OCR Letter: Pepperdine University

Dr. David Davenport
President
Pepperdine University
24255 Pacific Coast Highway
Malibu, California 90263
Complaint No. 09-94-2175-I

On September 6, 1994, the U.S. Department of Education (Department), San Francisco Regional Office for Civil Rights (OCR), received a discrimination complaint filed against Pepperdine University (hereinafter University) alleging a violation of Section 504 of the Rehabilitation Act of 1973. The complainant, [ ] (hereinafter referred to as S.), alleged that the University discriminated against her on the basis of disability. Specifically, S. alleged that the University failed to take her disabilities into account in reaching a decision regarding her petitions for readmission to the School of Law for the 1994-95 academic year.

OCR initiated its resolution process by requesting and reviewing documentation from the University and S. OCR also conducted several interviews with law school faculty, S., and others knowledgeable about the complaint allegation. As explained further below, during the course of the investigation the University indicated a willingness to take actions which will resolve the issues raised in this complaint. As a result, the investigation of this complaint is being closed.

Legal Standard

The Department Section 504 regulations, at 34 C.F.R. § 104.4(a), state that a qualified disabled individual shall not, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination in a recipient's programs or activities.
Section 104.4(b)(1) provides that a recipient may not: (i) deny a qualified disabled individual the opportunity to participate in or benefit from aids, benefits or services; (ii) afford a qualified disabled individual the opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded others; or, (iii) provide a qualified disabled individual with an aid, benefit, or service that is not as effective as that provided to others.

Under section 104.4(b)(2), aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for disabled and nondisabled individuals, but must afford disabled individuals an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement.

Pursuant to section 104.43(a), a qualified disabled individual may not, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any postsecondary education program or activity of the recipient.

Finally, section 104.44(a) states that a recipient shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of disability, against a qualified disabled student.

Factual Summary and Resolution

S. was a first-year student at the University's School of Law during the 1993-1994 academic year. She was unaware that she had a disability upon enrollment, and therefore did not identify herself as being disabled or request any accommodations during the course of the academic year.

Under the School of Law academic standards, each student must maintain a minimum grade point average (GPA) of 72 to remain in good standing. S. was enrolled in the required first year courses. By the end of the fall semester she was aware of her academic difficulties and sought out her professors for advice. S. continued the required courses and attended the academic support program during the spring semester.

S. spoke to the Associate Dean of Academics (Dean) prior to the first year final grades being posted because she anticipated that she had not met the required GPA. After discussing a variety of self-help strategies, all of which S. stated that she had employed, the Dean suggested she seek private assessment for a learning disability. S. received the names of two diagnostic centers from the Dean, and she ultimately contacted one of these, the Stillman Dyslexia Center.

The Stillman Center assessed S. on June 21, 1994, concluding that she had dyslexia and significant attentional problems. S. then entered into an agreement with the Stillman Center to provide her with a course of "treatment" for these conditions. Soon thereafter, S. met with the Dean and informed him of her assessment results and plan for treatment. The Dean advised S. of the process to petition the faculty for readmission after academic dismissal, and suggested that she include her assessment information in her petition.

Following this meeting S. was notified at the end of June 1994 that she had a cumulative GPA of 67.96, and that she had been academically dismissed as a result. S. submitted her first petition for readmission on July 18, 1994. In her petition, she raised her newly detected disability as a reason for her low GPA, and attached information from the Stillman Center. A faculty committee reviewed the petition for readmission and, by letter dated July 20, 1994, S. was informed that her petition had been denied. Neither S. nor other students who petitioned were provided the basis for the faculty determination.

On August 2, 1994, S. submitted her second petition for readmission. She again focussed on the effect that her disability had on her first year GPA, and included information from the Stillman Center. By letter dated August 2, 1994, S. was informed that her second petition had also been denied.
S. alleged in her complaint to OCR that the University School of Law discriminated against her because it did not properly consider her disabilities in reaching a determination on her petitions for readmission. On April 18, 1995, prior to reaching findings, OCR contacted University representatives and discussed possible actions which could resolve the complaint without further investigation or findings. OCR presented its concerns regarding the scope of the diagnosis and treatment received by S. at the Stillman Center, and with the faculty committee's subsequent consideration of this information during the petition process.

After further discussion, the University provided OCR with a written statement outlining the actions that it will take, a copy of which is enclosed. The University will: a) provide S. with valid diagnostic testing for a specific learning disability and attention deficit disorder from a qualified professional; b) if she is diagnosed with a disability, to allow S. to file a new petition for readmission to repeat the first year law school program; c) convene a faculty committee to consider S.'s petition and supporting documentation under appropriate Section 504 standards; and d) consult with a qualified professional and develop guidelines for considering petitions for readmission which raise disability as the basis for deficiencies in academic performance.

At any point during the resolution process OCR may, prior to reaching a compliance determination, close the investigation of a case if the recipient provides OCR with a written commitment specifying actions that will appropriately resolve the allegation. OCR has determined that the enclosed agreement, when fully implemented, will resolve the allegation raised in this complaint. Therefore, the investigation of this complaint is being closed as of the date of this letter. OCR is concurrently advising the complainant of this action.

OCR will monitor implementation of the agreement and may reopen this investigation if the University does not complete the agreed-upon action as scheduled. This case was resolved prior to OCR reaching a final determination, and the University expressly denies any violation of law. Accordingly, this letter is not intended to signify any findings by OCR concerning University compliance or non-compliance with the applicable civil rights laws and regulations.

Under the Freedom of Information Act, it may be necessary to release this document and related records on request. If OCR receives such a request, it will seek to protect, to the extent provided by law, personal information which, if released, could reasonably be expected to constitute an unwarranted invasion of privacy.

If you have any questions, please contact Mr. Charles R. Love, Director, Compliance Division I, at (415) 556-7025.

John E. Palomino
Regional Civil Rights Director