The first case we will talk about is Klene v. Trustees of Indiana University, 413 Fed. Appx. 919 (7th Cir. 2011). It is an unpublished decision and so before using it, you’ll want to check your rules on that as restrictions exist on how you can use unpublished decisions depending upon the jurisdiction you are in. That said, it is a very useful case for our first one. In this case, a student in the school of social work was required to complete a practicum, which included a classroom component and a semester long placement at an outside agency. After being rejected from two agencies, the student suggested that the school allow her to complete a modified practicum through that agency anyway. More specifically, the student proposed that she work from home under remote supervision of the agency and participate as a social worker at meetings unaffiliated with the agency. The school rejected that idea because it would not satisfy the essential purpose of the course. The student then tried a third agency but that agency ended the placement after a few weeks. The school then allowed her to try a fourth agency but that didn’t work out either. Subsequently, the school informed the student that she failed the course because she did not complete the placement component, which meant under the school policy that she was removed from the school of social work altogether. The student then brought suit alleging failure to accommodate her under the Americans With Disabilities Act and section 504 of the rehabilitation act. For our purposes, what is critical is that the Seventh Circuit said that the court should show great respect for the faculty’s professional judgment when it comes to genuinely academic decisions.

Thus, the question becomes what practical steps can be put in place so that a court can be convinced that the essential eligibility requirements that a school has for a particular program or activity are the result of sound professional judgment and a genuinely academic decision that should be respected.  Some of the steps might include: 1. Ensuring that the department and/or program understand what essential eligibility requirements are; 2. Ensuring that the department and/or program is responsible for developing those essential eligibility requirements; 3. Those essential eligibility requirements of the program and/or activity are then reviewed by a person knowledgeable about the Americans with Disabilities Act and its requirements; 4.  Ensuring that the essential eligibility requirements of the program and/or activity are based on what is fundamental to those programs and/or activity and are not set up in such a way as to suggest a disparate impact claim ( i.e screen out people with disabilities). 5. The person responsible for reviewing the essential eligibility requirements defers to the judgment of the faculty in that department with respect to that particular program and/or activity essential eligibility requirements. Of course, there may be some negotiation between the department or program and the person responsible for reviewing the essential eligibility requirements. 7. Once the negotiations are complete and the essential eligibility requirements are in final form, those requirments are posted generally and a copy is sent down to the school disability services office, where will serve as the basis for deciding what reasonable accommodations are possible.

In this way, the school would be showing that people with subject matter expertise were responsible for coming up with the essential eligibility requirements of the activity and/or the program  and that great care was taken in in developing those essential eligibility requirements.

Bill Goren