “disabilities”

– who are “otherwise qualified”

• must receive “reasonable accommodations” and

• are protected from discrimination, harassment, and retaliation

Student With Disability

• Law protects those who meet the legal definition of a qualifying disability

• A student is protected if :

• has a physical or mental impairment that

• currently substantially limits

• one or more major life activities

Determining Whether A Covered Disability Exists

• Individualized case-by-case determination

• Need reasonably current and adequate documentation of the specific disability

• Determination must be made by university personnel with expertise and training (Office of Disability Services personnel)

Law Protects Students with Record of Disability or Regarded as Disabled

• Record of Disability:

--had disability in past and recovered

--can’t be discriminated against due to past record

• Regarded as Disabled:

--university officials perceive student as “disabled” even if does not meet legal definition of disability

--can’t be discriminated against is perceived disabled

--BE CAREFUL IN USE OF WORD DISABLED!

Student “Otherwise Qualified”

• Must meet the “essential functions” of being a student, with or without reasonable accommodation

– Comply with academic standards (we don’t have to lower our admissions/performance standards)

– Comply with essential attendance policies

– Comply with honor code

– Not threaten the safety of others or exhibit self-destructive behavior

Reasonable Accommodations• Removal of architectural barriers (ramps, parking)

• Auxiliary aids or services (note-takers, taped lectures, interpreters, etc.--not services or devices of personal nature)

• Modifications to policies and/or procedures (flexibility in deadlines & assignment formats, lecture outlines, etc.)

• Modifications to classroom presentations (outlines, read info on board, preview & summarize)

• Modifications in testing (format, time, distraction-free)

Fairness of Reasonable Accommodations• Not an unfair advantage

• Student with motor impairment of upper extremities who can’t write as fast needs extra time so they are graded on their knowledge base, rather than penalized for slow writing skills

• Student with LD/ADHD cannot process material at same speed, so extra time needed to ensure they too are graded on knowledge base, rather than penalized for slow processing

• Must meet same performance standard as everyone else—may need to go about meeting those in different manner

• Misconception that cognitive disabilities are not real

• Diagnosis of LD/ADHD requires extensive testing, with administration of batteries of psychoeducational tests that have been normed on adults. NO accommodations w/o adequate documentation of substantial limitation of MLA

Very Few Legal Justifications to Deny Accommodation

Fundamental change in the program or modification of essential academic requirements

Unreasonable costs to the Institution—not to the faculty member or department

Unreasonable administrative burden on the Institution—not to the faculty member or department

Frequently Asked Questions About Procedures At UA

1. Who determines if a student has a qualifying disability that requires reasonable accommodation?

The Office of Disability Services--Not the Office of Counsel, Dean, or faculty member

2. Should I discuss reasonableaccommodations in my class session?

•Not regarding a particular student. Do NOT discuss accommodation in front of other students (FERPA problems).

•Briefly mention ODS in your first class and include statement on syllabus. (See handout)

See excerpt from Disability Training Video

3. When am I on notice that I must provide a particular accommodation?

When you receive an accommodation letter from ODS (See your handout for samples).

4. What do I do if the student identifies himself/herself to me as having a disability?

Immediately refer to ODS and wait on ODS accommodation letter.

5. What do I do once I have been presented with an accommodation letter?

Sign and return it to ODS, confirming your intent to provide the recommended accommodations

Contact ODS ASAP if you have questions or concerns

Collaborative process with student

6. Can I see the student’s disability documentation?

No, unless the student consents in writing. It is CONFIDENTIAL.

See excerpt from Disability Training Video

7. Who can help me implement reasonable academic adjustments?

Ms. Judy Thorpe, M.Ed., C.R.C.Director, ODS

Ms. Donna MarloweODS Program Assistant

College ADA/§ 504 Liaisons

Ms. Gwendolyn Hood, University ADA/§ 504 Coordinator

8. What if I disagree with the accommodation the student has requested and ODS has recommended?

Ignoring it can cause legal liability

Must provide it until disagreement resolved

If not resolved with ODS, then meet with College ADA/504 Liaison; faculty

supervisor; Assistant VP for Undergraduate Programs and Services

If not resolved with ODS, then file appeal

Some Words of Wisdom From Experts

• Excerpts from Faculty & Students, University of Washington’s “Do It” Video Series, and University of New Mexico Public Affairs Video on Student Disabilities

• Contact Gwendolyn Hood, ADA/504 Coordinator, for videos

Family Educational Rights and Privacy Act (FERPA)

THREE PRIMARY FERPA RIGHTS FOR STUDENTS

1. REVIEW their own education records

2. SEEK TO AMEND their own education records

3. LIMIT DISCLOSURE of their own education records to third parties

FERPA DEFINITION OF EDUCATION RECORD

Records, files, documents and other materials (including e-mails and other computer files) which

(1) contain information directlyrelated to a student; and

(2) are maintained by aneducational agency orinstitution.

Oral conversations or personal observations about students are not records or protected

POLICY ON CONFIDENTIALITY OF UA

STUDENT RECORDS

• Online: http://www.registrar.ua.edu/policies/ferpa.shtml

• Explains student’s three FERPA rights

• Defines “directory information” that can be disclosed without consent of student

• Provides procedure for blocking disclosure of “directory information”

• Identifies numerous ways in which records can legally be disclosed w/o student’s consent

• GENERAL RULE: GET CONSENTObtain written consent from a student before disclosing any personally identifiable information from education records to a third party, unless it is simply directory information.

• DIRECTORY INFORMATIONGenerally not considered harmful or an invasion of privacy if disclosed. Refer to UA Policy for what information UA designates as “directory info”.

• POSTING GRADESGrades are NOT directory information. Do not post grades by personally identifiable information such as name, Social Security number, or student identification number.

• SCHOOL OFFICIALSCan only access information that is needed for performance of job. Violates policy to transmit, share, or disclose information to a third party, within or outside the University.

• PARENTSConsent is needed to release record info to parents, UNLESS student verifies or parent proves student is claimed as dependent on most recent tax filing.

• HEALTH/SAFETY EMERGENCYCan disclose info if knowledge is necessary to protect health/safety of student or others. Release only to those who need to know or who can deal with emergency.

THANK YOU FOR YOUR ATTENTION TO

THESE IMPORTANT LEGAL ISSUES