Jon Hyman’s blog is in my blogroll and I want to thank him for calling to my attention the case of Sjostrand v. The Ohio State University. Jon, as always, did a great job in his blog entry, but I want to take a different approach. What I want to discuss is how this case may be a game changer with respect to plaintiff advocacy, and also how preventive law can come from anywhere. As is typical, I have several different sections of the blog entry and the reader is encouraged to focus on any and/or all of those sections. The particular section for this blog entry are: facts, game changer, preventive law tips, and takeaways.

I
Facts

There is some debate about the facts in the opinion, which also had a dissenting opinion with it, but some of the facts are clear. The plaintiff graduated magna come from Ohio State University in only 2 1/2 years. She then applied to the PhD program in school psychology where her grade point average, 3.87, was tied for highest in the applicant pool and her GRE scores, a combined 1110, exceeded the school’s requirements. She also suffers from Crohn’s disease and according to the plaintiff, her interviews with two of the program’s professors focused more on her ailment than they did anything else. Eventually, of the seven applicants interviewed by the school, the only applicant rejected was the plaintiff. She then sued alleging violations of title II of the ADA and the Rehabilitation Act. There is some debate in the opinion as to just how much time was spent in the actual interview discussing her disease. Also, there is some debate in the opinion about who brought it up first, the plaintiff through her application materials or the people doing the interviews. The lower court found for The Ohio State University and the plaintiff appealed.

II
Game Changer

The Sixth Circuit is on a bit of a roll with respect to pro ADA plaintiff decisions, this one and EEOC v. Ford,. This decision could be a game changer for the following reasons:

1. The parties assumed that since the case looked more like the typical title I claim than it did a title II claim, that the title I burden shifting scheme for proving discrimination applied. One wonders whether such an assumption had to be made by the parties.

2. The court stated that for the plaintiff to prevail under the Rehabilitation Act, that she must make the same case as for her ADA claim except that she must show that she was denied admission solely because of her disability rather than by reason of it (the actual language of the court). What this means is that the Sixth Circuit is clearly saying that “solely by reason,” and “by reason of,” are two different causation standards. If so, and it may not be so, this is momentous. For starters, it will have a huge impact on the claim that plaintiffs make. What it means if it is upheld is that with respect to a title II claim, there would be little reason for a plaintiff suing under title II of the ADA to even bother with suing under the Rehabilitation Act, especially since the remedies are the same anyway. That said, since the Rehabilitation Act allows for damages providing you can show deliberate indifference, it does make sense to allege a Rehabilitation Act claim with respect to a title III entity that takes federal funds (such as a private place of higher education). That said, what this case shows is that it is entirely possible for a plaintiff to be faced with two different causation standards at the same time even though the two different claims involve the same facts. For example, if a private university was involved here rather than the Ohio State University, the plaintiff would be suing under title III of the ADA and then trying to get damages under the Rehabilitation Act through a showing of deliberate indifference. It is quite possible under the discussion contained in this blog entry that mixed motive is available in a title III case in addition to a title I case because both Titles involve status discrimination and both Titles contain “on the basis,” language.

3. A close reading of the opinion really reveals that what is really being argued about between the majority opinion and the dissent is whether mixed motive applies to a title II case. Assuming that it does, which the majority does assume, then what you have here, if both of the opinions of the majority and dissent are taken at face value, is a situation where it is quite possible that the plaintiff will prevail on her ADA claim (plenty of evidence to suggest improper motive), but will not prevail on her Rehabilitation Act claim (evidence also exists to suggest that the disability was not the sole reason). Whether this particular plaintiff runs into the situation where she prevails under title II of the ADA but does not under the Rehabilitation Act, doesn’t really matter because the remedies for title II and the Rehabilitation Act claim are the same. However, as mentioned in the prior paragraph, this takes on different significance if a private university that took federal funds was involved.

III
Preventive Law Tips Can Come from Anywhere

As the court mentioned, this is not a typical title II situation. It really does talk more like a title I situation where preemployment medical inquiries were made. In the title I situation, employment involving an entity of 15 or more employees, there is an elaborate scheme dealing with medical inquiries before the offer, during the conditional job offer process, and postemployment. However, this was not an employment situation. What is an entity to do here? Also, especially in higher education when it comes to trying to get admitted into programs, it is not unusual for a person with a disability to bring the disability out front and center as a way of saying that he or she would add diversity and a unique perspective to the program (I certainly did that with respect to my application for my first law degree and probably my second as well). As a matter of preventive law, to my mind, it makes sense to take the title I principles dealing with preemployment medical inquiries and apply them out with respect to the admissions process, whether that be in the title III or title II contexts. Therefore, the only issue should be whether the person can meet the essential eligibility requirements of the program with or without reasonable modifications/accommodations. That does mean that the program very much want to have in place just what are the essential eligibility requirements for the program at issue.
If the applicant during the course of the interview brings it up, there are two possible approaches. First, ignore it. Second, a bit riskier, but within legal bounds, and as an alternative approach, you might ask something along the lines of, “any reason you cannot perform the essential eligibility requirements of the program with or without reasonable modifications/accommodations?” Again, such an approach presumes that you have in place just what are the essential eligibility requirements of the program. While title I does prohibits preemployment medical inquiries, it does not prohibit asking whether a person can do the essential function of a particular job with or without reasonable accommodations.

IV
Takeaways

1. It is possible that the causation standard for the rehabilitation act law and for title II of the ADA are different. If so, as discussed above, that has broad ramifications. It is also quite possible, if not probable, again as discussed above, that the causation standards for violation of title I and title III of the ADA are different than the causation standard for the Rehabilitation Act. Again, a conclusion with broad ramifications.

2. While admissions to higher education programs are not govern by title I of the ADA, it makes a lot of sense to take the preemployment medical inquiry, conditional job offer, and postemployment medical inquiry system and apply it over to title II and title III situations as a matter of practicing preventive law.

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