Call 1-800-949-4ADA
for Technical Assistance

---

• What's New?
• Trainings
• Webinars
• Disability Law Index
• Publications
• Resources
• Affiliates
• National Initiatives
• Contact Us

---

Search our website:

---

OCR Letter: University of North Carolina at Greensboro

February 10, 2006

Patricia A. Sullivan, Ph.D., Chancellor
University of North Carolina at Greensboro
P.O. Box 26170
Greensboro, North Carolina  27402-6170

RE:  OCR Complaint #11-05-2088

Dear Dr. Sullivan:

This letter notifies you of the disposition of the above-referenced discrimination complaint filed with the District of Columbia Office of the Office for Civil Rights (OCR), U.S. Department of Education (Department), against the University of North Carolina at Greensboro (the University).  In the complaint, the Complainant alleged that the University discriminated against her on the basis of disability.  Specifically, the Complainant alleged that the University’s Department of Specialized Education Services in the School of Education refused to provide her appropriate disability modifications so that she could participate in the practicum and student teaching components of the Education of Deaf Children teacher preparation program (the Program).

OCR enforces, among other civil rights statutes, Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, as amended, and its implementing regulation, at 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability in any program or activity receiving or benefiting from Federal financial assistance from the Department.  OCR also investigates under Title II of the Americans with Disabilities Act of 1990 (ADA/Title II), 42 U.S.C. § 12131 et seq., and its implementing regulation, at 28 C.F.R. Part 35, complaints alleging discrimination on the basis of disability that are filed against state and local government entities, including public education institutions.  The University receives Federal financial assistance from the Department and also is a public education institution.  Therefore, the University is subject to the provisions of Section 504 and ADA/Title II, as well as their implementing regulations.

In reaching a determination with regard to the complaint allegation, OCR reviewed information provided by the University and the Complainant, in addition to information available from outside sources.  OCR also conducted telephone interviews with the Complainant and University staff as well as with other students in the Program and representatives of similar programs.  Our analysis and conclusions follow.

Background

In high school, the Student was classified as learning disabled in reading and written expression.  She enrolled in the University at the beginning of the Fall 2002 semester with the intention of becoming a deaf educator. She registered with the University’s Office of Disability Services (ODS) when she enrolled, submitted documentation, and was issued “Recommended Accommodations” forms for the Fall 2002, Spring 2003, Fall 2003, and Fall 2004 semesters; her testing modifications included extended time, a computer for essays, and an electronic spell checker.  At ODS’s referral, the Student was evaluated for speech/language and literacy at the University’s Speech and Hearing Center (Center) on February 10, 2003, and was diagnosed with specific reading disorder, stuttering, and specific spelling difficulty.  The Student also was evaluated for auditory processing on December 1, 2004, at the Center, but an auditory basis for her difficulty could not be identified.  The Student participated in articulation therapy at the University’s Communications Disorders Laboratory (Laboratory) for two semesters, Fall 2004 and Spring 2005; she also has participated in written language/literacy therapy at the Laboratory from Fall 2004 through the present.

When she enrolled, the Student specified her major as Education of Deaf Children, which is part of the SES Department in the School of Education; within that major, the Student chose the Teacher Education Preparation K-12 Licensure concentration.  The Coordinator of the K-12 Hearing Impaired Teacher Program (Program) became the Student’s official advisor in the Fall 2003 semester.  Also during the Fall 2003 semester, the Program Coordinator was the instructor for the “Communication Development in Children” course in which the Student was enrolled.  Because she noticed the Student’s written language difficulty in her coursework, in their Spring 2004 advising meeting the Program Coordinator referred the Student to the Center to be considered for language therapy at the Laboratory.
 
The Program uses “Advising Session” forms to document meetings each semester where students and their advisors discuss Program requirements and plan upcoming course enrollment.  Before a student in the University’s “A” licensure teacher preparation program can be a student teacher, the student must be admitted to the University’s Teachers Academy, which requires at least a 2.5 GPA (2.7 for some programs) and passing scores on the three PRAXIS I exams (reading, writing, and mathematics), along with an admission recommendation from a program advisor.  As of the end of the Fall 2005 semester, the Student had an overall GPA of 3.13.  She has not yet submitted an application to the Teachers Academy because she passed only the PRAXIS reading and mathematics exams.

Nevertheless, during the course of the Student’s advising session in March 2005, the Program Coordinator and a Program instructor told the Student that they had doubts that they could place her in a student teaching placement because of her spelling and spontaneous writing problems.  The Program Coordinator, the instructor, and the professor responsible for field placements followed up with a letter to the Student stating that they would not be able place her in a practicum or student teaching in order to meet the requirements for completing the Program because her spelling and writing difficulties did not allow her to effectively meet the spontaneous handwritten communication expectation for field placements.

The Student appealed the decision and requested a meeting involving both Program and ODS representatives, but the meeting did not change the Program’s decision about the Student’s participation in practica and student teaching.  After the SES Department Chair formally communicated to the Student that she could not matriculate with a major in the Program, the Student appealed to the Associate Dean for Teacher Education, but the Associate Dean supported the decision to deny the Student’s matriculation in the Program because of her communication skills.  The Student filed her complaint with OCR and continued to take classes at the University for other possible majors.

Analysis

To be entitled to protection under Section 504 and the ADA/Title II, a person must be a qualified individual with a disability.  The definition of an individual with a disability is the same under both statutes:  someone who has a physical or mental impairment that substantially limits a major life activity.1  34 C.F.R. § 104.3(j)(1); 28 C.F.R. § 35.104.  The Student has a learning disability and a speech impediment that affect her communication abilities.  The Student has registered with the University’s ODS and has received disability modifications, and because the University does not contest that the Student has disabilities, OCR assumes for purposes of this analysis that the Student is an individual with a disability under Section 504 and the ADA.

Under Section 504, a qualified individual with a disability at the postsecondary education level is someone who meets the academic and technical standards requisite to admission to or participation in an education program or activity.  34 C.F.R. § 104.3(k)(3).  Under the ADA Title II, a qualified individual with a disability is someone who meets essential eligibility requirements for participation in programs or activities, with or without reasonable modifications to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services.  28 C.F.R. § 35.104.

Section 504 prohibits a postsecondary institution from excluding a qualified individual with a disability from participation in any academic program or activity or from any course, course of study, or other part of the program or activity on the basis of disability.  § 104.43(a) & (c). It also is discriminatory for a postsecondary institution to fail to make modifications to academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating against a qualified individual with a disability, except that academic requirements the institution can demonstrate are essential to the program of instruction or directly related to any licensing requirement will not be regarded as discriminatory.  § 104.44(a).  Furthermore, an institution may not discriminate in the provision of academic or vocational counseling, guidance, or placement services, but this does not preclude providing factual information about licensing and certification requirements that may present obstacles to a qualified individual with a disability in the pursuit of particular careers.  § 104.47(b).

The ADA/Title II provides that it is discriminatory for a public entity to fail to make reasonable modifications in policies, practices, or procedures where necessary to avoid discrimination, unless the public entity can demonstrate that doing so would fundamentally alter the nature of the program or activity.  28 C.F.R. § 35.130(b)(7).  It also is discriminatory for a public entity to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability from fully and equally enjoying a program or activity, unless the criteria are shown to be necessary for the program or activity.  § 35.130(b)(8).  For communication disabilities, it is discriminatory to fail to provide appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in a program or activity, unless the entity can demonstrate that doing so would result in a fundamental alteration of the program or activity or in undue financial and administrative burdens.  §§ 35.160(b)(1) & 35.164.

Essential Technical Standards

Under both Section 504 and ADA/Title II, universities may not deny admission or continued participation to a student with a disability who is able to meet the essential academic and technical standards of the particular program, with or without academic adjustments, reasonable modifications, or auxiliary aids and services.  However, universities are not required to lower or waive technical standards where they can demonstrate that these standards are essential to the program or that their modification or waiver would fundamentally alter the program.

OCR may review the process that a university uses to determine whether a technical standard is an essential requirement.  An appropriate process should include a deliberated decision that is made by a group of people who are trained, knowledgeable, and experienced in the area and the decision should be a careful, thoughtful, and rational review of the program and its requirements.  Every program is different, but factors to be considered in determining whether a technical standard is essential include the nature and purpose of the program; the relationship of the standard to the functional elements of the program; whether exceptions or alternatives are permitted; whether the standard is required in similar programs in other institutions; whether the standard is essential to a given vocation for which the program is preparing students; and whether the standard is required for licensure or certification in a related occupation or profession.

The University asserted that expressive and receptive communication (both oral and written) is essential to its Program.  There are two aspects of the Program in which students encounter communication standards.  One is in the Teachers Academy application process, which applies to all University students seeking teacher licensure:  in order to be admitted to the University’s Teachers Academy (a prerequisite to applying for a student teaching internship), students must receive passing scores (as established by the North Carolina Department of Public Instruction (NCDPI)) on the three Pre-Professional Skills Tests of the PRAXIS I (reading, mathematics, and writing).  The Student has not yet passed the PRAXIS writing test and consequently has not applied to the Teachers Academy.  PRAXIS scores are reported to students, not schools, but the Program became aware that the Student had not yet passed the PRAXIS writing test from advising sessions with the Student.  However, in addition to the PRAXIS requirement, admission to the Teachers Academy requires an admission recommendation from the student’s program department based on meeting departmental requirements.

The Program has additional communication requirements that apply to all its students at all points in the Program.  The Program Director told OCR that it is the Program’s obligation, and an inherent purpose of professional teacher preparation, to attend to its students’ competencies before Teachers Academy admission, student teaching, and graduation.  The “Program Handbook Hearing Impaired K-12 ‘A’ Licensure” (Program Handbook) (current as of June 2003) lists the following communication standards as student learning goals:  use specific strategies to assess receptive and expressive communicative functioning of children who are deaf or hard of hearing; facilitate the receptive and expressive communicative functioning of children who are deaf or hard of hearing; and communicate with children or adults who are deaf or hard of hearing who use a variety of communication options.  The Program Handbook also lists the following key program competency areas and objectives:  gather and analyze communication samples from students who are deaf or hard of hearing; demonstrate proficiency in the language(s) the beginning teacher will use to instruct students who are deaf or hard of hearing; infuse spoken language and audition skills into academic areas consistent with the ability of the student who is deaf or hard of hearing; and facilitate communication between the child who is deaf or hard of hearing and his/her family and/or other caregivers.  The Program Handbook supplements “The Teachers Academy Teacher Education Handbook for North Carolina Licensure” (Teachers Academy Handbook) (January 2004 Revision), which lists as a performance expectation, applicable at entry into the professional education program, that competent professionals use knowledge of effective verbal, nonverbal, and media communication techniques to foster active inquiry, collaboration, and supportive interaction in the classroom; it also lists as one of NCDPI’s suggested competencies for student teachers that the student teacher will demonstrate effective speaking and listening skills by pronouncing words clearly and distinctly.  The Program claimed that these communication skills are essential to a student’s continued participation in the Teacher Education Preparation K-12 licensure concentration of the Education of Deaf Children major.

OCR reviewed the process that the Program used to determine that all of those communication skills (summed up as written and oral expressive and receptive communication) are essential requirements to continued participation in the K-12 licensure concentration.  The Program Coordinator explained that the previous Program coordinator developed the Program Handbook and she has revised it some in the two and a half years she has been Coordinator.  The Program is one of three K-12 Hearing Impaired teacher licensure degree programs approved by NCDPI, and the Program Handbook states that its goals and objectives reflect NCDPI’s Guidelines in Hearing Impaired K-12, as well as knowledge and skills statements approved by the Council for Exceptional Children, the Council on the Education of the Deaf, and the National Council for Accreditation of Teacher Education.  OCR finds that the Program has had written technical standards on communication skills since before the Student enrolled at the University.

In 2003, the Program Coordinator participated with representatives of the two other K-12 Hearing Impaired teacher licensure programs in the state and the NCDPI coordinator in revising NCDPI’s licensure qualifications.2  Representatives of the two other K-12 Hearing Impaired teacher licensure programs in the state told OCR that they do not have detailed written statements about essential requirements, but they follow the same NCDPI guidelines of effective communication.  The Council for Exceptional Children and the Council on the Education of the Deaf together have established standards for deaf education teacher preparation programs, including skills such as demonstrating proficiency in oral and written communication.  The Conference of Educational Administrators of Schools and Programs for the Deaf’s “National Agenda:  Moving Forward on Achieving Educational Equality for Deaf and Hard of Hearing Students” recommends that deaf educators be able to demonstrate adult-level proficiency in the communication mode and language used by the students with whom they work.  OCR finds that the Program’s technical standards on communication skills are similar to those in other deaf education teacher preparation programs and are in line with national and expert guidelines on the subject.

The Program Coordinator explained to OCR that she, the previous coordinator, and other Program and SES Department faculty have considered the relationship of the expressive and receptive communication requirement to the functional elements of the Program in discussing the ongoing relevancy and essentiality of the requirement.  The Program’s practicum and student teaching placements are in public schools working with students with hearing impairments (many with some hearing and voice and auxiliary aids or devices) who need deaf educators for pull-out resource sessions.  The deaf educator’s expressive and receptive communication in written and spoken English is critical to the language development of children with hearing impairments, for which there is a relatively narrow window, and hence there are no alternatives to effective communication for deaf educators.  The deaf educators receive work assignments for the students from the mainstream classroom teachers, and many of the assignments involve impromptu English lessons (e.g., work on past tense) so that the student can learn or understand a substantive assignment.  Program faculty regularly discussed—informally, in class, and in preparing syllabi—the need of children who are deaf or hard of hearing to be taught clearly and accurately in spoken and written language as well as in sign language.  The SES Department Chair, who has a significant background in special education, also had ongoing discussions with Program faculty about essential competencies, including effective communication, both generally for all students in the Program and applied to particular students.

Program faculty told OCR that during all their years in the deaf education teacher preparation field, they had not previously encountered a student with written communication deficiencies as severe as the Student’s, and while her articulation was a concern, it was not the primary concern.  Hence, Program faculty had not discussed the requirement much in the context of a student not being able to meet the requirement, and they have never granted, or been requested to grant, a waiver or modification of the expressive and receptive communication standard.  There have been other students with disabilities in the Program, but none with significant language processing or articulation problems.  When Program faculty encountered the Student’s communication difficulties, they consulted their colleagues on the application of the expressive and receptive communication requirement to the Student.  The Program Coordinator and instructors all have experience in various aspects of deaf education, both in practice and in teacher preparation.

OCR finds that the Program’s determination that written and oral expressive and receptive communication is an essential requirement for students in the Program was made by people who are trained, knowledgeable, and experienced in the field.  OCR further finds that the Program’s process was appropriate and educationally justified in determining that expressive and receptive communication skills are essential.

OCR next looked to see if the Program provided clear notice of the essential requirement and applied the requirement consistently to all students.  As mentioned above, the Program Handbook, available to students in print and on the University’s website, lists a number of expressive and receptive communication skills as student learning goals and key program competency areas and objectives; the Teachers Academy Handbook lists communication performance expectations and student teacher speech competencies.  The Program’s advising session form includes check-off lines to show that the advisor and student have addressed the Teachers Academy Handbook and, since the 2003 version, the Program Handbook as well.  The Student’s advising session forms show that these handbooks were addressed, and the form dated October 22, 2004, specifically indicates that the Student was to print out a hard copy.  The Program Coordinator told OCR that advisors ask students if they have any questions about the information in the handbooks, and one other student in the Program told OCR that students are responsible for the information in the handbooks and for going over it on their own and that professors and course syllabi often relate classes back to the Program Handbook goals and objectives.  Another student told OCR that she never received copies of the handbooks, but she and other students in the Program acknowledged that the handbooks are available electronically and that faculty have mentioned goals on facilitating expressive and receptive communication in Program courses and syllabi.

The Program Coordinator and an instructor told OCR that the handbooks are referred to in courses as well, and specifically the expressive and receptive communication requirement is emphasized in teaching methods and communications courses.  For instance, the syllabus for the “Auditory-Oral Communication Practices with Deaf Students” course (in which the Student was enrolled in Spring 2005) shows that students are expected to have knowledge and abilities in phonology, speech perception and production, and audition.  In another course, “Communication Development in Children,” students were notified that they must have proficient communication, and in “Sign Language II,” students were graded on correct written English meanings of signs.  The Program Coordinator further explained that “facilitating communication” means using such methods as rephrasing, restating, re-pronouncing, reiterating, explaining meanings, emphasizing parts, and implementing other strategies so that students who are deaf or hard of hearing can see or hear what they need to learn.  Students in the Program learn about the importance of these strategies in many of their major and non-major required courses.  The Student acknowledged that professors have noted in class that deaf educators must be models for their students and they cannot give parents materials with errors in them because it would reflect poorly on them, but she never got the impression that they had to be perfect.  Other students in the Program told OCR that the emphasis on language and effective communication, both written and oral, is continual in deaf education because, while it is important for all students, it is especially important for children with hearing loss because they lack full knowledge of the English language and need to see correct models of the language.   Because there is evidence that expressive and receptive communication requirements are published in the Program Handbook and are addressed in courses, OCR finds that the Program has provided adequate notice of the requirement and its applicability to all students.

OCR notes that University counsel and the ODS director presented training on technical standards to University academic departments, including SES, last summer, and the Program Coordinator has indicated that the Program is currently reviewing its technical standards to determine if revisions are necessary.  OCR suggests to the SES Department that it follow the kind of process described above as it reviews its essential requirements and that it provide notice to students of these essential requirements.

Individualized Determination

While universities do not have to lower or waive essential technical standards, they must make an individualized determination when there is a question about whether an individual with a disability can meet an essential technical standard, with or without academic adjustments, reasonable modifications, or auxiliary aids or services.  Factors to be considered in such a determination are the nature and extent of the disability; available technology; and past participation in the program by the student with a disability or other students with similar disabilities.

The Program Coordinator told OCR that questions about whether the Student could meet the expressive and receptive communication requirement first arose with regard to some of the Student’s coursework.  During the Fall 2003 semester, the Program Coordinator was the instructor for the “Communication Development in Children” class in which the Student was enrolled, and she noticed that the Student had numerous spelling errors and fragmented sentences in her coursework.  The Program Coordinator noted that the Student’s language deficits caused confusion in understanding what the Student had written, and while she was able to figure out most of what the Student meant because she knows the subject matter, she believed that a reader not familiar with the subject (such as a child who is deaf or hard of hearing) would not understand the Student’s written products.  The Program Coordinator also had noticed from the Student’s class participation and presentations that she had speech dysfluencies that might mean she would not be heard clearly by a speech reader or a child with residual hearing or an auxiliary aid.  During the Spring 2004 semester, the “Sign Language II” course instructor noticed the Student’s language difficulties when she misspelled 11 of 15 vocabulary words in response to signs.  The Student had not requested any disability modifications for that course.  The instructor spoke with the Program Coordinator about the Student’s language errors.

Because the Program Coordinator also was the Student’s advisor, she recommended that the Student get speech and language therapy.  This is reflected in a notation made on the Student’s March 26, 2004, advising session form:  “[The Student] will contact the [University] Speech & Hearing Ctr. for speech and language (spelling) therapy.  [The Program Coordinator] will contact [the then-director of ODS] re: [the Student’s] spelling and the spelling and written language competencies expected of teachers.”  The Student did contact the Center and regularly participated in speech and language therapy starting in Fall 2004.  The Program Coordinator told OCR that she left a phone message for the then-director of ODS (who has since retired) but she did not recall if there was any contact after that.  The ODS case notes supplied to OCR by the University reflect that the Student met with the then-director of ODS a few days after the advising session to discuss “strategies for handling spelling problems in the classroom,” but the records do not reflect any contact between the Program Coordinator and ODS during that semester.

The Program Coordinator explained to OCR that she first approached the Student’s questionable communication competencies through advising and referrals to support services, as she would for any student who is having difficulties with Program requirements.  With other students in the past (some with disabilities and some without), some have struggled with passing the PRAXIS tests or had difficulties mastering sign language, but all of those situations have been resolved through services or advice about deaf education options other than professional teacher education licensure, such as the community-based services concentration or lateral entry.

In the Fall 2004 semester, the Program Coordinator and other instructors continued to have questions about the Student’s communication competencies and consequently advised her to enroll in a new pre-practicum course (“Interprofessional and Instructional Field Experience”) the next semester.  The pre-practicum course was not required for students in the Student’s year in the Program (although it presently is required for new students in the Program), but was offered to all as opportunity to obtain required field-based experience prior to student teaching.  The Program faculty said that they especially encouraged the Student to enroll in the pre-practicum because they thought it would allow her to learn and practice classroom communication skills.  The Student attended the weekly seminars part of the pre-practicum course but did not participate in the field observations.  The Student said that Program faculty did not mention to her that the pre-practicum observations would be an opportunity for her to demonstrate how she would effectively communicate with children who are deaf or hard of hearing despite her difficulties.  The pre-practicum course syllabus states that students will observe teachers on a variety of strategies, including instructional feedback and language facilitation, and will be observed formally and informally by University faculty and the cooperating teacher on at least one formal lesson presentation.  Program faculty recalled that the Student declined to enroll in the pre-practicum course that semester because it conflicted with other classes and because she did not have transportation to schools for the observations.  Program faculty explained to OCR that they sometimes assign two students to the same school so that they can commute together or assign students to schools near public transportation, but the Student said she wanted to be placed her senior year when her parents would be providing her transportation.  Also during the Fall 2004 semester, Program faculty first mentioned their concerns about the quality of the Student’s written communication to the SES Department Chair, who likes to be “in the loop” on what is going on in the Department.

The Program Coordinator was the Student’s instructor again in the Spring 2005 semester for another course, “Auditory-Oral Communication Practices with Deaf Students,” and noted that the Student continued to have communication deficits.  For example, the Student’s evaluation sheet for a Power Point presentation indicated that spelling errors (8+ noted) in slide texts created some misunderstandings by class members and the instructor provided numerous editing corrections.  Although the Student was passing her courses because she was mainly being graded on her knowledge, she continued to perform poorly on the spelling and written parts of her assignments despite her use of extended time and an electronic spell checker as disability modifications.  With the Student’s permission, Program faculty reviewed the Student’s speech and language therapy records and met with the speech-language pathologist and ODS representatives.  The Student was making some progress in her speech and language therapy, but the faculty believed that the Student’s language difficulties, especially in phonologic awareness and phonemic processing, were sufficient to prevent her from meeting effective communication expectations.

Consequently, in the Student’s Spring 2005 advising session, Program faculty informed the Student of their determinations and asked the Student how she would teach children who are deaf or hard of hearing in view of her phonological memory and writing/spelling difficulties.  The Student mentioned using spell-check software, applying strategies learned in speech and language therapy, and having the cooperating teacher give her work or vocabulary before her lesson.  Program faculty told the Student that these modifications would not be appropriate in the resource room and itinerant teaching settings in which they placed students for practica and student teaching because in those settings the regular classroom teacher of the student who is deaf or hard of hearing presents lesson topics (such as vocabulary and language targets) to the deaf educator immediately prior to the scheduled sessions.  The faculty then concluded that they would not be able to place her in such a placement in order for her to complete the Program.  The faculty sent the Student a letter dated March 21, 2004 [sic] summarizing their discussions during the advising session.  The Student, ODS representatives, Program faculty, and the SES Department Chair then all met together on March 28, 2005, to discuss the Program’s concerns about the Student’s language deficits and ideas about specific modification ideas, but the faculty opined that many of the ideas would not work in the teaching setting and even with modifications the Student could not effectively communicate.

Both Section 504 and the ADA/Title II envision an interactive process with respect to provision of reasonable modifications and academic adjustments for individuals with disabilities.  Once the Program notified the Student that she did not meet the essential requirement of effective expressive and receptive communication, it then gave her an opportunity to suggest modifications with which she might be able to meet the communication requirement in the teaching environment.  Both the Program and the Student consulted disability service counselors about possible modifications.  They discussed the use of an electronic spell-checker, a laptop computer with speech software, a Franklin speller, and an earpiece or an iPod, but none of these would overcome the Student’s phonologic memory deficits to enable her to effectively communicate spontaneously with students who are deaf or hard of hearing.  They also discussed the Student’s request to plan student lessons the night before, but the Program faculty explained how this would not work in the resource setting of their placements because the classroom teachers often identified students’ needs immediately prior to resource time.  The ODS director’s notes following the group meeting indicate that ODS would continue to work with the Student to “think of accommodations that may prove useful—however, at this time suggestions have been exhausted.”  OCR finds that the Program and the Student participated in an interactive process with respect to trying to identify modifications for the Student in the teaching setting.

The Student’s therapy progress reports dated December 2, 2004, and May 3, 2005, noted that she worked hard and improved in some skills but made consistent errors in phonemic awareness of short vowels, had difficulty decoding nonsense words, needed to discontinue work on multi-syllable words to read single syllable words, had difficulty using rules to decode words phonetically, and needed to continue to improve her spelling.  She was reevaluated by the Center on April 7, 2005, to measure her progress in language-literacy therapy, and the speech-language pathologist concluded that the Student “continues to struggle with phonological processing deficits that make it difficult for her to make use of information involving the sounds of speech during linguistic operations.”

The University provided evidence that the Student’s language disabilities prevent effective communication with children who are deaf or hard of hearing, even with reasonable modifications, and that there has never been a student in the Program with the same degree of language deficit as the Student.   There have been other students with disabilities in the Program and in similar programs in the SES Department who have met the effective communication requirement in the student teaching setting, and while there have been students with disabilities who needed modifications in the coursework parts of the Program or similar programs, none have ever requested any modifications during an internship placement.  There was evidence that nobody could identify a reasonable modification that would enable the Student to meet the essential requirement of effective communication in the teaching setting.  OCR finds that the Program made an individualized determination that the Student could not meet the essential requirement of effective expressive and receptive communication, with or without reasonable modifications.  Because the Program followed an appropriate process in determining that the Student did not meet an essential program requirement, it was not improper for the Program to conclude that the Student was not qualified to continue in the Program.

Conclusion

There is insufficient evidence to support the allegation that the University refused to provide the Student appropriate disability modifications so that she could participate in the practicum and student teaching components of the Program.  Therefore, we are closing this complaint effective the date of this letter.  This determination addresses only the allegation discussed herein and should not be construed to cover any other issues regarding the University’s compliance with Section 504 and ADA/Title II.  You should be aware that pursuant to Section 203 of the ADA/Title II, the Complainant may file a private suit irrespective of OCR’s decision in this matter.

Finally, OCR notes that in the course of the investigation, the Associate Dean for Teacher Education reiterated her offer, originally presented in her June 2, 2005, appeal decision letter, to meet with the Student to discuss her situation and future possibilities.  The Associate Dean told OCR that her background is in special education and she has worked with students with disabilities like the Student’s on monitoring themselves and learning skills to address their difficulties.
                                                                       
Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request.  If OCR receives such a request, we will seek to protect, to the extent provided by law, personal information that, if released, could constitute an unwarranted invasion of privacy.

Please be advised that the University may not harass, intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces, or because one has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under the laws OCR enforces.  If any individual is harassed or intimidated because of filing a complaint or participating in an OCR investigation, the individual may file a complaint with OCR alleging such harassment or intimidation.

We wish to thank you and your staff for the assistance we received during this complaint investigation.  If you have any questions regarding this letter, please contact Ms. Kristi Bleyer Johnson, the attorney assigned to this complaint, by telephone at (202) 208-5437 or by e-mail at Kristi.Bleyer@ed.gov.

Sincerely,

 

Sheralyn Goldbecker
Team Leader

cc:  Jen Palancia Shipp, Associate University Counsel