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    October 2019

    Accommodating Students With Disabilities in the Title IX Process

    Disability accommodations are intended to eliminate or minimize barriers to services. In the context of Title IX, colleges and universities must consider requests for disability accommodations to help students report sexual violence and misconduct or respond to claims made against them, participate in the investigation and adjudication process, and determine which interim or supportive measures to implement. This can be tricky, since schools have a duty to provide a fair process that gives both parties the same procedural opportunities. This article identifies important considerations when a party requests an accommodation during the Title IX process. It does not address whether a student’s alleged disability is a substantive factor in the sexual misconduct claim.

    Addressing Accommodations in Title IX Procedures

    To incorporate reasonable accommodation into the institution’s Title IX procedures, schools should:

    • List the accessibility services office as an available resource.
    • Proactively engage in discussions between the accessibility services office and the Title IX coordinator allowing student referrals to be timely and seamless.
    • Link to accessibility services in Title IX FAQs.
    • Consider potential auxiliary services that students may need to report an incident or to contact the Title IX office, including communications services and website accessibility.
    • Offer assistance in complaint filing to qualified disabled students.
    • Offer assistance to a respondent in the initial communication providing notice of the claim.
    • Adopt language from the school’s general student conduct procedure stating that accommodations may be available in a Title IX grievance setting.

    While maintaining flexibility for unique situations, identify clear, prompt deadlines for providing medical information, evaluating that information, and interacting with the student. The evaluation and accommodation process may affect deadlines; consider adding “arranging reasonable accommodations” to your procedure’s reasons for extending the projected time for completing a Title IX investigation.


    Considering Requests and Evaluating Potential Accommodations

    • Confirm the Disability. After receiving an accommodation request, the institution should evaluate whether a student has a disability. Requiring medical documentation to support the disability claim. The Title IX coordinator may initiate this request for documentation but should not receive or evaluate medical documentation. Investigators who receive disability accommodation requests should refer them promptly to the Title IX coordinator.

      If a party provides medical information to an internal advisor, this information also should be referred to accessibility services. In addition, the situation should evaluate accommodation requests and related medical documentation through the accessibility resources administrator and/or the coordinator for Section 504 of the Rehabilitation Act.

    • Identify potential accommodations. If the institution confirms a disability, consult with administrators such as the dean of students, academic support advisor, residence life staff, or health center treatment providers (to the extent confidentiality allows) to identify appropriate accommodations. Determine whether previously approved disability accommodations, such as use of an assistive device in class or extended time on assignments, may be allowed in the Title IX process— but only if this does not give the student an unfair advantage.

      Accommodations to consider include extra time to review and respond to documents; longer or more frequent breaks during interviews and/or hearings; and auxiliary aids or assistive devices, including an interpreter, note-taker, recording device, or copies of documents. Consider providing a support person, distinguishing between that role and that of an advisor allowed in your Title IX process. Remind the support person of requirements and restrictions on participation.

    • Requests must be carefully evaluated. Assistance that provides preferential advantage over the other party would be an unreasonable accommodation.

    • Carefully evaluate requests. Assistance that provides preferential advantage over the other party would be an unreasonable accommodation.

      Be precise in language used during the Title IX process. The term "accommodations" should be used for actions taken to address disability-related needs. Using the term"accommodations" to describe interim or supportive measures implemented elsewhere in the Title IX process may confuse parties and their advisors and should be rephrased.

    • Document the school’s rationale. The Title IX coordinator should document the accommodations considered and granted, as well as the rationales for each decision. Consult with counsel regarding how best to capture and preserve this documentation.

    Providing Accommodation

    Once the institution approves any accommodation, the Title IX coordinator or accessibility services representative should notify the student in writing. (If the accessibility services office provides the notification, the Title IX coordinator should review the notice first. This protects the other party's due process rights.) If deadlines are affected, notify the other party while maintaining confidentiality about the requesting party’s disability.

    In addition, keep the Title IX investigator informed of deadline changes and any other accommodations affecting the Title IX process. Don't disclose the medical condition. Investigators should identify and document the accommodation provided at each meeting with the student and update the other party if it affects deadlines. 


    Due Process Issues

    Institutions must be mindful of the accommodations do not fundamentally alter the grievance procedure. The process must remain equitable for both parties. For example, if one party receives extra time or is allowed to copy documents, the other party may request the same modifications, citing fairness.

    With thoughtful planning, receptiveness, and flexibility, consideration and implementation of reasonable accommodations can be integrated smoothly.

    By Janet Elie Faulkner, founding attorney of Faulkner Legal in Massachusetts

    Resources

    Department of Education (ED) Office for Civil Rights (OCR) Q&A on Campus Sexual Misconduct, September 2017, Questions 4 and 6

    OCR Title IX Resource Guide

    OCR 2010 Dear Colleague Letter on Harassment and Bullying

    Not on the Radar: Sexual Assault of Students with Disabilities, National Council on Disability Report

    FAQs for Witnesses

    Harvard University, Title IX Resource Guide

    Curry College, Student Handbook

    SUNY: Video Overview of Sexual Assault and Violence Resources (in American Sign Language (ASL))


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