Usually at this time of year, my last blog entry is devoted to the greatest hits for the year. However, for this year the data points are a bit mixed up because I  moved my blog platform to the Lex Blog platform halfway through the year. So, I don’t have data for the whole year. Judging from the data I looked at for the half year, it looked like it was pretty similar to last year’s. So, that left me with wondering what should I blog on. If there has been a theme to anything for this year, it has been that the world is very much in it together. On rare occasions, I have blogged about disability rights in other countries (I distinctly remember blogging on a decision from Australia saying that deaf individuals cannot serve on juries, but for some reason I can’t seem to find that blog entry. I can report that that particular decision went to United Nations Commission on Human Rights because Australia is a signatory to the UN Convention on Disability Rights and the United Nations Commission on Human Rights told Australia to fix the problem). With respect to today’s blog entry, Scott Lissner, the ADA Coordinator of the Ohio State University sent me a link involving a case out of the highest court, the Court of Appeal, in Ontario Canada, Longueepee v. University of Waterloo and Human Rights Tribunal of Ontario found here180210190190191, that I thought was very interesting reading. So, I thought I would talk about it and then compare it to how it might work under the ADA. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; concurrence reasoning; and how this case would play out under the ADA and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. For ease of understanding, I use “plaintiff.’ rather than British Commonwealth term, “claimant.”

I

Facts

Plaintiff had attended another University several years before applying for admission to University of Waterloo. At the prior University he achieved grades well below the University’s minimum admission requirement for transfer students. Accepting that the plaintiff had undiagnosed and un-accommodated disabilities (posttraumatic stress disorder and a moderate brain injury), when he attended the prior University, the University of Waterloo convened an admission committee to consider his application, consisting of academic transcripts, information about his volunteer work, and reference letters even though he did not meet the minimum admission requirements and had applied late. Focusing solely on the grades at the prior University, the University of Waterloo decided that he had not demonstrated the ability to succeed at their university and was refused admission. At the Human Rights Tribunal of Ontario level, plaintiff lost. He appealed to the next Level, the Divisional Court, and won. The University then appealed to the Court of Appeals, the high court of Ontario.

II

Court’s Reasoning

§ 11 of the Ontario code provides:

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

1. The Divisional Court, the intermediate appellate court in Ontario, referred to the three-part test in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), at para. 20, that applies when a requirement or standard has been shown to be prima facie The responding party must prove on a balance of probabilities that:
   • it adopted the standard for a purpose or goal that is rationally connected to the function being performed;0
   • it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
   • the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
2. The Divisional Court was satisfied that the University had discharged the first two elements. The adoption of an academic standard for admission based on past academic performance as the best indicator of future academic performance is rational. It reflects the good faith belief that the standard is necessary to fulfil the purpose of admitting students who have the ability to succeed in their university studies.
3. The Divisional Court was not satisfied, however, that the University met the third prong of the Grismer The Court noted that the Admissions Committee had professed an “accommodation dialogue”, but the dialogue was “firmly anchored to the very grades which [the Admissions Committee] implicitly, if not expressly, recognised as not being reflective of Mr. Longueépée’s abilities”: at para. 53. In the court’s view, the Admissions Committee “seem[ed] to have deflected its responsibility to evaluate Mr. Longueépée’s application as presented”: at para. 53. While it purported to consider information other than Mr. Longueépée’s grades, the explanation for its decision was bereft of any evaluation of that information: at paras. 54-56. The University did not have to presume that Mr. Longueépée would be successful in university merely because his previous grades were unaccommodated, but it did have to establish that it accommodated him in the admissions process to the point of undue hardship: at para. 55.
4. The Divisional Court concluded that because the University acknowledged that it could not interpret Mr. Longueépée’s grades free from their discriminatory effect, it either had to: (1) assess Mr. Longueépée’s candidacy without recourse to his marks; or (2) establish that it would result in undue hardship for it to do so: at para. 57. It failed to do either of these things: at para. 58. The University did not consider an approach that placed no reliance on prior marks, and so it could not now establish that no such approaches are available or would cause it undue hardship: at para. 60.
5. The Divisional Court noted that, in her reconsideration decision, the Vice Chair of Human Rights Tribunal of Ontario had suggested that accommodation of Mr. Longueépée’s disabilities in the admissions process could lead to undue hardship (in the requirement to conduct an in-depth assessment of every application from a person asserting a disability). However, undue hardship had not been advanced by the University and there was no evidence in the record to support this conclusion: at para. 61.
6. After accepting that the University had met what the Vice Chair characterized as the procedural duty to accommodate plaintiff’s inability to comply with its grade criteria for admission due to disability by conducting an individualized assessment of the application, the Vice Chair concluded that the University met its substantive duty to accommodate when it considered only the unaccommodated grades to be relevant to his ability to succeed in the University. That approach doesn’t make sense because it says that the University has no duty to carry through with the process to accommodate the plaintiff in his application for admission once a committee was formed.
7. The Vice Chair recognized an undue hardship defense even though the University never argued or presented evidence of undue hardship.
8. The finding of prima facie discrimination resulting from the University’s grade admission standard was not challenged by the University in the Ontario Court of Appeals.
9. Failure to accommodate claims have a procedural and a substantive process to them. The procedural part is the identification of the process or procedure to be adopted in providing the accommodation to the person who would be subjected to the discriminatory standard. Once the institution has an understanding of the plaintiff’s needs, it has the obligation to ascertain and seriously consider possible accommodations that could be used to address those needs, including the option of undertaking an individualized assessment in the case of a discriminatory standard.
10. The substantive component of accommodation refers to the steps taken to implement the accommodation to the point of undue hardship. It involves the consideration of what was actually done in the accommodation process to meet the individual’s needs.
11. There was no indication that the University engaged in a back-and-forth with the plaintiff or undertook any other steps to assess how his disabilities might impact his ability to meet the University’s grade standard.
12. No indication existed that the admission committee made any effort to understand how plaintiff’s disabilities might have affected his grades at the prior University, or to analyze whether his grades interpreted in light of his disabilities, might assist in showing his ability to succeed at the University.
13. The admission committee failure to question how it should interpret plaintiff’s prior grades amounted to a decision to take those grades at face value. So, any individualized analysis of the plaintiff’s situation was inextricably tied to the discriminatory standard, the focus on his prior grades, which by the very nature of setting up an admission committee had already been recognize as not being reflective of plaintiff’s abilities.
14. The admission committee consideration of only plaintiff’s prior grades is inconsistent with the individualized and holistic process described by the University when it concluded that it had met its procedural duty to accommodate.
15. University did not consider whether plaintiff’s supplementary materials demonstrated an ability to succeed at the University. In particular, there is no indication that the admission committee considered plaintiff’s volunteer work on behalf of child abuse survivors and reference letters given for that work as relevant to his ability to succeed in the University. In fact, the Vice Chair of the Human Rights Tribunal of Ontario said that the admission committee was entitled to disregard reference letters in volunteer work as indicators of potential academic success. In other words, grades were the only indicator of possible success at the University.
16. No evidence exists that the University presented to the Human Rights Tribunal of Ontario that the admission committee had actively engaged with the additional material provided by the plaintiff in order to determine whether that material demonstrated his ability to succeed at the University.
17. Reasonable accommodations cannot take the form of simply applying the discriminatory grade standard to his unaccommodated grades. If the University was going to take that approach, it needed to establish undue hardship, which it never even tried to do. If it had tried to go with an undue hardship defense, the University would have had the burden of proving that issue up. No such evidence was presented on the issue and it was not before the Vice Chair when she made her decision.
18. In essence, rather than inquire into the steps taken by the admission committee and respond to the prima facie discrimination that would result from the application of the grade standard to plaintiff’s prior academic record, the Vice Chair accepted that plaintiff had been accommodated when the admission committee based the decision solely on his unaccommodated grades. Further, the Vice Chair effectively gave credit to an undue hardship argument when the University did not present that evidence or rely on it for that defense. Accordingly, the divisional court was correct in setting aside the decisions on judicial review.
19. The divisional court said it was sending the matter back to the admission committee with directions on how to assess plaintiff’s application and not to the Human Rights Tribunal of Ontario to determine the appropriate remedy. That doesn’t make sense because the conclusion that the University discriminated against the plaintiff in the admission process is inevitable on the record that was before the Vice Chair of the Human Rights Tribunal of Ontario when she made that decision. Accordingly, the appropriate remedy is to return the matter to the Human Rights Tribunal of Ontario for further disposition in light of the court’s opinion so that it may fashion the remedy that promote compliance with the code.

III

Concurrence by Lauwers

1. Courts have treated universities with some caution.
2. The feature of University autonomy at issue in this case is the admission process. The admission process is a core feature of University autonomy.
3. It has long been accepted that courts should be reluctant to interfere in the core academic functions of universities.
4. The decision whether to admit the plaintiff to Department of Biology’s math or science program was a decision going to the core of the University’s functions.
5. Tribunals and courts should be equally careful to preserve the integrity of the University admission process.
6. Nothing in the decision is intended to discourage or disparage the University’s grade admission standard.
7. The deference owed to University does not completely insulate academic decisions from tribunal or judicial scrutiny, but the Human Rights Tribunal of Ontario must be cautious not to override the admission standards of universities and admission to ensure accommodations. Here, they were too cautious and plaintiff wins. However, other cases will be different and the Court of Appeal will have to feel their way between the tensions of deference to University decisions in core areas of their mandates and the duty to accommodate.

IV

How Would This Case Play Out with the ADA and thoughts/takeaways?

1. I am not licensed in Canada or Ontario. So if you really want to have this decision analyzed for what it means for your college or university or your client dealing with an Ontario or Canadian college or university, get legal counsel licensed in Ontario and/or Canada.
2. Both the Ontario law and the ADA talk about reasonable accommodations/modifications and the concept of undue hardship/burden. The meanings in both laws appear to be very similar. Also, in both places modifications must be made up to the point of undue hardship/undue burden.
3. The ADA prohibits policies, practices, and procedures that discriminate against persons with disabilities when reasonable modifications/accommodations can be made.
4. United States courts do give deference to academic decisions but that very much depends upon how the academic institution went about reaching that decision. We discussed that in this blog entry181211191191192.
5. Diversity has become a big issue on American college and university campuses. It is unlikely that a university would focus solely on an individual’s grades in making an admission decision. It would play at many universities a huge part of it, but it would not be the sole criteria.
6. One wonders if the University would not have won this case if legal counsel had argued undue hardship. Could the University have a legal malpractice case, such as we discussed here182212192192193. I do not know how similar the prima facie elements of legal malpractice claims in Canada are to of the prima facie elements of such claims here in the United States.
7. The interactive process is always a good idea. With respect to title II of the ADA, there is case law out there saying that the interactive process applies to title II of the ADA. You don’t see such case law with respect to title III of the ADA, though preventive law and the ADA paradigm itself demands it. However, across all titles of the ADA there is the requirement to engage in individualized analysis. The Ontario Court of Appeal mentions that the Ontario disability discrimination law also requires an individualized analysis.
8. A university need to look at the entire file that the student presents before making an admission decision.
9. Ontario uses “undue hardship,” while title II and title III of the ADA use “undue burden,” and “fundamental alteration.” From reading the opinion, undue hardship in the Ontario law seem to be pretty close to the ADA concept of fundamental alteration and undue burden and to the ADA concepts of financial undue hardship and logistical undue hardship.
10. For who gets into selective colleges and why, I highly recommend Jeffrey Salingo’s book on that subject, which can be found here183213193193194. Reading the book was a real eye-opener. It is also very easy to read. If you have a junior in high school or even a senior in high school and are interested in selective colleges, it is in my opinion mandatory reading. It is also mandatory reading for anyone working with students on their college choices. From reading that book, at selective colleges the grades you achieve in difficult classes are probably the number one thing that admissions committees look at. Test scores that match up with that performance are also important, though that is changing with colleges deemphasizing standardized tests altogether.
11. Could a similar case happen here in the United States with a similar result? Hard to say. I do think that courts would share the concerns of the concurring judge when he says that who gets in is at the very core of colleges and universities. So, courts would be very reluctant to get involved with respect to who gets in. However, if a university or college did not look at the whole file as a matter of course that may be another story.
12. Here in the United States, it is more likely that a high school student with a disability will fall into one of three situations: 1) a student with a disability that does not realize he or she has one; 2) a student with a disability who has a §504 plan; or 3) a student with a disability who has an IEP under the IDEA. With respect to the §504 plan, if the plan worked properly the student would be at the same starting line as the student without a disability and the academic record would reflect performance with being fully accommodated (I realize that there can be quite a bit of divergence between the theory and the practice of §504 plans). The IEP process works differently as it is based on goals and not a starting line analogy. It would possibly be more difficult for a college or university to figure out potential of the student from an IEP v. a §504 plan. However, unless a student discloses the disability up front in the admission process (I did at both the Bachelors and J.D. levels) it is unlikely that the admission committee would ever know about the student’s disability. If a student did disclose a disability, it would be wise for the University to look at the whole file. All this said, from reading Jeffrey Salingo’s book selective universities do look at the whole file to some degree if for no other reason than to maximize achieving a diverse class.
13. Bottom line: colleges and universities should review the entire file of the student. Courts, at least in this country, are likely to give the college or university quite a bit of discretion if they make such a holistic review.
14. I am not licensed to practice law in Canada or in Ontario. Also, other Canadian provinces may have their own laws on this subject.