Today’s blog entry explores the question of when does a statute of limitations begin to run in an ADA case not dealing with a failure to accommodate. It also explores the question what might an ADA grievance procedure look like. Our case of the day is Endres v. Northeastern Ohio Medical University decided by the Sixth Circuit on August 30, 2019. As usual, blog entry is divided into categories and they are: key facts; ADA statute of limitations was not missed; due process claims and qualified immunity; what does due process in a disciplinary matter look like; and takeaways. Of course, the reader is free to focus on any or all of the categories.
Summary of Facts
Endres has ADHD and has taken medication to treat that condition since he was six years old. He started with Ritalin. He graduated from high school as valedictorian and enrolled in the accelerated B.S./M.D. program at Northeast Ohio Medical University, a public university. After completing his undergraduate studies in two years, graduating magna cum laude, he began medical school. Around March 2015 he felt that the medication was over sedating him and made him lethargic. So, he stopped taking it all together. By that time, Endres passed 14 of the 15 required classes for the first year of medical school, but he still had one class left. No longer on Ritalin, he failed that class. So, the school made him repeat the entire first year curriculum during the following academic year, including the 14 classes he had passed.
Before he returned to school that fall, he consulted with his physician to find a medicine that would treat his ADHD without inducing the unwanted side effects. In August 2015, he began Strattera. He alleged Strattera helped him concentrate without him feeling drowsy, but it was not a magic bullet. Unlike Ritalin, Strattera did not suppress his fidgeting. Even so, he stuck with the new medicine.
Back at school, he repeated the classes that he had the first year because he had to take all of the classes again even though he had passed them all except one. One of those classes, was Human Development and Structures. At the school people take tests using the school’s laptop with a special software program that allows them to zoom in and out and manipulate images on the screen. Endres alleged that the school’s laptop are set up at the lowest brightness level and that student cannot make the screen any brighter. They do have the ability to zoom in, and when they do so, a light flashes as the person zooms in.
On September 28, 2015, he took a test in that course. Footage from the test reveals Endres fidgeting and repeatedly glancing toward the right in the direction of his seatmate. Endres said that he was responding to the flashing light. Also, he said it was physically impossible to see any legible content on the laptop to his right because he was sitting about 5 feet away and because all laptop was set to the lowest brightness level. Even so, one of the proctors of the test filed an irregularity report saying that Endres appeared to look repeatedly at the laptop to his right but that it was possible he was just nervous. That report made its way to the school’s Chief Officer Of Student Affairs and everything went downhill from there, including but not limited to: 1) the school not acknowledging his Dr.’s note that the fidgeting imitated what she saw in the office; 2) the school ignoring his Dr.’s suggestion for reasonable accommodation so that Endres wouldn’t be perceived as cheating; 3) the Chief Officer Of Student Affairs ignoring a request to re-create testing condition through a field test so as to prove that it was impossible to cheat; 4) the school refusing to consider evidence that it made perfect sense that he and the student next to him would have similar test responses even without cheating; 5) the school refusing to inform Endres about any part of the Chief Of Student Affairs presentation to the disciplinary panel and not asking Endres any questions related to her presentation; 6) the school denying Endres request for evidence centered on debunking the cheating analysis until the eve of his deadline to appeal; 7) the school refusing to consider a variety of evidence not introduced previously that countered cheating allegations; 8) Endres not having the ability to offer evidence rebutting assertions made in a memo from the Chief Officer Of Student Affairs to the disciplinary panel containing numerous inaccuracies and misrepresentations.
As a result of all this, Endres brought suit claiming that the school effectively concluded that his ADHD precluded him from completing his medical studies even though reasonable accommodations could have been made to ensure that the appearance of academic misconduct was dealt with. He also sued for violations of his due process rights. He filed suit for both injunctive relief and declaratory relief as well as for damages. With respect to damages for allegedly violating his due process rights, he filed suit against the Chief Officer Of Student Affairs both in her official and personal capacity. With respect to personal capacity, she defended on the grounds of qualified immunity. With respect to the ADA, the school defended on the grounds that the statute of limitations had expired.
ADA Statute of Limitations Was Not Missed
- The statute of limitations for §1983, ADA, and the Rehabilitation Act in Ohio is the Ohio two-year statute of limitation for personal injury actions.
- Under federal law, statute of limitation period begins when the plaintiff knows or has reason to know of the injury that is the basis of his action.
- The plaintiff went through one disciplinary panel, an appeal, and then another disciplinary panel, and plaintiff had no idea that he was terminated from the program until the very end of the process when it could then be said a final decision was made. Accordingly, the suit was filed within the statute of limitations.
Due Process Claims and Qualified Immunity
- In the Sixth Circuit, suspension of a student for two years implicates a protected property interest in students continued enrollment at a public university. So, expulsion certainly implicates a property interest.
- With respect to procedural due process dismissal for disciplinary misconduct and dismissal for academic underperformance get different treatment. Dismissal for disciplinary misconduct is entitled to a higher degree of due process.
- A decision is disciplinary when the University engages in first level fact-finding to resolve a disputed objective question about the student’s conduct, and the outcome of that inquiry could lead to the student’s dismissal or a long suspension. In other words, a disciplinary inquiry involves a factual determination about whether the conduct took place or not.
- Since no case from the United States Supreme Court or the Sixth Circuit has held that cheating is a disciplinary matter mandating more robust procedures under the due process clause, personal liability under §1983 is not in play because the constitutional rights were not clearly established when the violation occurred.
- Since qualified immunity only applies to damages, the declaratory relief and injunctive relief actions can still go ahead.
What Does Due Process in a Disciplinary Matter Look like
- A student has a right to be present for all significant portions of the hearing when the hearing is live.
- When the hearing is not live, the University must provide the accused with the opportunity to respond, explain, and defend.
- Student must be allowed in the room while the other side presents their case to the disciplinary panel.
- The University must provide the student with an explanation of the evidence against him or her.
- Evidence to be presented to the panel by the school must be shared with the student prior to the presentation to the panel.
- The school would be wise to ensure that a full airing occurs and that evidence is not accepted uncritically, such as the memo from the Chief Officer of Student Affairs that was hotly disputed by Endres and his doctors.
- We have written about statute of limitations in ADA cases before, such as here and here. This case talks about the discovery rule. Here, this case holds that the statute of limitations begin to run once a final decision is made and the person did not have an expectation that a final decision could have been made or was made any earlier.
- Only public schools have to worry about constitutional procedural due process for their students. However, as a matter of preventive law, schools may want to consider a similar process anyway regardless of whether they are a public school.
- A full airing of grievances with lots of due process does two things. First, it allows the student to feel better by being allowed to present his or her side of the story fully. Second, a court is more likely to back up the school the more due process given.
- Qualified immunity is basically a one off because once the court says that the law was not clear at a certain moment in time, the law is then clear after that moment in time.
- Since virtually all institutions of higher education take federal funds and have 15 or more employees, the Rehabilitation Act final implementing regulations requires schools to have an ADA/504 coordinator and an ADA grievance procedure. Public entities are required by the final implementing regulations of title II of the ADA to have an ADA coordinator and an ADA grievance procedure if they have 50 or more employees.
- Just because a school’s handbook says that something is academic misconduct does not transform a disciplinary matter into a dismissal for academic reasons. The critical question is whether University is engaging in first level fact-finding to resolve a disputed objective question about whether the student’s conduct occurred.
- Consider not having the person from the school who presents evidence to the disciplinary panel be in the room when the panel deliberates.
- The student had a gift for legal advocacy and/or was ghosted by a very competent attorney. While schools have different rules on whether an attorney can be involved in such processes, nothing prevents a student from working with an attorney to make sure he or she is putting forward the best case possible. The earlier the student involves competent counsel, the more likely the student will be able to put his or her best case forward.
- From a student’s perspective, early disclosure of a disability is better. If medications or a disability mean a school may misinterpret what it sees, a student should put the school on notice of that to avoid problems later.
- It’s harsh to force a person to repeat an entire year when just one class was failed, especially when exigent circumstances exist. Make sure policies exist on when a full repetition of classes will occur and that such policies are followed consistently.
- From a student’s perspective, if medicine you need has been working but no longer is, don’t just stop taking it. Instead, head to a physician to figure out alternatives.
- If taking a test in the seating is disruptive, the student should immediately take action at that time by alerting appropriate personnel.
- The earlier disability services is approached in a student’s studies, the easier it is to not have people make assumptions later.
- Qualified immunity only applies to damages. It doesn’t apply to declaratory relief and injunctive relief actions. Whenever you have attorney fee shifting statutes, prevailing on declaratory relief or injunctive relief still nets the plaintiff attorney fees.
- Based on this opinion, plaintiff seen to be in a good position for prevailing on his due process claims with respect to his declaratory relief and injunctive relief claims.
- Under this decision, academic matters get lower due process then disciplinary matters. However, as a matter of preventive law, the more due process given by the University upfront, the more defensible any such decisions are in court later.