Compliance with Guckenberger III - Case Study Example

1. In response to Guckenberger II, Boston appointed a faculty committee to consider whether a foreign language requirement was an appropriate requirement for a student enrolled in the College of Arts and Sciences. Despite the fact that elite universities such as Harvard did not have such a requirement, the faculty committee determined that the foreign language requirement was central to its arts and sciences majors. The court, in Guckenberger III [8 F. Supp. 2d 82 (D. Mass. 1998)] concluded that the university had complied with the law in determining that eliminating the foreign language requirement for students with disabilities would "fundamentally alter the nature of the degree." How does this ruling compare to other court rulings that deal with academic judgments The essential method of compliance with Guckenberger III is to balance the interests of the university with the interests of the handicapped student. Section 504 of the Rehabilitation Act and the Americans with Disabilities Act ("ADA") strictly prohibits universities from discriminating against qualified students with disabilities. In relevant part for this analysis, Section 504 mandates that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. 794(a). Titles II and III of the ADA make similar provisions for public services and public accommodations which public universities are required to follow. 42 U.S.C. 12132 and 12182(a). The ADA defines discrimination to include "a failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford . . . services . . . to individuals with disabilities unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the . . . services." 42 U.S.C. 12182(b)(2)(A)(ii). Universities are obligated to provide reasonable accommodations. In deciding to maintain the integrity of university curriculum and apply it evenly throughout, a balancing test is required. Clearly starting point for examining whether a course substitution or alteration is a reasonable academic adjustment starts with the Supreme Court's pronounced interpretation that "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). The Southeastern court found that there is a line between alteration and accommodation. It found that being excused from taking the clinical part of the nursing program was an unacceptable accommodation and that Southeastern did not have to make that accommodation to a hearing impaired individual. It is against this backdrop that all colleges and universities should base their own academic policies in regards to accommodation but the decision should be made by an knowledgeable committee. 2. After reviewing the court's opinion in Guckenberger II, how would you advise the head of the office of disability services with respect to balancing the institution's concern for upholding academic standards with the requirements of the ADA and Section 504 The head of of the office of disability services would be advised by legal counsel that the university is required to make modifications only to "known" and validated disabilities. Thus, the university should require that it be put on reasonable notice of the request for modification (34 CFR 104.44) (Attorney, 2009). The request for modification should be submitted in writing to the Office of Disability Support Services. From there the university should make efforts to accommodate reasonable modifications in policies, practices, or procedures when the modifications are necessary. Modifications are deemed necessary when and if they "ensure that no qualified individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of the university". (The Catholic University of America Office of General Counsel, 2009) The university would also be advised to take whatever steps are necessary to ensure that qualified individuals with disabilities are not excluded, treated differently or marginalized because of the lack of aids or services. Once the requirements are established, the specific academic program must consider whether each particular applicant or student with a disability can meet them, with or without accommodations. The school or department is not required to provide tutorial services unless they are provided for students who are not disabled. A disabled student is not entitled to fundamental program alterations or a lowering of degree or program standards. A strong basis for this opinion is based upon the case Wynne v. Tufts University School of Medicine1 which provides a rational balancing of accommodation versus compromise of school standards. Problem 13 The Provost's office of a large public university has received a lengthy petition from a graduate student in psychology who was recently dismissed from the doctoral program. University records indicate that the student had been enrolled as a full-time doctoral student for 6 semesters. An explanatory note on the student's record indicates that "a pattern of insufficient academic performance in the past two semesters, in course work, clinical field work, and the qualifying exam," was the basis for the dismissal. The dismissal had been recommended by the graduate faculty of the psychology department's clinical psychology program, approved by the psychology department faculty, and further approved by the Dean of the Graduate School of Arts and Sciences. The graduate school catalogue, along with various departmental announcements distributed to graduate students, sets forth the requirements for the award of doctoral degrees. For the doctoral degree in psychology, the catalogue establishes a dissertation requirement and states that, prior to beginning the dissertation, a student "must have: (1) successfully completed all course work specified by the departmental faculty, and (2) received a passing grade on the written and oral qualifying examination." The catalogue also states that "students must demonstrate competence in an area of specialization and the ability to meet the generally accepted academic or professional standards of the discipline in which the degree is to be obtained." Further, the catalogue states that "no official time limits have been imposed on acquiring the doctoral degree." In his petition, the student challenges his dismissal and makes these points: (1) "I had a good academic record during my first four semesters. I had a "B" average. This performance indicates that I am capable of meeting the psychology department's standards." (2) "I did fail one course during my fifth semester, but that was because the professor misled me and others concerning the final exam instructions. (The course grade was based entirely on the final exam.) The professor told us during the course and again just before the exam that we would have to do 3 of the 5 questions on the exam; instead, the actual directions, used in grading our exams, required that we do 4 of the 5 questions. I relied on the professor's statements in studying for the exam and in taking the exam, and I failed because I got a zero for the fourth question that I did not do." (3) "I also did fail my clinical field work in my sixth semester, but I consider this assessment of my work to be very unfair. First, this was my very first clinical experience. Second, my field supervisor, upon whose recommendation the failing grade was based, spent very little time with me and gave me almost no feedback on my work either during or at the conclusion of my fieldwork. Third, the psychology department did not give me or my field supervisor any evaluative standards by which my work would be judged." (4) "I took my qualifying exam near the end of my sixth semester. I had to have a combined score of at least 70.00 on the oral and written parts in order to pass. The score I actually received was 69.73! I think that this score should be rounded up to 70.00 and considered a passing score. If not, I at least think that I should be allowed to take the qualifying exam over again; other students in the past have been allowed to do so." Based on current knowledge, there is no reason to believe that any of the facts stated in the petition are untrue. The Provost must now decide whether and how to respond to the petition and whether to take any other action as a result of having received the petition. Does the law constrain the Provost in her decision making on this matter How so Is there any other information the Provost would need to have before ruling on this petition If so, why is this information needed If the Provost denies the petition, would the student have substantial grounds for suing the school What arguments might the student make, and what relief could he request As noted in the class guide, In State v. Schmid, 84 N.J. at 543, a case involving Princeton University, it was noted: ... [W]e must give substantial deference to the importance of institutional integrity and independence. Private educational institutions perform an essential social function and have a fundamental responsibility to assure the academic and general well being of their communities of students, teachers and related personnel. At a minimum, these needs, implicating academic freedom and development, justify an educational institution in controlling those who seek to enter its domain. The singular need to achieve essential educational goals and regulate activities that impact upon these efforts has been acknowledged even with respect to public educational institutions. ...Hence, private colleges and universities must be accorded a generous measure of autonomy and self governance if they are to fulfill their paramount role as vehicles of education and enlightenment. . . . [at 566-567; citations and footnote omitted] Further, as the court in Napolitano v. Trustees of Princeton University 453 A.2d 263 (N.J. Super., App. Div. 1982) noted: The student comes to the academic community (the university) seeking to be educated in a given discipline. The student pays a tuition that might, in some instances, represent a contractual consideration. The university undertakes to educate that student through its faculty and through the association of other students with that student and the faculty. Transcending that bare relationship is the understanding that the student will abide by the reasonable regulations, both academic and disciplinary, that the student will meet the academic standards established by the faculty and that the university, on the successful completion of studies, will award the degree sought to the student. Here, the student has failed to pass the basic academic standards which were well known to him as academic policy. Accordingly, he has no reason to sue the school if the evidence at the provost investigation indeed demonstrates that he is not making academic standard. Accordingly, the provost, university and student is best served by instigating a formal investigation into each allegation raised by the student. It is advised that testimony be elicited from the other students. This is especially so as applied to the third allegation "The professor told us during the course and again just before the exam that we would have to do 3 of the 5 questions on the exam; instead, the actual directions, used in grading our exams, required that we do 4 of the 5 questions. I relied on the professor's statements in studying for the exam and in taking the exam, and I failed because I got a zero for the fourth question that I did not do." The testimony of the professors and students should be transcribed and the provost should make his findings accordingly. As noted by the cases provided in class manual, courts are somewhat loathe to interfere with the academic policies of universities. A student cannot be allowed exceptions to a standard especially on the doctorate level of education. If this method is followed, the student is left with no legal recourse. Works Cited Attorney, United States (2009, March 27). Electronic Code of Federal Regulations. Retrieved May 9, 2009, from Electronic Code of Federal Regulations: http://ecfr.gpoaccess.gov/cgi/t/text/text-idxc=ecfr&sid=4314ccfaf5ba844e8c4c7710f61e0822&rgn=div8&view=text&node=34:1.2.1.1.3.5.138.4&idno=34 The Catholic University of America Office of General Counsel. (2009, February 20). Retrieved May 9, 2009, from The Catholic University of America Office of General Counsel: http://counsel.cua.edu/ADA/resources/selfaudit/reasonab.cfm. Napolitano v. Trustees of Princeton University 453 A.2d 263 (N.J. Super., App. Div. 1982) Read More