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    March 2017

    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, participate in the investigation and adjudication process, and in providing interim measures. 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 disability services office as an available resource.
    • Link to disability services in Title IX FAQs.
    • Offer assistance in complaint filing instructions to qualified disabled students. For example, Harvard’s procedure states, “Special arrangements can be made for individuals with disabilities…” in preparing a written complaint.
    • Adopt language from the school’s general student conduct procedure stating that accommodations may be available in a Title IX grievance setting.

    Identify clear, prompt deadlines for providing medical information, evaluating that information, and interacting with the student, while maintaining flexibility for unique situations. The evaluation and accommodation process may affect deadlines; consider adding “arranging reasonable accommodations” to your procedure’s reasons for extending the 60-day milestone.


    Considering Requests and Evaluating Potential Accommodations

    Confirm the Disability

    After receiving an accommodation request, the institution should evaluate whether a student has a disability by:

    • Requiring medical documentation to support the disability claim. The Title IX coordinator may initiate this request, but should not receive or evaluate it. Investigators who receive disability accommodation requests should refer them promptly to the Title IX coordinator.
    • Evaluating accommodation requests and related medical documentation through the disability 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, learning center advisor, 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.
    • Auxiliary aids or assistive devices, including an interpreter, note-taker, recording device, or copies of documents.
    • Providing a support person, distinguishing between that role and that of an advisor allowed in a 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.

    Document the school’s rationale

    Document the accommodations considered and taken, 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 the accommodation, the Title IX coordinator or disability resources representative should notify the student in writing. 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, without disclosing 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’ potential impact on the grievance procedure so they do not fundamentally alter that 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

    Office for Civil Rights Dear Colleague Letter, Questions and Answers on Title IX and Sexual Violence, April 29, 2014, Questions A-4, B-3, D-5, G-1, J-4 

    Office for Civil Rights (OCR) 2010 Dear Colleague Letter on Harassment and Bullying

    Harvard University, Office for Sexual and Gender–Based Dispute Resolution (ODR)

    Harvard University, Title IX Resource Guide (listing Harvard University Disability Services)

    Notre Dame, Title IX FAQs

    Notre Dame, Individuals With Disabilities

    University of Michigan, Sexual Assault and Survivors with Disabilities

    University of Michigan, Respondent Support Services and Information

    Gallaudet University, Procedures for Handling Complaints Involving Students, “Time Frames”


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