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    July 2017

    OCR Alert: Avoid Discriminatory Housing Surcharges for Disabled Students

    OCR Alert: Avoid Discriminatory Housing Surcharges for Disabled Students

    Colleges and universities could face new complaints filed with the Department of Education’s Office for Civil Rights (OCR) alleging discrimination against disabled students for imposing additional campus housing accommodations charges. OCR has said such surcharges violate Section 504 of the Rehabilitation Act of 1973, which covers schools that receive federal funds, and/or Title II of the Americans with Disabilities Act of 1990 (ADA), which covers public schools. United Educators (UE) recommends taking steps promptly to begin ensuring that your housing policies do not discriminate because of disability.

    UE Claims Experience

    UE has recently received multiple OCR housing discrimination complaints against our members; each alleges that the institution improperly imposes surcharges on disabled students who require single rooms as accommodations, usually by charging the single room rather than double room rate. Some complaints also allege that institutions charge disabled students extra fees for amenities such as kitchen access, air conditioning, or early move-in dates the institution provides as accommodations.

    What Should Institutions Do?

    In this round of housing discrimination complaints, OCR has generally declined to identify the complainants, who often are not students. It instead appears that at least one unrelated individual is scrutinizing institution websites for potential flaws and then filing discrimination complaints with OCR. Institutions should consider taking actions to help protect themselves from such complaints and ensure they meet their legal obligations to disabled students.

    Olabisi (Bisi) Okubadejo, an attorney who previously worked at OCR and now advises and represents higher education clients nationwide, recommends that institutions begin taking the following steps and attempt to complete them before the new academic year begins: 

    • Review relevant written policies and procedures on your website and student handbook or other hard copy materials for problematic references or omissions. For example, do they state or imply that students who receive single rooms, regardless of the reason, will pay the single room rate?  

    • Consult legal counsel to determine if your institution should revise its policies, practices, or procedures to comply with Section 504 and/or the ADA. If so, work with counsel to make those revisions.

    • Train employees in residence life, student affairs, disability services, and other involved departments on any changes.

    Voluntary Resolution Agreements With OCR

    OCR has begun entering into voluntary resolution agreements (VRAs) with several institutions after finding violations. In general, these VRAs require the school to acknowledge its obligation to provide housing for disabled students on a nondiscriminatory basis and “at the same cost” as for other students. In addition, the school promises to revise its housing policies, procedures, and practices to clarify that it does not discriminate against disabled students, will make reasonable modifications to avoid discrimination, and will submit the revisions to OCR for approval. The institution typically agrees to publish the revisions and notify OCR.

    Moreover, if OCR finds a violation affected a particular student or class of students, an institution should prepare to reimburse them for any surcharges or costs that OCR concludes were improperly imposed. In two previous resolution agreements, OCR required SUNY Potsdam and the University of Wisconsin – Richland to reimburse individual disabled students $775 and $200 respectively for single room surcharges that OCR found resulted from disability discrimination.

    Resources 

    OCR Resolution Agreement with State University of New York (SUNY) at Potsdam, 2011

    OCR Resolution Agreement with the University of Wisconsin -- Richland, 2016


    By Hillary Pettegrew, senior risk management counsel


    United Educators thanks Bisi Okubadejo, of counsel with Ballard Spahr LLP in Baltimore, for her contribution to this blog.



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