OCR Letter: The Naropa Institute

Mr. John Cobb
President
The Naropa Institute
2130 Arapahoe Ave
Boulder, Colorado 80302
Complaint No. 08-93-2041

The U.S. Department of Education, Off ice for Civil Rights (OCR), has completed its investigation of the complaint filed against The Naropa Institute (Institute). The investigation was conducted pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Section 794 (Section 504), and its implementing regulation, Title 34, Code of Federal Regulations (C.F.R.), Part 104, which prohibit discrimination on the basis of disability. The Institute is a private post-secondary institution which offers graduate and undergraduate degrees in the arts, social sciences and humanities. It is a recipient of Federal financial assistance from the Department and is, therefore, subject to the requirements of Section 504. However, because it is a private institution, OCR has no jurisdiction over the Institute under Title II of the Americans with Disabilities Act of 1990.

The complainant, who is deaf, has been enrolled as an undergraduate in the Institute's Environmental Studies program since fall 1992. She alleged that the Institute denied her auxiliary aids necessary for her to pursue her academic career. Specifically, she alleged that the Institute denied her request for an interpreter for an Institute-sponsored field trip. During the course of our investigation, because of materials provided by the Institute and statements by interviewees, we also investigated: 1) whether the Institute has a grievance procedure that incorporates due process standards and provides for the prompt and equitable resolution of complaints; 2) whether the Institute identified its Section 504 Coordinator to participants, beneficiaries, applicants, and employees.
OCR's investigation included a review and analysis of the Institute's policies and procedures regarding the provision of auxiliary aids to students with disabilities, and a review of grievance procedures and notices of nondiscrimination. OCR conducted interviews with the complainant and Institute personnel. Based on the available evidence, we have concluded that the Institute is in violation of 34 C.F.R. § 104.44(d)(1), 34 C.F.R. § 104.7(b), 34 C.F.R. § 106.8(b), and 34 C.F.R. § 104.8. The factual and legal bases for our determination are set forth below.

The Section 504 regulations pertinent to this complaint apply to any qualified handicapped person, defined at 34 C.F.R. § 104.3(j) and (k) as an individual who has a physical impairment which substantially limits one or more major life activities, or has a record of such impairment, or is regarded as having such an impairment, who also meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity. Major life activities include hearing. The state of Colorado Rehabilitation services has provided results of a hearing test by an audiologist that documents the severity of the complainant's hearing impairment. The complainant has also met the standards requisite to admission in the Institute's program, in which she is currently enrolled. Based on this evidence, OCR determined that the complainant is a qualified disabled person as defined by the regulation and, therefore, protected under Section 504.

The regulations implementing Section 504 provide as follows:

(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual or speaking skills.

(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments . . .and other similar services and actions. [34 C.F.R. § 104.44(d)(1) and (2)]

The appendix to the regulation at 34 C.F.R. § 104.44(d) clarifies that educational institutions can meet the obligation to provide auxiliary aids by assisting students in using existing resources, such as state vocational rehabilitation agencies, and that institutions have flexibility in choosing the methods by which aids will be supplied. However, the ultimate responsibility for ensuring aids are supplied lies with the institution.

The Institute has no written policy or procedures for the provision of auxiliary aids to students with disabilities. OCR found that the Dean of Students is responsible for responding to requests for auxiliary aids and has arranged for the provision of various auxiliary aids for the complainant.

On March 5, 1993, the complainant requested an interpreter for a Native American seminar field trip. The complainant was enrolled in the seminar. The field trip was a voluntary activity, however, teaching staff had told students in the class that the trip was closely related to the subject matter of the seminar and would be educationally useful. The field trip was an educational activity conducted by the Institute. The Dean and the Seminar instructor indicated that they did not believe the complainant would have been able to benefit from the field trip without a sign language interpreter.

OCR found that despite a clear request for an interpreter, the complainant did not receive a clear response from the Institute. There are conflicting statements as to whether the Dean explicitly denied an interpreter or simply stated that she was "not sure" whether an interpreter could be provided. In any event, at no time did the Institute either agree to provide an interpreter or suggest some alternative auxiliary aid. Because of inclement weather, the field trip was eventually cancelled.

Both the complainant and the Dean indicated to OCR that, prior to the cancellation of the seminar field trip, the Dean discussed with the complainant the possibility of the complainant's paying part of the cost for her field trip interpreter. According to the Dean's notes, from a meeting held after the field trip was canceled, the Dean advised the complainant that, if the field trip occurred later, she and the complainant would "see if we can work out some sort of compromise regarding the cost."

In August 1992, the Institute had requested that the complainant sign a document stating she understands that the cost to the Naropa Institute of providing interpreters for 12 credits of course work and orientation week is a financial hardship to the Institute, and that "unless we can find other sources of income . . .the [Institute] will not be able to continue this level of service." The Institute's Catalog states that 12 or more credits per semester are required for full-time students. It also states that participation in the Institute's orientation week is mandatory.

A letter dated November 11, 1992 from the Dean to the complainant states that the Institute will provide interpretive services for a full load of classes (12 credits), but says that only two of the classes can be three-hour classes. This limitation was imposed because interpreters were unwilling to sign for more than two hours, and thus two interpreters were required for three-hour classes. According to the Dean, no limitations on the number of three-hour classes that can be taken have ever been placed on students without disabilities. The November 11, 1992 letter goes on to state:

Without other sources of funding we will not be able to extend the same level of services next year. However, we will need your cooperation in applying for grants and in working with Voc Rehab to accomplish this.

Students with disabilities may not be required to bear the costs of such auxiliary aids as are necessary to allow them to participate in a recipient's educational programs or activities. The Institute does not currently have policies or procedures to ensure that auxiliary aids will be provided to the complainant, as appropriate, nor has it consistently been willing to provide such services to her. Accordingly, we have concluded that the Institute has not taken steps to ensure that the complainant is not excluded from participation or otherwise discriminated against in the Institute's program or activities, in violation of 34 C.F.R. § 104.44(d)(1).

OCR next considered whether the Institute's grievance procedure incorporated appropriate due process standards and provided for the prompt and equitable resolution of complaints under Section 504, as required by 34 C.F.R. § 104.7(b).

The grievance procedure outlined in the 1992-93 Student Handbook is the procedure that would be applied for a complaint alleging a violation of Section 504. This procedure allows for informal as well as formal resolution. If informal consultation is unsuccessful, the individual alleging discrimination contacts the Dean of students or Vice president for Academic Affairs. The administrator then contacts the individual accused and attempts to resolve the issue, presuming guilt if the accused does not respond within seven days.

If the administrator is unable to resolve the complaint, he or she convenes an ad hoc committee that includes at least one person from the constituencies represented by the parties involved (e.g., students, faculty, staff). If the parties accept the ad hoc committee's ruling, it stands. If not, the committee puts its findings before the president who may either confirm the committee's ruling or call a second ad hoc committee. The president is the final arbiter and determines any appropriate disciplinary action to be taken.

OCR found that the grievance procedure does not provide timelines for steps outlined in the procedure, or otherwise ensure that a grievance will be responded to promptly. OCR also found that the policy does not include an opportunity for a grievant to appeal. The ad hoc committee, but not the complainant, is permitted to present a case to the president if the parties concerned are not satisfied with the committee's ruling.

OCR found that the Institute's grievance procedure does not incorporate due process standards or provide for the prompt and equitable resolution of complaints alleging a violation of Section 504. Therefore, OCR finds the Institute in violation of 34 C.F.R. § 104.7(b). OCR also found that the Institute applies the same grievance procedure to Title IX sex discrimination complaints as it does to Section 504 complaints. The failure to provide for a prompt and equitable resolution of complaints is also a violation of 34 C.F.R. § 106.8(b).

OCR also considered whether the Institute had provided notification of the identity of its Section 504 Coordinator, as required by 34 C.F.R. § 104.8. Identification of a Section 504 Coordinator should be corporated into notices of nondiscrimination, which should also include information on how to contact the Coordinator by providing his or her name or title, address and phone number.

OCR found that no individual had been designated Section 504 Coordinator until after the current complaint was filed, although the Dean was responsible for the essential functions of this position and now holds the title. The Section 504 Coordinator is not identified in the Institute's existing 1992-93 Student Handbook or 1993-94 Catalog, since both of these books were printed before the Dean assumed the Coordinator position.

OCR found that the Institute did not identify its Section 504 Coordinator in its catalog, student handbooks or other public notices and concludes that the Institute has not provided adequate notice and publication of its 504 Coordinator, in violation of 34 C.F.R. § 104.8.

The Institute has submitted the enclosed Corrective Action Agreement to correct the cited violations. Accordingly, OCR is closing this case effective the date of this letter. This letter addresses only the issues listed above and should not be interpreted as a determination of the Institute's compliance or noncompliance with Section 504 or Title IX in any other respect. Individuals participating in an investigation are protected by Federal law against harassment, retaliation, or intimidation by 34 C.F.R. § 100.7(e).

Continued compliance is contingent upon the Institute implementing the provisions of its Corrective Action Agreement. Failure to perform the actions in question may result in a finding of noncompliance. Compliance with commitments and assurances will be monitored to ensure full implementation.
Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. In the event that OCR receives such a request, we will seek to protect, to the extent provided by law, personal information, which, if released, could constitute an unwarranted invasion of privacy.

We wish to thank you and your staff, particularly Ms. Sherry Ellms, for the cooperation extended to our investigator throughout the course of the investigation. If you have any questions, you may call me at (303) 844-5695 or Mr. Ramon P. Villarreal, Director, Compliance Enforcement Division II, at (303) 844-3723.

Cathy H. Lewis
Regional Director