Abstract
Although the worst of the COVID‐19 pandemic appears to be over, its impact on higher education administrators will continue through the effects of long COVID‐19 and through continued fear of illness. Recent guidance from the Office for Civil Rights and the Department of Justice (bit.ly/3IPSbYh) notes that long COVID, an occasional consequence of even mild COVID infections, can be a disability if it substantially limits a major life activity, and therefore can be expected to trigger requests for academic adjustments and reasonable accommodations. The guidance notes that common symptoms associated with long COVID include, but are not limited to, fatigue; difficulty thinking or concentrating, sometimes referred to as brain fog; depression; anxiety; and heart palpitations, all of which may directly interfere with the ability to think and learn.
The OCR/DOJ guidance suggests schools consider offering affected students the already conventional accommodation of extended time on timed exams. Because extended time on timed tests rarely, if ever, fundamentally alters a test, resolving extended time requests can easily fit within the current disability services practice of approving extended testing time in accommodation letters without prior faculty consultation. But some students can also be expected to seek attendance modifications, so‐called flexible deadlines, memory cue cards and formula cards for tests, assignment waivers, and other academic modifications, enabling them to choose whether to come to class, take scheduled tests, timely complete assignments, or take closed book exams, all of which differ from extended testing time because they potentially fundamentally alter a test, course of instruction, or degree. Notably, the OCR/DOJ guidance does not endorse any of these accommodations, all of which remain outside conventional practice at many institutions.
I've written other articles that address why memory cue cards (bit.ly/3xHdTLb), flexible deadlines (bit.ly/3JNXsyN), and attendance waivers (bit.ly/3KWVGN9) differ from extended testing time and can fundamentally alter a test or course. For similar reasons, attendance waivers and modifications can also fundamentally alter a test or course in the era of active participation classroom pedagogy that has replaced easily recorded lectures.
Both court decisions and OCR determination letters have long recognized that the fundamental alteration determination is an academic judgment to be made by academic bodies, and further, that if made in a procedurally sound manner free from animus and stereotypes, is a judgment entitled to deference if challenged by a student. Schools should anticipate an increased number of such requests, and have in place procedures to address their resolution.
Because of the increased potential to fundamentally alter a test or course, schools should not simply issue accommodation letters approving memory aids, attendance or deadline flexibility, or other academic modifications upon a finding of a disability, leaving it to faculty to object after receipt of an accommodation letter. When receiving such requests, best practice should begin rather than end with faculty consultation. Rather than leaving it to faculty to object after receipt of an accommodation letter, court decisions, OCR determinations, and the principle of shared academic governance suggest that disability services providers should reach out early to faculty members and department chairs to begin the fundamental alteration determination.
If faculty are amenable, then proceed accordingly, but if faculty object, then a process for making a fundamental alteration determination should proceed as part of the interactive process before issuance of an accommodation letter. Notably, OCR and the courts consistently have deferred to fundamental alteration determinations that follow sensible procedures.
As always, schools must give every request individualized consideration in the interactive process, but should recognize that the purpose of the interactive process is to ensure thorough consideration, not to compel a negotiated agreement. Because the fundamental alteration exception is not subject to a least common denominator rule, different schools may come to different conclusions on the same issues, with some approving deadline flexibility, memory aids, and remote attendance, while others determine one or more to be either unnecessary for equal access or a fundamental alteration.
ABOUT THE AUTHOR.
Michael R. Masinter, Esq., is a Professor of Law Emeritus at Nova Southeastern University and member of the legal panel of the American Civil Liberties Union of Florida. He teaches, writes about, and litigates disability rights, civil rights, and employment law cases.