OCR reviewed your complaint and concluded that all of by robyniscrazy


									Dr. Rosemarie Nassif
Holy Names College
3500 Mountain Boulevard
Oakland, California 94619

(In reply, please refer to OCR docket number 09-02-2005)

Dear President Nassif:

On October 24, 2001, and January 15, 2002, the U.S. Department of Education
(Department), San Francisco Regional Office for Civil Rights (OCR), notified you that
we had received a complaint from a student (hereinafter the complainant), alleging that
Holy Names College (College) engaged in acts of discrimination against her on the
basis of disability. As explained below, OCR has now completed its investigation and
resolution of these allegations and is closing this complaint effective the date of this

During the course of the investigation, OCR examined the following complaint

1.    The College failed to provide two disability accommodations to the complainant
      in a timely manner (tutoring assistance and adaptive computer software). The
      complainant maintained that she earned lower grades than she otherwise would
      have in courses that she took in the Fall 2001 semester, because of this failure to
      accommodate her disability.

2.    The College did not permit the complainant to discuss allegation one with the
      College President or Vice President, although the complainant made repeated
      attempts to schedule meetings with them.

3.    The College financial aid office placed the complainant on probation for the
      purposes of receiving continued financial aid.

4.    The College denied the complainant’s request to take Education 269 during
      Spring 2002.
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5.     The College removed the complainant from her class (Education 330A) on
       November 6, 2001, without a reasonable or non-discriminatory basis.

6.     The College retaliated against the complainant for filing a complaint with OCR,
       and/or treated her differently on the basis of disability, by directing her to
       participate in an Independent Medical Evaluation before it would allow her to
       continue her studies at the College.

7.     One of the complainant’s instructors, Ms. Thea Maestre in ED 330A, did not
       return the complainant’s completed assignments to her despite her requests.

OCR enforces Section 504 of the Rehabilitation Act of 1973 (Section 504) and its
implementing regulation. Section 504 prohibits discrimination on the basis of disability in
programs and activities operated by recipients of Federal financial assistance. The
College receives Department funds and is subject to the requirements of Section 504.

OCR reviewed documentation submitted by both the complainant and the College, and
conducted interviews with the complainant, her sister, and with College Vice President
David Fike. OCR found that, with respect to allegations 2, 3, 4 and 5, there was
insufficient evidence to support the complainant’s contentions. With respect to
allegations 1, 6 and 7, the College took voluntary action that fully resolves these issues.
These resolutions were agreed upon prior to OCR reaching any determinations with
regard to Section 504 compliance.

Allegation 1 – Facts

The complainant alleged that the College failed to provide two disability
accommodations (tutoring assistance and adaptive computer software) during the fall
semester of 2001. OCR was informed by the College that, on September 18, 2001, the
College Disability Support Services (DSS) Coordinator met with the complainant to review
the accommodations she would receive during the fall semester. The College reported
that, at this meeting, they discussed a contract that could be developed for the purpose of
hiring a tutor for the complainant (the complainant’s sister). They also discussed use of a
Kurzweil software device that would allow the complainant to have written media
translated into audio media.

Documentation provided to OCR by the complainant indicated that, in an effort to improve
the College’s ability to provide her with appropriate academic accommodations, the
complainant herself notified the Education Department Chair in the fall of 2000 of a
computer store that sold software such as the Kurzweil for use by persons with disabilities.
Acting upon this information from the complainant, the College obtained a copy of the
Kurzweil software and installed it. As the 2001-02 academic year began, the College
made a decision that it would move towards expanded use of the Kurzweil as an
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accommodation, instead of using Recordings for the Blind, which they had previously used

OCR reviewed a copy of a letter from the College to the complainant dated September 25,
2001, in which DSS summarized the September 18 meeting and the accommodations
they offered to the complainant. The letter directed the complainant to work with a
designated staff person in order to receive training on how to use the Kurzweil reading
device, and to have material scanned.      On October 16, the DSS Coordinator and the
Chair of the Education Department each met separately with the complainant. The DSS
Coordinator reviewed the contents of the September 25 letter with the complainant and
indicated that, to the extent the complainant needed assistance in getting access to any
particular readings or documents through accessible software, it was the complainant’s
responsibility to notify DSS or a faculty member. According to the College, the
complainant did not avail herself of the opportunity to be trained on the Kurzweil

With respect to tutoring, the September 25 letter from the DSS Coordinator informed the
complainant that her sister would likely be an acceptable tutor. However, the complainant
was also advised that her sister would need to provide additional information to complete
the application process. The College did not receive all of these completed forms until
January 2002. The complainant’s sister wrote to DSS on January 18, 2002, and
apologized for not turning in required paperwork more promptly. This letter included a
submission of timesheets and a request for reimbursement for tutoring services provided
during Fall 2001.

In interviews with the complainant and her sister, the complainant stated that she never
received the September 25 letter from the DSS office. She also stated that she made 12
unsuccessful attempts to use the Kurzweil equipment during the fall of 2001. According to
the complainant, the machine was either not in place in the library computer lab as
promised, or the complainant tried to use the machine in the library and was unable to get
it to work. The complainant stated that in each instance she notified either the Chair of the
Education Department or library staff. The College indicated that library staff provided
assistance to the complainant on those occasions when she approached them for help,
and that they provided appropriate orientation to the device. With respect to tutoring
services, the complainant’s sister reported to OCR that the College did not send the
required paperwork to her until late October/early November 2001, by which point the
semester was almost over.

Allegation 1 - Analysis

Under Section 504, persons with disabilities must receive an equal opportunity to
participate in any tutoring services that are generally available at the College. With
respect to the complainant’s tutoring accommodation, OCR determined that a
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preponderance of the evidence supports the College’s contention that the complainant and
her sister did not submit essential information in a timely manner. There is no evidence
that the College requirements that the complainant and her sister submit certain
documentation in order to receive tutoring were more burdensome than those imposed on
students in general. OCR therefore found insufficient evidence to conclude that the
College violated Section 504 with respect to Allegation 1.

Prior to completing its investigation of the complainant’s allegation regarding access to the
Kurzweil software, the College provided OCR with an agreement in which it committed to
provide an additional training opportunity for the complainant, so that she may use this
equipment. Based on this written commitment from the College, OCR considers this issue
to be resolved.

Allegation 2 - Facts

The College informed OCR that the DSS Coordinator met with the complainant and
discussed her accommodations “on a number of occasions” during Fall 2001. The
College also took the position that it made numerous attempts to schedule in-person
meetings with the complainant, but the complainant’s lack of cooperation prevented these
meetings from taking place. The College also indicated that the complainant’s requests
for meetings relating to accommodations were generally referred back to the DSS
Coordinator, based on that person’s role as the primary staff person responsible for
implementing accommodations. Under the practices of the College, the Vice President’s
responsibility was to enter this process only if DSS and the complainant were unable to
resolve accommodation concerns. The College stated that the complainant never really
attempted to resolve these issues through DSS.

The complainant for her part maintained that DSS was not consistently available as a
resource even when she approached them. The complainant stated that the DSS
Coordinator was often not in her office when she tried to see her. She stated that she
requested meetings with Vice President Fike specifically on August 25, September 24 and
October 1, 2001, and was not able to meet with him.

OCR noted that Vice President Fike ultimately did meet with the complainant on
November 20, 2001, in order to hear her appeal regarding DSS’ alleged failure to provide
accommodations. Vice President Fike issued a response to the complainant (denying her
claims) on December 14, 2001.

Allegation 2 - Analysis

OCR determined that a preponderance of the evidence supports the College’s position
that resources were available to address the complainant’s concerns about
implementation of accommodations. The September 25 letter from DSS, as well as a
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written log of telephone contacts made by DSS, make it clear that DSS was in frequent
contact with the complainant and attempted to address her concerns. The Vice President
did ultimately meet with the complainant, once it was clear that the complainant and DSS
were unable to resolve the complainant’s concerns without intervention. The College
reported that it is currently drafting a policy that will include procedures for resolving
disputes about delivery of accommodations. Based on this evidence, as well as the
College’s current efforts to develop written procedures, OCR finds that the College is in
compliance with Section 504 with respect to Allegation 2. OCR recommends that the
College provide a copy of its final academic accommodation procedures to the

Allegation 3 - Facts

The complainant provided OCR with a letter from the College regarding her financial aid
status, dated October 29, 2001. The letter states in part that the complainant’s financial
aid award for 2001-02 is “based on Full Time attendance.” The complainant asserted that
she had never attended the College on a full time basis and that the letter constituted a
threat to remove her financial aid if she did not attend full time. She also stated that she
had been placed on financial aid probation because the financial aid office erroneously
recorded an incomplete grade for a class that the complainant completed.

The College denied that the complainant had been placed on financial aid probation, and
provided OCR with a copy of a document that shows the complainant’s financial aid award
for Fall 2001 and Spring 2002. The Spring 2002 award was later withdrawn because the
complainant did not attend classes at the College during the Spring 2002 semester. The
College also reported to OCR that the complainant may continue to receive the financial
aid package she has received in the past, even if she continues to enroll for less than a full
time schedule.

Allegation 3 - Analysis

OCR found no evidence to support this allegation. Accordingly OCR finds the College to
be in compliance with Section 504 with respect to this issue.

Allegation 4 - Facts

The College maintains that ED 269 was not offered during the spring 2002 semester, and
that the College therefore could not enroll the complainant in this class. The complainant
also requested to take this course in an independent study format. In response to this
allegation, the College stated to OCR that it does not use independent study as a way to
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provide students with courses that are not otherwise provided in a given semester.
Further, the College pointed out that it now offers ED 269 only in conjunction with ED 361;
the latter course has a prerequisite that the complainant has not yet met.

Allegation 4 – Analysis

OCR noted that the course that the complainant wanted to take, ED 269, was not offered
during the Spring of 2002. The College is not required to provide the complainant with
access to a course that other students do not have access to during a given semester.
OCR affirmed that the College exercised its discretion in a non-discriminatory manner
when it refused the complainant’s request to take this course by independent study. OCR
finds that the College is in compliance with Section 504 with respect to this issue.

Allegations 5 - Facts

The complainant alleged that, in retaliation for her filing a complaint with OCR, she was
involuntarily removed from one of her classes (ED 330A) on November 6, 2001.

In response to this allegation, the College provided a statement from the instructor in ED
330A, who wrote that, on November 6, during her class, the complainant adopted a hostile
and disrespectful tone in talking to students who were making presentations, although they
tried to communicate with her. The result was a significant loss of class time. The teacher
reported receiving complaints from other students in the class. The College also stated
that, even prior to this class incident, the complainant had engaged in a variety of
actions that were “uncooperative and belligerent” (e.g., she disputed having received
letters from the College; canceled meetings scheduled with the College; berated faculty
members during class time).

The College acknowledged that the complainant was directed by the Education
Department Chair and the Vice President for Student Affairs to leave the class on
November 6. In a subsequent letter dated November 19, 2001, the College Vice
President for Student Affairs informed the complainant that “a number of faculty members
and students in ED 291 and ED 330A” had complained about the complainant’s behavior
in recent weeks. The Vice President for Student Affairs also indicated that she had
initiated a “preliminary review” of the situation to see if it would be appropriate to
commence proceedings against the complainant pursuant to the College’s Code of
Student Conduct. The letter also imposed some restrictions on the complainant (e.g., the
complainant was told not to act in a rude way while participating in classes and she was
directed not to enter a class in a disruptive way; she was also directed not to audiotape or
videotape interactions with College faculty or students outside of the classrooms). It is not
clear whether the complainant was prohibited from attending class ---the November 19
letter from the Vice President for Student Affairs does not bar the complainant from
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attending class; but a subsequent letter to the complainant from the Education
Department Chair dated May 7, 2002 states that “ due to a judicial review of [the
complainant’s] conduct in the course, [the complainant was] not allowed on campus to
complete attendance in this course.”

OCR reviewed a sample of the written student complaints that were submitted to the
College in connection with this incident. OCR noted that these complaints refer to the
complainant as being disruptive and disrespectful, and refusing to cooperate with other
students or the instructor. Several of the complaints described the complainant’s
demeanor as threatening. Several students indicated that they would not continue to
attend ED 330A if the complainant remained in that class.

Allegation 5 – Analysis

OCR determined that the complainant, by virtue of her self-advocacy and filing of
complaints both with OCR and with the College, had engaged in protected activity within
the meaning of Section 504 at the time she was removed from the ED 330A class.
While it was not clear that the complainant was prevented from attending the remainder
of that class by the College, it appears that the complainant missed at least one
subsequent class session at the College’s request, and stayed away from the remaining
classes in the belief that she had been asked not to attend. OCR did not interview the
instructor and made no conclusion as to whether the instructor was aware of the
complainant having filed a discrimination complaint with OCR or with the College.
However, OCR determined that, in any event, the College had a legitimate, non-
retaliatory reason for removing the complainant from class, as evidenced by the student
complaints. Based on the outcome of OCR’s investigation, OCR concluded that a
preponderance of evidence does not support a finding of retaliation.

Allegation 6 - Facts

On November 20, 2001, the complainant participated in a meeting with College Vice
President David Fike, regarding her ongoing dispute about implementation of
accommodations. In a letter to the complainant dated December 14, 2001, Vice President
Fike formally responded to each of the complainant’s allegations; at the conclusion of the
letter, he expressed his concern that, during their November 20 meeting, the complainant
had appeared to be “in very serious emotional distress.” The College elaborated on this
observation in a subsequent letter to the complainant from the College Vice President for
Student Affairs. This letter characterized the complainant’s behavior at the November 20
meeting as “disrespectful, belligerent, unprofessional, and often out of control…”and
described the complainant as exhibiting “severe distress…yelling, gesticulating…speaking
in a rambling way, hysterical, and exhibiting very anxious crying and breathing heavily.”
Page 8 - (09-02-2005)

The letter went on to say that the complainant’s relatives who attended the meeting
“alluded to past instances where [the complainant’s] health was a very serious matter and
implied to [the Vice President] that perhaps this kind of behavior by [the complainant] was
possibly of a recurring nature.”

The College informed OCR that, during the November 20 meeting, there were also
references by the complainant and her relatives to “death wishes.” Following the meeting,
the College also received reports from other staff that the complainant had made
statements in the College library indicating that she wanted literature regarding suicide by
disabled persons. Based on these factors, and subsequent to consultation with medical
professionals, the College informed the complainant in its December 19 letter that it was
placing her on “temporary administrative withdrawal,” pending her participation in an
independent medical evaluation (IME), in order to determine her fitness to resume her
studies. The complainant asked for the IME to be rescheduled and set for a more
convenient location. This request was granted. The IME occurred on March 6, 2002, and,
based on the outcome, the College wrote a letter to the complainant allowing her to re-
enroll for fall 2002 and advising her that she could begin participating in campus activities.

The College provided OCR with a copy of excerpts from its Student Handbook, which
address temporary administrative withdrawal of students. Under the policy in the Student
Handbook, the College “reserves the right to ask a student to withdraw voluntarily or to
withdraw an individual administratively if the Vice President for Student Affairs, with
appropriate professional consultation, is persuaded that the student, by reason of a
physical, mental, emotional or psychological condition, is likely to harm themselves or
others, or to interfere with the rights of other students, faculty, staff or other members of
the College community or with the exercise of any proper activities, functions or duties of
the College or its personnel, or has repeatedly harassed any member of the College
community.”      The College asserts that it placed the complainant on temporary
administrative withdrawal consistent with these guidelines.

The College’s position, as articulated to OCR, is that it did not dismiss or discipline the
complainant by referring her for an IME. According to the College, a medical
practitioner was consulted about the complainant’s observed and reported behavior; the
College was advised by the medical professional to investigate further by requiring the
IME. When asked why the College did not first provide the complainant with some form
of due process, prior to requiring her to attend the IME, the College indicated to OCR
that it had not reached a conclusion as to whether behavior manifested at the class
session on November 6 was sufficiently egregious to require a suspension or a Code
of Conduct proceeding. By the time of the November 20 meeting, the College had not
concluded that it was going to refer the complainant for a disciplinary hearing or an IME.
However, when the meeting took place, the complainant’s behavior at this meeting
raised additional concerns and put prior events into a new light. Combined with student
complaints which clearly indicated that some students did not feel safe in the
complainant’s presence, the complainant’s observed behavior led the College to
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conclude that it was appropriate to get an outside opinion as to whether the complainant
was qualified to continue her studies. At the same time, the College was concerned
about not exacerbating a situation in which a suicide attempt appeared to be a possible
outcome. The College considered meeting with the complainant again, but was
concerned that the complainant’s health might not tolerate such a meeting, and in fact
such an action might be provocative. Accordingly, the College elected to require the
complainant to complete an IME before returning to campus.

Allegation 6 - Analysis

This is a situation in which the College had a reasonable basis to believe that the
complainant presented a direct threat to herself and to others. OCR investigated why the
College did not provide the complainant with more formal or informal due process before
referring her to an IME. However, the investigation revealed the College’s concerns about
whether the complainant’s health and safety could have tolerated the stress associated
with such proceedings, particularly in light of what took place at the meeting with the Vice

During OCR’s discussion with Vice President Fike, OCR provided technical assistance to
the College regarding recommended practices in situations that call for referring a student
for a Code of Conduct Hearing or an IME. In some instances, medically based
administrative withdrawal procedures may serve to deny students with disabilities the
opportunity for due process accorded non-disabled students.               Specifically, OCR
emphasized that, in most situations, the College should provide some level of due
process opportunity for a student to explain the circumstances that the College believes
justify the IME. Further, in situations where a decision is made to proceed to an IME, best
practice would call for the College to invite the student to submit relevant information from
his/her own treating physician (See U.S. Equal Employment Opportunity Commission
Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, July 27,
2000). The College agreed voluntarily to work with OCR to update its IME referral
procedures to reflect this standard. Based on the medical exigencies of this specific case
that the College reasonably concluded were present, and the College’s voluntary
agreement in this matter, OCR determined that the College did not violate Section 504
with respect to Allegation 6.

Allegation 7 - Facts

OCR did not conduct any investigation of this allegation; however, in a voluntary
agreement dated August 21, 2002, the College affirmed that it has returned to the
complainant all work that she submitted in connection with her ED 330A class, which is still
in the possession of the College. Based on this commitment, OCR considers this
allegation to be resolved.
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This concludes OCR's review of the above referenced complaint, which is being closed as
of the date of this letter. OCR is simultaneously notifying the complainant of this action.
OCR will monitor the College’s implementation of the agreement that was adopted to
resolve certain allegations in this matter.

This letter pertains exclusively to the specific issues raised by this complaint. It is not
intended, and should not be interpreted, to express opinions as to the College’s
compliance with respect to any issue not discussed in this letter, nor does it preclude OCR
from investigating any future allegation of discrimination.

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 regarding this letter, please contact Mr. Jim Wood at (415) 556-


                                         Robert E. Scott
                                         Team Leader
                                         Office for Civil Rights


Cc:   Mike Vartain, Attorney at Law

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