For Immediate Release: Senate Bringing College Mental Health to Focus

PRESS RELEASE
LEGISLATION SUPPORT ADVISORY

For Immediate Release
June 25, 2018

Contact: Heather Schroeder
(877) 569-MIND(6463)

Support of Bill To Improve Access To Mental Health Services in Higher Education

On June 23, 2018 The Student Mental Health Policy Alliance voted to support a Senate Bill by Bob Casey(D PA) aimed toward improving access to mental health services for students at college campuses across America. The Higher Education Mental Health Commission Act would establish a national commission focused on mental health conditions facing students at colleges and universities across the country.

Between 2010 and 2015, enrollment in colleges and universities increased by only 5 percent, yet the number of students using mental health services increased by 30 to 40 percent. Students seeking help are increasingly likely to have attempted suicide or engaged in self-harm, the same study found. More than 50 percent of students between the ages of 18 and 24 reported having a severe psychological problem or experiencing feelings of hopelessness. This bill would help address the lack of resources to support students with mental health issues.

Highly publicized campus suicides and research showing an alarming prevalence of mental illness on campuses have heightened the sense of urgency. The reality of rampant mental illness on campus shatters the notion of college as a carefree time when the biggest worries are passing finals and finding a date. For many students, dark shadows shroud the sheltered nest of academe.

More than 40 percent of US students become so depressed during their four years in college that they have trouble functioning, while 15 percent suffer clinical depression, according to a 2004 survey of 47,202 students by the American College Health Association. Suicide remains the second-leading cause of death among college students, claiming about 1,100 lives a year.

“Today, campuses are plagued with an unprecedented demand for counseling services,” said Jacob Griffin, a former on-campus advocate—disturbed by campus administrators’ lack of responsiveness in addressing these issues; pivotal to student success and retention. “It is not uncommon for a university counseling center to have a 6 to 8 week wait…with mental health—symptoms intensify quickly,” Griffin continued.
Jacob launched a national non-profit in 2016 strategically focused on helping campus counseling centers address the influx by lobbying campus leaders to increase staffing and budgetary allotments. He has said that budgets in nearly 95% of Public University centers’ in the past 10 years have not changed to match increases in enrollment numbers, let alone the increases in demand. His research has found 7 out of 10 Campus Counseling Center Directors have resigned or retired within the last several years; citing lack of administrative support and over-extension of resources as key factors.

Specialists in the field have long known that the onset of mental illness often comes during adolescence or early adulthood. Living away from home, often for the first time, compounds stress and anxiety. So, too, does pressure to succeed in an increasingly competitive climate on campus.

As the stigma of having a diagnosed mental illness subsides, demand for counseling will presumably continue to rise. Criticizing Millennials as seemingly less resilient is the most popular diatribe, but it shouldn’t be, Griffin emphasized. In fact, it undermines a decade’s worth of work by counselors, psychologists, and student advocates who have strived to not only bring mental health to the forefront of discussion, but to reassure students that there is no shame in struggling—that experiencing mental distress is actually common and not a sign of weakness. “The distinct proof of concept and need,” Griffin said, “is what compels me to continue to advocate: the fact that I’ve had boots-on-the-ground experience…having witnessed and experienced the adversity has led me to continue bringing awareness to these issues” The result of normalizing mental health in higher education is that peers, faculty and bystanders, have intentionally led sufferers to the centers that promise to help them. “There is absolutely,” Griffin, “a lack of follow-through on that commitment.”

About The Student Mental Health Policy Alliance
A subsidiary of the 501c3 charity: Griffin Ambitions Limited, The nations leading voice on increasing campus mental health services too improve the lives of millions of Students affected by mental illness. We are committed to advocating for campus support, while reviewing and improving current trends in college mental health and highlighting promising practices that contribute to student success. We employ various strategic approaches too improve mental wellbeing on campuses. We take an active role in identifying initiatives consistent with our priorities, seeking out Higher Education Institutions’ that can advance these initiatives and work alongside administrators and stakeholders. We aim to effect change at grassroots and systemic levels. Since Founder Jacob Griffin’s mental health advocacy beyond his campus began in 2015, we have distinctly established ourselves through dedication, commitment and an unceasing belief in our mission to strengthen and improve how college Counseling Centers address their influx. Through our united support for education, advocacy and awareness efforts, the Student Mental Health Policy Alliance is at the forefront of increasing campus provisions, and is a distinctly recognized force in urging new ideas and solutions to improve educational outcomes.

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Mental Health in Higher Education Starts With Griffin Ambitions and the Student Mental Health Policy Alliance

 

II

115TH CONGRESS

2D SESSION S. 3106

To authorize the Secretary of Education to establish an Advisory Commission

on Serving and Supporting Students with Mental Health Disabilities

in Institutions of Higher Education, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 21, 2018

Mr. CASEY (for himself, Mr. KAINE, Mr. NELSON, Ms. HASSAN, Ms. SMITH,

Mr. BLUMENTHAL, and Ms. KLOBUCHAR) introduced the following bill;

which was read twice and referred to the Committee on Health, Education,

Labor, and Pensions

A BILL

To authorize the Secretary of Education to establish an

Advisory Commission on Serving and Supporting Students

with Mental Health Disabilities in Institutions of

Higher Education, and for other purposes.

1 Be it enacted by the Senate and House of Representa2

tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Higher Education

5 Mental Health Act of 2018’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds the following:

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2

S 3106 IS

1 (1) More than 75 percent of mental health con2

ditions begin before the age of 24.

3 (2) More than 25 percent of students between

4 the ages of 18 and 24 reported a mental health con5

cern.

6 (3) More than 50 percent of students between

7 the ages of 18 and 24 reported having a severe psy8

chological problem.

9 (4) More than 50 percent of students between

10 the ages of 18 and 24 reported feelings of hopeless11

ness.

12 (5) Higher education counseling centers are de13

voting more time to rapid-response treatment with

14 more than 25 percent of students who sought help

15 reporting they had intentionally hurt themselves.

16 (6) Over a 5-year period, counseling center uti17

lization increased by an average of 30 to 40 percent,

18 while enrollment increased by only 5 percent, forcing

19 institutions to stretch mental health services to more

20 students without increasing resources.

21 (b) PURPOSES.—The purposes of this Act are the fol22

lowing:

23 (1) To ensure States and institutions of higher

24 education are provided with accurate information on

25 the mental health concerns facing students.

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S 3106 IS

1 (2) To provide detailed recommendations that

2 institutions of higher education, States, and the

3 Federal Government can take to improve the mental

4 health services available to students and properly

5 treat the rising number of students with mental

6 health issues.

7 SEC. 3. ADVISORY COMMISSION ON SERVING AND SUP8

PORTING STUDENTS WITH MENTAL HEALTH

9 DISABILITIES IN INSTITUTIONS OF HIGHER

10 EDUCATION.

11 (a) IN GENERAL.—The Secretary of Education shall

12 establish a commission to be known as the Advisory Com13

mission on Serving and Supporting Students with Mental

14 Health Disabilities in Institutions of Higher Education

15 (referred to in this section as the ‘‘Commission’’).

16 (b) MEMBERSHIP.—

17 (1) TOTAL NUMBER OF MEMBERS.—The Com18

mission shall include not more than 19 members,

19 who shall be appointed by the Secretary of Edu20

cation in accordance with paragraphs (2) and (3).

21 (2) MEMBERS OF THE COMMISSION.—The

22 Commission shall include 1 representative from each

23 of the following:

24 (A) The Office of Postsecondary Education

25 of the Department of Education.

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S 3106 IS

1 (B) The Office of Special Education and

2 Rehabilitation Services of the Department of

3 Education.

4 (C) The Office of Civil Rights of the De5

partment of Education.

6 (D) The Office of Civil Rights of the De7

partment of Justice.

8 (E) The National Council on Disability.

9 (F) A membership association for adminis10

trative and personnel professionals focused on

11 creating an inclusive higher education environ12

ment for individuals with disabilities, as deter13

mined by the Secretary.

14 (G) An organization that represents the

15 Protection and Advocacy for Individuals with

16 Mental Illness program, as determined by the

17 Secretary.

18 (H) An organization operated by and rep19

resenting secondary and postsecondary edu20

cation students with mental health disabilities

21 advocating for mental health services and sui22

cide prevention, as determined by the Secretary.

23 (3) ADDITIONAL MEMBERS OF THE COMMIS24

SION.—In addition to the members included under

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5

S 3106 IS

1 paragraph (2), the Commission shall include the fol2

lowing:

3 (A) Four members from leadership of in4

stitutions of higher education who have dem5

onstrated experience in successfully supporting

6 the retention and graduation of students with

7 mental health disabilities. With respect to such

8 4 members, 1 member shall be a staff member

9 of a 2-year degree-granting institution of higher

10 education, 1 member shall be a staff member

11 from a 4-year degree granting institution of

12 higher education, 1 member shall be a member

13 of campus law enforcement, and 1 member

14 shall serve as a general counsel. Such 4 mem15

bers shall represent institutions of differing

16 sizes.

17 (B) Three members from family members

18 of individuals who are—

19 (i) enrolled in an institution of higher

20 education on the date such family member

21 is appointed to the Commission; or

22 (ii) former students with a mental

23 health disability.

24 (C) Four members from individuals with

25 mental health disabilities, including not less

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S 3106 IS

1 than 2 individuals enrolled in an institution of

2 higher education on the date of appointment to

3 the Commission. Any remaining member shall

4 be an individual with a mental health disability

5 who has attended an institution of higher edu6

cation.

7 (4) TIMING.—The Secretary of Education shall

8 establish the Commission and appoint the members

9 of the Commission not later than 60 days after the

10 date of enactment of this Act.

11 (c) CHAIRPERSON AND VICE CHAIRPERSON.—The

12 Commission shall select a chairperson and vice chair13

person from among the members of the Commission. Ei14

ther the chairperson or the vice chairperson shall be a stu15

dent or former student with a mental health disability.

16 (d) MEETINGS.—

17 (1) IN GENERAL.—The Commission shall meet

18 at the call of the chairperson, but not more often

19 than 8 times.

20 (2) FIRST MEETING.—Not later than 60 days

21 after the appointment of the members of the Com22

mission under subsection (b), the Commission shall

23 hold the Commission’s first meeting.

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S 3106 IS

1 (e) DUTIES.—The Commission shall conduct a study

2 and prepare a report for the Secretary of Education that

3 includes the following:

4 (1) Findings from stakeholders, including

5 through solicitation of public testimony, related to

6 the challenges faced by students with mental health

7 disabilities in institutions of higher education, in8

cluding—

9 (A) the services available to students with

10 mental health disabilities in institutions of high11

er education and their effectiveness in sup12

porting these students;

13 (B) the impact of policies and procedures

14 that help or hinder the goal of providing equal

15 opportunity for students with mental health dis16

abilities, such as reasonable accommodation

17 policies, mandatory and voluntary leave policies,

18 and disciplinary policies;

19 (C) the use of protected health information

20 of students with mental health disabilities by

21 institutions of higher education, including the

22 extent to which campus-based mental health

23 providers share this information with college or

24 university officials without student consent; and

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S 3106 IS

1 (D) the impact of providing mental health

2 services on a student’s academic performance,

3 well-being, and ability to complete college.

4 (2) Conclusions on the major challenges facing

5 students with mental health disabilities in institu6

tions of higher education.

7 (3) Recommendations to improve the overall

8 education, and retention and graduation, of students

9 with mental health disabilities in institutions of

10 higher education, with the goal of helping these stu11

dents access educational opportunities equal to those

12 of their non-disabled peers.

13 (f) COMMISSION PERSONNEL MATTERS.—

14 (1) TRAVEL EXPENSES.—The members of the

15 Commission shall not receive compensation for the

16 performance of services for the Commission, but

17 shall be allowed reasonable travel expenses, including

18 per diem in lieu of subsistence, at rates authorized

19 for employees of agencies under subchapter I of

20 chapter 57 of title 5, United States Code, while

21 away from their homes or regular places of business

22 in the performance of services for the Commission.

23 Notwithstanding section 1342 of title 31, United

24 States Code, the Secretary of Education may accept

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S 3106 IS

1 the voluntary and uncompensated services of mem2

bers of the Commission.

3 (2) STAFF.—The Secretary of Education may

4 designate such personnel as may be necessary to en5

able the Commission to perform its duties.

6 (3) DETAIL OF GOVERNMENT EMPLOYEES.—

7 Any Federal Government employee, with the ap8

proval of the head of the appropriate Federal agen9

cy, may be detailed to the Commission without reim10

bursement, and such detail shall be without inter11

ruption of loss of civil service status or privilege.

12 (4) FACILITIES, EQUIPMENT, AND SERVICES.—

13 The Secretary of Education shall make available to

14 the Commission, under such arrangements as may

15 be appropriate, necessary equipment, supplies, and

16 services.

17 (g) REPORTS.—

18 (1) INTERIM AND FINAL REPORTS.—The Com19

mission shall prepare and submit to the Secretary of

20 Education, as well as the Committee on Health,

21 Education, Labor, and Pensions of the Senate and

22 the Committee on Education and the Workforce of

23 the House of Representatives—

24 (A) an interim report that summarizes the

25 progress of the Commission, along with any in-

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S 3106 IS

1 terim findings, conclusions, and recommenda2

tion as described in subsection (e); and

3 (B) a final report that states final find4

ings, conclusions, and recommendations as de5

scribed in subsection (e).

6 (2) PREPARATION AND SUBMISSION.—The re7

ports described in paragraph (1) shall be prepared

8 and submitted—

9 (A) in the case of the interim report, not

10 later than 1 year after the date on which all the

11 members of the Commission are appointed; and

12 (B) in the case of the final report, not

13 later than 2 years after the date on which all

14 the members of the Commission are appointed.

15 (h) TERMINATION.—The Commission shall terminate

16 on the day after the date on which the Commission sub17

mits the final report under subsection (g).

Æ

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‘Grasping at straws’: Farm advocates concur more resources needed to combat high suicide rates

Psychologist Michael Rosmann said that whenever he is home at his family’s farm in western Iowa he is taking calls or answering emails from farmers asking for help or counseling.

He specializes in behavioral health for farmers and said he has received more requests for assistance in recent months than the last three decades.

“My phone and my email have just been completely filled for the last six months. I work virtually seven days a week if I’m around the phone is always going email is always coming,” he told ABC News.

The calls are part of a critical issue faced by farmers, their profession faces the highest overall rate of suicide in the nation — much higher than the number of suicides in the general population, according to the Centers for Disease Control and Prevention.

PHOTO: Debbie Weingarten and Michael Rosmann during a visit to his farm in Harlan, Iowa, September 2017. Audra Mulkern/Female Farmer Project
Debbie Weingarten and Michael Rosmann during a visit to his farm in Harlan, Iowa, September 2017.

Debbie Weingarten reached out for help four years ago when she was running a vegetable farm in Arizona. She was a first-generation farmer and said that even without the pressure of maintaining a family farm she felt depressed and anxious about the possibility that they would lose money or crops.

“I felt like the risk that farmers undertake to produce food for eaters is not spread out fairly across the food system, so that’s squarely on the backs of farmers,” she told ABC News.

She said couldn’t find anyone to talk to online who understood her situation until she found a program run by Rosmann. The website said it lost funding a few years before but she called anyway.

“I was grasping at straws,” she said.

Rosmann picked up the phone.

Weingarten said she left farming in 2014 but still writes about agriculture. She spent five years researching and reporting a story about the suicide rate among farmers that was published in The Guardian last year.

Farmers in industries that have faced falling commodity prices and international trade disputes have faced additional economic pressure in recent years and farming experts and industry leaders say the uncertainty around the nearly $400 billion dollar Farm Bill adds additional stress for farmers and their families.

“Farmers were going through a very stressful winter weather-wise, a cold and tough winter, and on top of that we are into our fourth year of low milk prices, below the cost of production, and that has been creating a lot of stress,” Robert Wellington, a senior vice president of Agri-Mark Dairy Farmer cooperative, told ABC News on the phone Thursday.

PHOTO: Dairy cows on a Iowa farm are pictured in this undated stock photo.STOCK PHOTO/Getty Images
Dairy cows on a Iowa farm are pictured in this undated stock photo.

On average, Wellington estimated, small and medium dairy farmers have struggled through four years of milk prices that are 10 to 30 percent below the cost of production.

His group sent a letter to members in January forecasting yet another year of low milk prices. In the letter, they included phone numbers for people dealing with financial and emotional stress and a suicide hotline.

The farm bill has traditionally been bipartisan legislation to maintain subsidies, crop insurance programs, and livestock disaster programs but there has been dramatic debate and delays in this year’s bill due to proposals to cut funding from food stamp programs that make up a huge portion of the money allocated by the bill every five years.

This draft of this year’s farm bill in the House would have also provided funding for crisis hotlines and other programs to provide mental health help to farmers.

“Our farmers who feed the world are feeling the weight of the world on their shoulders,” one of the sponsors of that bipartisan provision Rep. Tom Emmer, R-Minn. said on the House floor ahead of the Farm Bill vote.

The House rejected the proposed bill.

In a 2016 report, the Centers for Disease Control found that about 84 out of every 100,000 people in the farming, fishing and forestry industries died by suicide in 2012, the most recent data available. The suicide rate for the general population was about 12 out of every 100,000 people that year, according to CDC data.

PHOTO: A farm in Iowa is pictured in this undated stock photo. STOCK PHOTO/Getty Images
A farm in Iowa is pictured in this undated stock photo.

That study included data from 17 states but did not include data from states like Iowa, Texas, or California where agriculture is a major part of the economy.

The report said that the high rate among farmers could be due to the potential to lose money in the business, as well as social isolation, lack of mental health services, or access to lethal means.

Rosmann is a psychologist and adjunct professor at the University of Iowa who specializes in behavioral health for farmers. He said farming is physically and emotionally stressful but that the current health system does not deal with all of the physical and mental risks for farmers.

“The bigger picture is that we have not attended to the behavioral well being of the agricultural population the way we have to the general population’s need for behavioral health,” Rosmann told ABC News.

He said that farmers have a unique psychology that drives them to work hard but that some factors are out of their control, like policy, weather, or commodity prices, resulting in a very stressful situation, adding that there has been increased economic stress on farmers in recent years and that they think they’re being economically marginalized.

Rosmann said farmers have a strong bond to their land and their farming operation and that on a psychological scale the stress of a life event like losing a family’s farm can be just as traumatic as losing a child.

“It’s almost always because of the loss of livelihood that people do such dramatic things as taking their lives,” he said.

Rosmann said he strongly supports a provision in the farm bill sponsored by Rep. Tom Emmer, R-Minn., to provide more money for states to provide mental health services like crisis hotlines for farmers and ranchers.

He said that some states offer resources like a crisis hotline but they need a stronger network of resources and a national center to help with the problem. In Minnesota the state employs one rural mental health counselor to help roughly 100,000 farmers, according to MinnPost.com.

Earlier in May the president of the National Farmers Union, Roger Johnson, wrote to Agriculture Secretary Sonny Perdue urging him to proactively address what he called “the farmer suicide crisis.”

PHOTO: The U.S. House of Representatives votes down a farm bill, 198-213, on May 18, 2018.C-SPAN
The U.S. House of Representatives votes down a farm bill, 198-213, on May 18, 2018.

“Farming is a high-stress occupation,” Johnson wrote in his letter. “Due to the prolonged downturn in the farm economy, many farmers are facing even greater stress. USDA’s national reach uniquely positions the Department to assist farmers and ranchers during times of crisis. We urge you to leverage your vision for collaboration across USDA and the entire federal government to develop a response to the farm suicide crisis.”

Sen. Tammy Baldwin, D-Wis., and Sen. Joni Ernst, R-Iowa, introduced a bipartisan bill on the issue of farmer suicide that would mandate more spending on mental health resources in rural areas. Rep. Tom Emmer, R-Minn., also introduced a bipartisan bill earlier this year to provide mental health services for farmers and ranchers.

Emmer’s bill was included in the version of the farm bill that was voted down in the House. The Senate’s farm bill has not yet been released.

The current farm bill is set to expire in September the most recent Farm Bill failed 198-213.

The National Suicide Prevention Lifeline provides 24/7 free, confidential support. The organization Farm Aid also offers a hotline for farmers in need of emergency help and a directory of local resources.

ART: When Is an Artist’s Mental Health Your Business?

What does an understanding of an artist’s life story bring to bear on their work? It’s an old question, and of course, one that doesn’t have an easy answer. Biographical information can enrich our understanding of a practice, but it can also narrow a viewer’s focus, forcing critical interpretations through a distorting lens.

We certainly don’t need to know everything about an artist to appreciate her output—whether she smoked or drank; slept with men, or women, or both; was ever arrested, or took LSD, or loved cats—but a hunger for such details is understandable. We are, after all, a curious species.
In the case of so-called outsider art, or art made by those distant from the “art world” (often with mental health complications), it’s an even thornier issue. Curators, and those charged with translating and presenting the story of art to a wider public, have difficult choices to make. What details are relevant, rather than just salacious? Where is the dividing line between honest explication and exploitation?
In conversations with several figures, various aspects of this dilemma come into focus. First, and perhaps most obvious, is that there is no blanket statement or best practice to follow when resolving art’s relationship to mental health. Each artist’s situation is unique, and should be approached as such. Secondly, this is still a dialogue that is in flux, and one in which the foundational vocabulary—including basic terms like “outsider”—are very much contested. The lack of a shared language is itself uncomfortable.

Breaking Down Boundaries

It’s no surprise that

or outsider art—we can perhaps agree to drop the quotation marks and “so-called” qualifiers—are still wrapped up in questions of mental health. Outsider art’s founding moments were with publications and collections that had their roots in psychiatric institutions, from Hans Prinzhorn’s 1920s volumes (including Artistry of the Mentally Ill) to the iconic

collection organized by the French painter

, now housed in Lausanne, Switzerland.

From the beginning, this was art that was both aesthetic and diagnostic. Its interest was partially as a record of psychic maladies, evidence of how differently wired brains might work. (These collections and archives simultaneously provided a fruitful cache of imagery that modern artists were happy to plunder.)
In the 21st century, we’ve started to slowly slough off categorical divisions, as institutions grow more comfortable showcasing outsider or folk art alongside that made by trained or professional artists. It’s a tendency closely associated with a curator like Massimiliano Gioni and key exhibitions that he oversaw or organized, including the 2013 Venice Biennale and 2016’s “The Keeper” at the New Museum.
Installation view of work by Hilma af Klint in “The Keeper” at New Museum, 2016. Photo by Maris Hutchinson / EPW Studio. Courtesy New Museum, New York.

Installation view of work by Hilma af Klint in “The Keeper” at New Museum, 2016. Photo by Maris Hutchinson / EPW Studio. Courtesy New Museum, New York.

There are still institutions, though, specifically dedicated to the appraisal and scholarship surrounding art made by extraordinary individuals in uncommon circumstances. But these institutions, focused on folk or outsider art, aren’t organizing exhibitions for didactic purposes; the goal isn’t to lamely exemplify, yet again, what schizophrenia or bipolar disorder looks like in visual terms. And so they’re in a difficult position: making a case for the artistic merit of the work itself, while also deciding what amount of background information is necessary to fully appreciate or comprehend it.

Context Is Key

To get a better handle on this dilemma, I met with Valérie Rousseau, the curator of 20th-century and contemporary art at the American Folk Art Museum in New York. At the time of my visit, two exhibitions were on view, showcasing the work of

and Eugen Gabritschevsky. Wall texts for both shows seem to perform a familiar elision, hinting at unavoidable biographical facts while refusing concrete details.

Carlo Zinelli, Untitled, San Giacomo Hospital, Verona, Italy 1960. Collection of Audrey B. Heckler. Photo by Visko Hatfield © Fondazione Culturale Carlo Zinelli. Courtesy of the American Folk Art Museum.

Carlo Zinelli, Untitled, San Giacomo Hospital, Verona, Italy 1960. Collection of Audrey B. Heckler. Photo by Visko Hatfield © Fondazione Culturale Carlo Zinelli. Courtesy of the American Folk Art Museum.

“We always caricature our fields by saying that we’re all about biographies, and the market builds mythologies around the artist,” she explains, sitting in a gallery full of Gabritschevsky’s fantastical gouache paintings. In the case of these dual exhibitions, Rousseau says, “I didn’t [include] anything specific about their mental illnesses, and everybody is asking me: ‘Oh, by the way, I know it’s not written on the walls—but can you tell me? What exactly was the diagnosis of Gabritschevsky?’ People are savvy and curious about this connection, and they want to know. But I question the validity of giving them the answer.”
Would a different sort of institution, she wonders, feel inclined to share wall-text information about an artist’s struggles with “addiction, hallucinations, social issues, or anorexia,” she wonders? “You have to be careful about what’s relevant. I’m driven by showing great artworks—fascinating artists, complex lives—and you do want to be verbal, and bring the visitors into something that is an exhibition experience.”
At the same time, she notes, what would providing diagnostic or clinical information really add to that exhibition experience? Audiences, weaned on Hollywood and pop-psychology, might fancy themselves experts—but what comprehension does the casual viewer actually have of bipolar disorder or schizophrenia?

Audiences might fancy themselves experts—but what comprehension does the casual viewer actually have of bipolar disorder or schizophrenia?

That’s not to say that curators should sweep mental health context under the carpet entirely. Rather, it’s one thread of a larger narrative.
In the case of Zinelli, who was a patient at the San Giacomo del Tomba hospital beginning in the middle of the last century, his physical surroundings—the jam-packed institution, the pioneering series of studio classes he took part in there—are important, but so are other things, Rousseau stresses. His upbringing on a farm, appreciation of nature, and fond feelings for a beloved dog are also salient details. Likewise, with Gabritschevsky, the artist’s background as an esteemed biologist provides arguably much more context than the knowledge of the mental health struggles that derailed his career.
“I found it interesting,” Rousseau says, “to show the full range of influences that an artist, a creator, could have had.”
Rousseau brings up another vital point: The way we conceive of mental health and categorize patients has evolved drastically over the centuries. The foundational definitions of sanity and normalcy are constantly shifting. “Timeframe is important,” she says. “If you were in a Swiss hospital in 1945, that’s different than being in one here in New York in 2013. Mental illness has changed, along with its diagnostics and treatments.”
Eugen Gabritschevsky, Untitled, Haar, Germany 1947. Collection Chave, Vence, France, no. 1647. Photo by Galerie Chave © Estate of Eugen Gabritschevsky. Courtesy of the American Folk Art Museum.

Eugen Gabritschevsky, Untitled, Haar, Germany 1947. Collection Chave, Vence, France, no. 1647. Photo by Galerie Chave © Estate of Eugen Gabritschevsky. Courtesy of the American Folk Art Museum.

Carlo Zinelli, Untitled, San Giacomo Hospital, Verona, Italy 1967. Collection of Gordon W. Bailey. Photo by Adam Reich © American Folk Art Museum © Fondazione Culturale Carlo Zinelli. Courtesy of the American Folk Art Museum.

Carlo Zinelli, Untitled, San Giacomo Hospital, Verona, Italy 1967. Collection of Gordon W. Bailey. Photo by Adam Reich © American Folk Art Museum © Fondazione Culturale Carlo Zinelli. Courtesy of the American Folk Art Museum.

As a result, a curator who decides to play armchair psychiatrist, at great historical remove, would run the risk of being both inaccurate and unethical.
“I hope my shows refuse the pathologizing of the artist,” says Gioni, whose recent curatorial work has been instrumental in mingling mainstream and outsider practices. In his mind, part of our thrall to the latter has to do with “a certain romanticism, a desire for sincerity” that is lacking in the larger art world.
Take

, a recently lauded artist from the early 20th century who was influenced by spiritualist movements of the times. Catalog copy on the artist casually suggests that she had “visions”—but what does that even mean?

“These objects and stories help us understand that the rules and notions of conformity and eccentricity are historical, and relative,” Gioni says. “Af Klint had visions or hallucinations—I don’t know if they were pathological or not, but we have enough history under our belts to understand that the definition of pathology is relative, and historical, and cultural. And to be reminded of that might help us also have a healthier relationship with our fellow humans.”

Risky Choices

Despite the fact that boundaries between these types of artmaking are slowly dissolving, prejudices and anxieties remain—tied to both artistic legacies and markets.
Rousseau points to the case of

, the subject of the Antigua and Barbuda Pavilion at this year’s Venice Biennale. Walter is an artist whose work I encountered there, and later wrote about, focusing on the more colorful and anecdotal elements of his backstory (and doing my own part to dance around mental health issues by including the problematic word “visionary” in my headline).

Installation view of “Frank Walter: The Last Universal Man 1926-2009” on view at the Pavilion of Antigua and Barbuda at the Venice Biennale, 2017.

Installation view of “Frank Walter: The Last Universal Man 1926-2009” on view at the Pavilion of Antigua and Barbuda at the Venice Biennale, 2017.

The Pavilion, and its hefty accompanying catalogue, is a fascinating case study regarding the choices curators can make in dealing with complicated artists. In Rousseau’s reckoning, the Pavilion organizers “really dig into all the possible biographical facts they could—they don’t have an art-historical approach for that publication, which surprised me.” At the same time, she says, “I think the tone was right. I think it was a point of view that was risky.”
But what’s next for an artist like Walter, after the Biennale? Will it be the Serpentine or the American Folk Art Museum? Rousseau somewhat wistfully notes that, once an artist’s work has been received in a particularly high-profile manner, it’s difficult to change course.
“It’s impossible or often misperceived to send them back, to associate them again to a niche, specialized presentation like in our museum,” she says. “It’s [as if]: ‘Oh, no, he doesn’t belong anymore in this category.’ I’ve seen that so many times. It’s interesting how this whole process of recognition in the art world is more like an irreversible path, from one step to another. And I think outsider or self-taught artists do not escape that program.”
In other words, the biographical drama of Walter’s life might act as a wedge to generate (justifiable) interest and intrigue. Meanwhile, the paintings themselves—divorced from those details—are indeed fascinating and adept. If we fast-forward three decades, perhaps Walter’s oeuvre might be assimilated into a larger art-historical narrative that doesn’t dwell too much on his personal eccentricities or mental health. That might all depend on the steps his estate takes, institutionally, as well as the decisions it makes in terms of how his work is packaged, exhibited, and contextualized.
It’s a process that Rousseau and Gioni both allude to, in the case of canonized artists from

to

,

, or even

: At first, the details of the individual life are tantalizing. But after we’re generally familiar with those details, we can somehow move on and appreciate the art on its own terms.

The Challenge of Living Artists

As if this conversation wasn’t complex enough, there’s another wrinkle: the considerations at play with living artists who may have mental health issues or, more specifically, developmental disabilities. Perhaps no New Yorker has been more involved in promoting work from such artists than Matthew Higgs, the director of White Columns, who has created a thriving network between his non-profit institutions and centers around the country, like Creative Growth in Oakland and and Visionaries + Voices in Cincinnati. For these practitioners, he stresses, one thing swiftly trumps the viewer’s curiosity about an artist’s background: the right to privacy.
“Certainly, with historical work, it now seems pretty accepted that the biographical narrative is part of the work of self-taught, outsider, and folk artists,” Higgs says. “But it’s much more complicated when showing the work of living artists with disabilities.”
Here, the balance is twofold: Not encroaching on an artist’s privacy rights—especially in the case of those who are “not in the position to articulate” them directly—while also highlighting the positive work being done by non-profit organizations. “When you go to the desk at White Columns,” Higgs says, “the press text will explain that this is an artist who is affiliated with a center that supports artists with disabilities. But we wouldn’t then go beyond that into establishing a narrative around their medical circumstances or mental health issues.”

What Do We Talk about When We Talk about Mental Health?

Eccentric. Visionary. Prophetic. It often seems like institutions, galleries, and the media have developed a series of lightly coded terminology with which to tip-toe around issues that can’t, or shouldn’t, be fully unpacked in the case of a wall text or short catalog essay.
Is the vocabulary we have, I wondered, lagging behind the rest of the field itself? If so, Gioni sees a silver lining, that “these artists, artworks, and objects are still putting our system in crisis to such an extent that there’s not yet a word for it. That’s the hopeful aspect.”

It often seems like there is a lightly coded terminology used to tip-toe around issues that can’t, or shouldn’t, be fully unpacked in the case of a wall text or short catalog essay.

Andrew Edlin, who runs an eponymous New York gallery and also helms the Outsider Art Fair, is less optimistic when I bring up the handful of phrases that seem to resurface so often within the field. “I don’t particularly like any of these words,” he says. “Visionary can be appropriate at times, but I tend to think of

. Eccentric seems like a euphemism to describe someone who’s a bit weird. There’s that well-known line: The difference between someone who is eccentric and crazy is how much money they have!”

And perhaps, he suggests, the repetition of rote or cliched phrases is simply the byproduct of a certain laziness. “I don’t think we are lacking in vocabulary at all,” Edlin says. “If a writer sticks to the idiosyncratic qualities of each artist, there shouldn’t be any problem in finding the right words to accurately talk about his or her work.”

What Difference Does It Make?

We generally want to know more about all the artists we love—whether or not those facts actually enhance our understanding of the work they make. We crave gossip and insider dirt, or at least a broader picture of a life. “That’s one of the reasons why the Calvin Tomkins [profiles] in the New Yorker are so fascinating,” Higgs says. “It’s one of the rare opportunities to get a glimpse into an artist’s background, what their parents did, how they grew up, what their circumstances are—all of which is useful information.”
But with outsider artists, it’s important not to indulge in sensationalism under the guise of scholarship. Rousseau does admit that, in certain cases, a deeper understanding of someone’s mental health or related background can be fruitful. She points to

, an artist who has Asperger’s Syndrome. “Because of his love for inventories and numbers, it’s not an un-useful fact to know,” she says. “He also has a photographic memory. It helps you understand a cause and effect. But that’s not often the case.”

In other instances, seeing beyond biographies and categorical distinctions seems to be a way out of the morass. “I’m led to believe that there is no difference between the ‘eccentric’ artist and the professional artist, when they’re dealing with matter and materials,” Gioni says. “In the moment they sit down to make, I ultimately don’t think there’s any difference in the knowledge they have of their hands meeting the material.”
Susanne Zander of Cologne-based Delmes & Zander echoes that sentiment. Her gallery represents the likes of

and

. “Essentially, we are not that interested in the mental history of the artist,” she says. “The selection of the artists in our program is based mainly on the quality of their work, irrespective of whether or not it was produced specifically for the art market. It’s important for us that the quality is on a par with established art production, and that the artists are judged not for any of their psychological problems—but rather for the quality, individuality, and autonomy of their artistic work.”

As for the basic phrase “outsider art,” Zander feels that it has lost its usefulness. “We feel that the term ‘outsider’ focuses too strongly on the personal situation of the artist and misleads the public, who neglect the actual work itself. We see each work not in reference to a classification or terminology, but for what it really is.”
“The most respectful way to talk about an artist with any condition or pathologies is to stick to the facts,” Edlin says. “If there are things that are unknown—but evidence that suggests certain possibilities—than that’s exactly how it should be put across. Focus on the work, and use the biographical info to help interpret the artmaking process.”
At the same time, Edlin recognizes that an exceptional background can add another dimension to the appreciation of the work. “One of the most interesting and exciting results of accurately explaining the details of the lives of outsider artists—or any artists who have overcome incredibly challenging circumstances—is that their art becomes even more transcendent and uplifting for the viewer,” he continues. “It’s important to remember that figures like

,

, and

were some of the most downtrodden artists we’ve ever known. Genius resides in some of the most unlikely of places.”

When Ignorance Is Bliss

Disko Girls (Anonymous), untitled, 1970s-1980s (archive-# 1). Courtesy Delmes & Zander, Cologne.

Disko Girls (Anonymous), untitled, 1970s-1980s (archive-# 1). Courtesy Delmes & Zander, Cologne.

Disko Girls (Anonymous), untitled, 1970s-1980s (archive-# 32). Courtesy Delmes & Zander, Cologne.

Disko Girls (Anonymous), untitled, 1970s-1980s (archive-# 32). Courtesy Delmes & Zander, Cologne.

“Despite thorough research it has not been possible to identify the artist behind these drawings, found in Germany in the late 1990s,” read the press statement for a group of 50 stunningly idiosyncratic colored-pencil drawings that Delmes & Zander showed at this year’s Independent art fair in New York. Based on its content, the series had been dubbed “Disko Girls,” a title that was “attributed to the work out of respect for the unnamed and unknown author.”
Here, finally, is a case study that happily short-circuits everything we’ve just discussed. For the moment, it’s possible to stand in front of these strange portraits—titillating, disturbing, campy, playful, raw—with absolutely zero baggage.
Perhaps art-historical sleuthing will turn up the artist’s identity in the next few years. Perhaps we’ll find out that he was an orthodontist in Cologne who drew on the weekends, or that she was a university student who copied designs from advertisements and pornographic magazines. Biography will become a magnifying glass used to zoom in on what was once peculiar, elusive, and magnificently foreign about the artist. With any luck, that day will never come.
By Scott Indrisek

Surging Demand for Mental Health Care Jams College Services

Students may wait weeks for a basic consultation; sometimes even longer to see a psychiatrist
-Jacob Griffin,Executive Director of Student Mental Health Policy Alliance

Colleges across the country are failing to keep up with a troubling spike in demand for mental health care — leaving students stuck on waiting lists for weeks, unable to get help.

STAT surveyed dozens of universities about their mental health services. From major public institutions to small elite colleges, a striking pattern emerged: Students often have to wait weeks just for an initial intake exam to review their symptoms. The wait to see a psychiatrist who can prescribe or adjust medication — often a part-time employee — may be longer still.

Students on many campuses are so frustrated that they launched a petition last month demanding expanded services. They plan to send it to 20 top universities, including Harvard, Princeton, Yale, MIT, and Columbia, where seven students have died this school year from suicide and suspected drug overdose.

“Students are turned away every day from receiving the treatment they need, and multiple suicide attempts and deaths go virtually ignored each semester,” the petition reads. More than 700 people have signed; many have left comments about their personal experiences trying to get counseling at college. “I’m signing because if a kid in crisis needs help they should not have to wait,” one wrote.

STAT requested information from 98 campuses across the country and received answers from 50 of those schools. Among the findings:

At Northwestern University, it can take up to three weeks to get a counseling appointment. At Washington University in St. Louis, the wait time runs nearly 13 days, on average, in the fall semester.

At the University of Washington in Seattle, delays in getting care are so routine, the wait time is posted online; it’s consistently hovered between two and three weeks in recent months. In Florida, where educators are pressing the state legislature for millions in new funding to hire counselors, the wait times at University of Florida campuses can stretch two weeks.

Smaller schools aren’t exempt, either: At Carleton College, a liberal arts campus in Northfield, Minn., the wait list can stretch up to 10 days.

A few weeks’ wait may not seem like much. After all, it often takes that long, or longer, for adults to land a medical appointment with a specialist. But such wait times can be brutal for college students — who may be away from home for the first time, without a support network, and up against more academic and peer pressure than ever before. Every class, every meal, every party can become a hurdle for students struggling with eating disorders, depression, and other issues.

Many counseling centers say that they are often overwhelmed during the most stressful times for students, such as midterms and finals. Creighton University in Omaha, Neb., for example, reports a wait time of up to a month during busy periods.

In most instances, STAT’s examination found, students who say that they are suicidal are seen at once, and suicide hotlines are available for after-hours emergencies. But some students are uncomfortable acknowledging an impulse to harm themselves, and thus get pushed to the end of the line, along with undergrads struggling with concerns ranging from acute anxiety to gender identity issues.

Campus counselors are acutely aware that they’re leaving students stranded but say they don’t have the resources to do better.

“You’re making sure people are safe in the moment,” said Ben Locke, who runs a national college counseling network and directs counseling services at Pennsylvania State University. “But you’re not treating the depression or the panic attacks or the eating disorders.”

‘I NEEDED TO SEE SOMEONE’

Constance Rodenbarger, now in her third year at Indiana University, first sought help at the counseling center in her second semester, as she struggled to deal with an abusive relationship on top of long-term depression. The next appointment was at least two weeks away.

“I was just looking at that date on the calendar and thinking, ‘If I can just make it one more day,’ but then it became just one more hour, and then one more minute,” she said.

“I just couldn’t hang on.”

The day before her appointment, on Nov. 17, 2014, she tried to kill herself.

Her roommate found her, and Rodenbarger was rushed to the hospital. She called the counseling center from the hospital to say she wouldn’t be able to make it in the next day.

“When I called that day and said, ‘I need to see someone,’ I needed to see someone,” she said.

Indiana University now says it connects with all students who seek counseling within two days. But that connection can involve simply setting up an appointment — for up to three weeks away.

“We, like centers across the country, are working on expanding our staff,” said Nancy Stockton, the director of Indiana University’s counseling center. “We certainly need more clinicians.”

Indiana University and several other large schools said they employ one counselor for roughly every 1,500 undergraduates. That’s at the high end of the range recommended by national experts. The numbers reported in an annual national survey are even more stark: In 2015, large campuses reported an average of one licensed mental health provider per 3,500 students.

When students do get in to campus counseling centers, most see therapists, social workers, or perhaps psychologists.

Just 6 in 10 college counseling centers have a psychiatrist available, even part-time, to prescribe or adjust medications, according to the annual survey, conducted by the Association for University and College Counseling Center Directors. That’s a serious mismatch, given that about one-quarter of college students who seek mental health services take psychotropic medications.

There are other hurdles, too. While many schools tout free counseling, they often cap that benefit. Students at Brown University, for instance, get seven free sessions a year. At Indiana University, students get just two free sessions and then pay $30 per visit.

And it can be hard for students to develop a consistent relationship with a therapist when so many college mental health providers work limited hours. Wellesley College, for example, has a counseling staff which includes six therapists — but three of them are only on campus part-time.

While dozens of colleges provided STAT with detailed information about their mental health resources, the public relations staff at others, including Georgetown University, Dartmouth College, and Grinnell College, refused to provide information after repeated requests.

Others, such as Harvard and Yale, declined to provide specific staffing information. In some cases, such as with the US Merchant Marine Academy, media relations staff expressed discomfort about being compared to other colleges.

Columbia University told STAT it employs the equivalent of 41 full-time counselors for just over 6,000 students, which would be an enviable staffing level, far better than most other schools its size. Columbia said its wait time varies, but did not provide a specific range. All enrollment numbers come from U.S. News and World Report.

A SPIKE IN CRISIS CASES

Demand for counseling on college campuses has been rising steadily for several years.

And the latest data, released in January, show a recent spike in cases of students in acute crisis.

One in three students who sought counseling last year said they’d seriously considered suicide at some point in their lives, according to a report out last month from the Center for Collegiate Mental Health. That’s up from fewer than 1 in 4 students in 2010.

And those are just the students who admit they’re in crisis. Untold others don’t know how to respond when an employee at the counseling center asks if it’s an emergency. They may downplay their situation, telling themselves others are in more dire condition or it must not be a true crisis if they have the presence of mind to ask for help.

That’s what happened to Adrienne Baer during the fall of 2015, in her junior year at the University of Maryland. Both her grandparents had recently died. So had a high school friend.

“It was a lot to wrap my head around,” she said. With a push from friends, she decided to call the counseling center. “I didn’t exactly have an education on what their resources were, but I got one,” Baer said.

Baer said she was asked on the phone whether she was experiencing an emergency. She didn’t know how to answer that: No one gave her a definition. So she said no and was shunted to the end of the waiting list. It would be two weeks before she could see a counselor.

She dashed off an angry email to the counseling center the minute she hung up the phone:

“I am currently struggling with the issues I wanted to discuss with a therapist or counselor, but even I don’t know how I’ll be in 24 hours, let alone 2 weeks.…

I don’t know if all that constitutes an emergency or if I need to have a mental breakdown to be seen prior to a two week wait but I am seriously disappointed in the lack of availability in mental health resources.”

That got their attention. She was given a quick appointment for an initial assessment. But for continuing care, Baer was put back on the waiting list. It would be five weeks before she could see a psychiatrist who could prescribe medication.

“I had to wait. There was nothing I could do,” said Baer, now a senior. “It was just a roller coaster that I couldn’t control.”

Sharon Kirkland-Gordon, director of the University of Maryland’s counseling center, said she knows her staff can’t keep up with demand, though she said they’re “working overtime to meet the needs of students.”

Requests for appointments shot up 16 percent last year alone, she said.

Nationally, about six in 10 undergrads seeking counseling are women, and 5 percent are international students. There are roughly an equal numberof freshman, sophomores, juniors, and seniors.

Kirkland-Gordon has started to bring on part-time seasonal staff to help handle the workload. Many campuses also use therapists who are still in training work one-on-one with students, as long as they report to licensed counselors.

“If we had a magic wand, I think you’d probably hear the same thing from all of us counseling directors,” said Kirkland-Gordon. Their wish list is simple: more resources.

No one is entirely sure why student demand for mental health services is rising; factors may include increased pressure from parents or peers on social media, or a difficult job market. Another possible reason: increased awareness about the risk of mental health conditions.

In the past decade, the federal government has given out tens of millions in grants to suicide prevention programs that raised awareness of risk factors. A generation of students trained by such programs is now in college — and seeking help when they feel warning signs. But not every college got a bump in funding to meet the surge in demand.

“If you want a perfect recipe to generate reduced availability of treatment, that would be it,” said Locke, of Penn State, who also serves as director of the Center for Collegiate Mental Health, a national network.

Locke notes that college health centers would never require a student with strep throat to wait two weeks for an appointment. Yet that’s what’s happening to many students with anxiety, depression, and other serious mental health concerns. “It puts the student’s academic career, and potentially their life, at risk,” he said.

As for Baer, she said she made it through that stressful semester by leaning on friends at school and family back in Pennsylvania. She wonders what would’ve happened to an international student or to a freshman without a reliable support network.

“I do feel like I fell through the cracks,” she said, “but I feel like I fell onto a safety net that other people might not have.”

A COLLEGE PRESIDENT SOUNDS THE ALARM

In an era when colleges are ranked by the number of their professors and the quality of their food — or whether their gyms house rock-climbing walls — it can be tough for the counseling centers to make a case for more resources.

Some turn to quick fixes, touting “stress-busting” programs like bringing in puppies for students to pet during midterms or handing out free cookies in the library during finals.

Others are making a concerted effort to respond to the surging demand.

The wait times at Ohio State University were so alarming to Dr. Michael Drake — a physician who stepped into the president’s office in 2014 — that he hired more than a dozen new counselors. That pushed the school’s ratio down to one provider for roughly every 1,100 undergraduates.

“We were doing it to really smooth the pathway of success for students,” Drake said. National data suggest the additional providers will help; 7 in 10 students who seek counseling say the mental health care improved their academic performance.

The University of California system moved to update counseling services in 2014, as wait lists grew and students with acute needs sought care. It took another year to get a dedicated funding stream to hire more counselors, in the form of increased student fees.

“Things start to back up like a traffic jam,” said Gary Dunn, director of counseling and psychological services for the University of California, Santa Cruz. “A lot can happen in four or five weeks during a quarter in college. It really wasn’t OK to have that delay in place.”

Students who have lived through mental health crises welcome more staff. But they also urge better training so that everyone on campus knows to treat mental health concerns as seriously, and with as much empathy, as a physical injury.

Nick, who asked that his last name not be used, was diagnosed with depression before college and had a difficult transition to his freshman year at Ithaca College in upstate New York. “I had no idea how to cope with all of it and I floundered a bit,” he said in an interview.

He sought help early on — during orientation — because he knew he’d likely need it. But he said he was bounced between two counselors and had difficulty getting appointments that fit into his schedule. In the end, he had to pay for a private mental health specialist off campus.

Ithaca did not respond to requests for information on its mental health services, saying its counseling center staff was busy. At the time he sought care, Nick said there were just two counselors for the school’s 7,000 students.

“I was so badly handled. Not by any fault of their own, they were just woefully underprepared,” he said.

This year, by contrast, he had to take time off for a surgery. Getting help with a physical injury was a breeze, he said.

“The administration and professors have been much more understanding and willing to help when it’s something tangible and physical,” he said, “when the doctors can say, ‘Here’s what’s wrong with you and here’s how you can fix it.’”

DRAWING LESSONS FROM TRAUMA

Rodenbarger, the Indiana University student, is still feeling the echoes of her struggles to get mental health help on campus. Her suicide attempt cost her both her job and her off-campus apartment. The medication she was put on cost her a pilot’s license.

But she is recovering — with the help of a mental health provider off campus. She’s easing off the medication. She’s on track to graduate in the summer of 2018 with two degrees, a fine arts degree in printmaking and another in astronautics.

She’s also excited to have seen the school expand its walk-in services for students in need of urgent mental health care. It’s a step forward — and she wants to see more like it.

“Had I gotten help when I reached out for it,” she said, “it would never have gotten to the level that it did.”

College Faculty: Are You Being Rigorous or Just Intolerant?

I always took pride in being “a hard teacher.” I was rigorous but fair; my students

…didn’t need to be geniuses to succeed, they just needed to be “good students.” A good student attends class, sits attentively, participates in discussions, and meet deadlines. But after more than a decade of teaching, I realized that my idea of the good student was standing in the way of good teaching.

My awakening began one day in my required composition course, when three students sat in class wearing ear buds. Trying to stifle my annoyance, I grumbled to myself: “How could they think this was appropriate classroom behavior?” A week later, another student got up and walked out of class in the middle of a writing exercise. One of her peers later told me she had deemed the work “unproductive.” Hearing that I felt the familiar heat of anger: “Why come to college if you don’t want to learn?”

  • I’ve learned to push past those initial flashes of frustration, thanks to fresh data on the mental health of college students and to recent research on teaching. One concept in particular that has changed my interactions with students is the “ladder of inference,” presented in Peter Senge’s The Fifth Discipline Fieldbook: Strategies and Tools for Building a Learning Organization. The ladder of inference reveals the steps we take to create our beliefs about the world. The first five rungs of the ladder are:
  • (1) observing a person’s behavior; (2) selecting data from what we observe; (3) interpreting that data through the lens of previous experience; (4) making assumptions; and (5) drawing conclusions about that person.

We tend to run up that ladder so fast that we unconsciously draw conclusions based on scant data. To make matters worse, once we’ve drawn our conclusions, we only entertain data that confirm them. If a student is late, we might assume he doesn’t respect our time, and every time he is late, our judgment is confirmed. But if we gather more data, we might discover that the latecomer has OCD and struggles to get out of the house. Of course, the student could just be inconsiderate or a slacker, but we don’t know unless we seek out more information.

I decided to take the information-seeking route. “So, tell me about the ear buds,” I asked one day, and the story of this 18-year-old’s struggles emerged: He had been in multiple car accidents; he is on pain medication but has trouble sleeping and staying focused; the background noise of the music helps him to concentrate. People with ADHD confirm this: They need something in the background to crystallize their attention on the foreground.

As for the student who walked out midclass, I invited her to my office where I learned that she had left because of a panic attack. After a short conversation, I was satisfied that she had the necessary mental-health support, but when I asked about her other courses, she told me she was at risk of failing due to excessive absences. “Easy solution,” I said. “Communicate with these professors.”

But that was not an easy solution. The last time she had divulged to an instructor that she suffered from anxiety, the instructor’s response was, “Yes, we all have anxiety.” In the student’s words, this teacher “shut me down.”

According to data from the 2013 National College Health Assessment, nearly half of 123,078 respondents from 53 colleges and universities across the country felt overwhelming anxiety over the previous year and a third had problems functioning because of depression.

‘Thou shalt not’ directives do not work, and when we fill our classrooms with them, we are not treating students as adults. Still, we hold up the syllabus on the first day of class

like a crucifix to ward off the ‘students from hell.’

While some students arrive with diagnoses and legal accommodations, many begin experiencing mental-health problems during college; the average age of onset of depression and anxiety is 18 to 24. Whether these conditions are permanent or temporary, they are usually accompanied by learning challenges, such as impaired memory and decreased ability to focus and make connections, inhibited curiosity, diminished creativity, and limited flexibility.

To be clear, I have known students with psychiatric conditions who perform the role of the good student, but for others, conforming to that script can be impossible at times.

Despite our students’ struggles, many of us to continue to teach the way we were taught. We continue to lecture and produce syllabi that have the threatening tone of the Ten Commandments: Thou shalt not eat in class, thou shalt not be late, thou shalt not use cellphones. These rigid documents reflect good intentions. We want our students to learn how to behave professionally so that they succeed in the “real world.”

But there are a few problems with that approach: It doesn’t work. Banning cellphones, for example, doesn’t stop students from using them. And in the real world, successful people sit in meetings texting and eating food, or are routinely late. When we fill our classrooms with “don’t” directives, we are not treating students as adults.

Still, we hold up the syllabus on the first day of class like a crucifix to ward off the “students from hell.” In his classic The Courage to Teach: Exploring the Inner Landscape of a Teacher’s Life, Parker Palmer draws the veil from the “student from hell” to reveal a student “full of fear.” According to Palmer, teachers are also driven by fear: “We collaborate with the structures of separation because they promise to protect us against one of the deepest fears at the heart of being human — the fear of having a live encounter with alien ‘otherness,’ whether the other is a student, a colleague, a subject, or a self-dissenting voice within.”

That resonates with me. As a writing instructor I rarely lecture, but I do have a tendency to choreograph every step of class, leaving little space for “live encounters.” If, as Palmer suggests, we are protecting ourselves, it makes sense that our syllabi are stringent. It also makes sense that we are more likely to rely on stereotypes of students rather than seek more data about them — because when we gather more information, what we find can be unsettling. They are not whom we envisioned. Rather thanknowledge-thirsty, carefree adolescents, our students are complex people with complicated lives.

It is tempting to say, “We should leave mental health to the experts.” I have said that myself. But now I recognize that asking students to leave their mental-health issues at the door is not only unreasonable, it’s unjust. It’s akin to asking students to leave their race or gender at the door. Of course, we should direct students to the experts when they are in crisis, but there’s much we can do without positioning ourselves as therapists or saviors.

The work of promoting mental health shouldn’t always be outsourced to the counseling center; it must be part of the fabric of our institutions, including our classrooms. Too often when faculty discuss students with mental-health conditions, the conversation ends in the same place: Either we establish rigorous standards or we coddle students. But that is a false binary.

 

The student who left in the middle of my class told me she felt comfortable talking about her personal struggles with me because in my class we had read an article about mental health. She is smart and hardworking, but she was at risk of failing due to excessive absences. During our 15-minute conference, I gave her my computer to email her other professors and spell out the problem. She needed a nudge to trust that this was her best shot at succeeding at college.

  • Admittedly this is harder to do in a large-sized class. But even in such classes, we can acknowledge mental health by being open to “live encounters,” by ditching rules that don’t enhance learning, by responding to students with flexibility and caring, and by being informed about how mental illness affects learning and behavior.

    Outside of the classroom, even something as simple as organizing a panel where faculty and staff members discuss how they manage their psychiatric conditions can be helpful. Such an event had a profound effect on one of my students who had been diagnosed with depression in high school. Hearing the stories of these successful professors and staffers in her first semester, she said, made her think, “I can do this. I’m going to make it.”

    Reconsidering my notion of “the good student” has improved my pedagogy and my well-being. I spend more time getting to know my students and less time being frustrated. My courses are rigorous, and I have created a space for young adults with complicated lives. In this space, a diversity of perspectives and experiences allows us to learn together and from one another.

    Author, Catherine Savini is an associate professor of English.

Higher Education Disability Law Year in Review:Court Decisions, Settlements, and Guidance

For information only.
Public Access File. 

Paul D. Grossman, J.D.[2]

OCR Chief Regional Attorney, S.F., Retired

Adjunct Professor of Disability Law, Hastings College of Law, Univ. of Cal.

AHEAD Board Member; Expert Panel Member, Disability Rights Advocates

 

Edited with Ruth Colker, J.D.

 Distinguished University Professor

Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, OSU

ACLU Board Member

Presented with Jo Anne Simon, J.D.

Adjunct Professor, Fordham University School of Law

New York State Assembly Member, District 52

Founding Member and General Counsel of AHEAD

Documentation and Definition of Disability

 

In 2014 DOJ issued an NPRM: DEPARTMENT OF JUSTICE, Office of the Attorney General, 28 CFR Parts 35 and 36, CRT Docket No. 124; AG Order No., RIN 1190–AA59, proposed application of ADAA to individuals with learning disabilities and AD/HD under titles II & III.  Dept. of Justice, Amendment of Americans with Disabilities Act title II and Title III Regulations to Implement ADA Amendments Act of 2008 (Jan. 22, 2014), available at http://www.ada.gov/ nprm_adaaa/ nprm_adaaa.htm.   The regulation in question has not been issued and it is not on the published regulation calendar for issuance in the near future.

 

Rawdin v. American Board of Pediatrics, 985 F. Supp. 2d 636, 2013 U.S. Dist. LEXIS 159458, 2013 WL 5948074 (E.D. Pa. 2013)

The Summer Reading List for last year reported that the District court had concluded that an acquired learning disability following treatment for brain cancer is not a disability, when the individual is academically and professionally successful, and has both IQ and performance scores higher than the average individual in the general population.

Subsequent to the last Reading List, the Third Circuit affirmed the judgment of the district court in favor of the ABP.  Rawdin v. American Bd. of Pediatrics, 582 Fed. Appx. 114, 2014 U.S. App. LEXIS 17002 (3d Cir. Pa. 2014).  However, the Circuit Court assumed without deciding that Dr. Rawdin was an individual with a disability.  Consequently, the Circuit Court’s opinion focused on whether Dr. Rawdin was entitled to accommodations that he was denied either on the examination or in an alternative to the examination.  This issue is discussed below.

Insert Colker and Grossman, Higher Education at p. 46 as first NOTE.

 

Consent Decree, Department of Fair Employment and Housing (DFEH) and the United States v. LSAC, No. CV 12-1830-EMC (N.D. Cal. May 20, 2014), available at http://www.ada.gov/defh_v_lsac/lsac_consentdecree.htm.  [Lexis cite is as follows: but it is not to the pertinent documents. Dep’t of Fair Empl. & Hous. v. Law Sch. Admission Counsel, 2013 U.S. Dist. LEXIS 84205 (N.D. Cal. June 14, 2013)]

Last year’s Reading List reported that on May 20, the parties to this matter, the LSAC, the California Department of Fair Employment and Housing, and the United States entered into a court-approved consent decree providing an end to flagging LSAT score reports of individuals who received extended time on the test, to establish a compensation fund of $7.73 million for the 6000 individuals (nation-wide) who applied for accommodations in the past five years, to “streamline” the process for evaluating accommodation requests including automatically approving accommodations that an applicant can show previously had been received on standardized tests related to post-secondary admissions, and implementing the DOJ title III “best ensure” accommodation standard for individuals with sensory, manual, or speaking skills. For persons who are required to submit documentation (for example, persons who were not previously accommodated on standardized exams), documentation developed within the past five years will be considered reliable.  A claims administrator will administer the compensation fund.

The federal court approved the consent decree on May 29, 2014.  Pursuant to the decree, a panel of five experts was assembled to develop “best practices” guidance for LSAC to follow prospectively, unless any of the parties objected to recommendations of the panel and convinced the court that the recommendations were inconsistent with or outside the scope of the decree.

The decree assigned the panel 10 specific questions to answer.   On January 31, 2015, the panel filed its report.  See http://www.justice.gov/opa/pr/2014/May/14-crt-536.html (last viewed on May 22, 2014). Included in the panel’s recommendation are less burdensome documentation requirements and review practices that are more likely to result in accommodation eligibility; a greater number of documentation reviewers with a wider range of knowledge; training for all reviewers to ensure consistency; and a quicker, more responsive appeal process.

On February 26, the LSAC filed a response to the panel’s recommendations, challenging most of them.  On July 31st, the matter will be heard before the district court magistrate judge that was involved with the entry of the consent decree.  A ruling is supposed to result expeditiously.

Insert Colker and Grossman, Higher Education at p. 57 before box and p. 204 before the first NOTE.

 

Academic Deference and Qualification

Walsh v. University of Pittsburgh,   Civil Action No. 13-00189, (W.D. Penn. 2015), 2015 U.S. Dist. LEXIS 2563, 2015 WL 128104 http://law.justia.com/cases/federal/district-courts/pennsylvania/pawdce/2:2013cv00189/208081/63 (last viewed, June 22, 2015).

Although only a district court opinion, this decision is helpful for laying out the analytical structure for several types of allegations.

 

Amy Walsh is an individual with a BS in nursing. She enrolled in a Masters degree program in anesthesia.  While in the program, she performed well in the classroom but encountered difficulties in the clinical rotation stages.   The student alleged that in her first rotation it became necessary to tell one of her instructors that breast cancer surgery had resulted in weakness, reduced range of motion, and stiffness in one of her arms. According to Walsh, her instructors subsequently began stating that she would be unable to perform essential skills because of her limitations. Her complaints about this treatment got little response. At the second site for rotation, Walsh was placed on a performance improvement plan (PIP). The student alleged that this PIP was required because staff from the first rotation site had told the second site that she was incompetent. She complained again about her treatment without receiving an effective response. In the third rotation, on the same day, Walsh made two “dangerous or potentially dangerous,” errors in administering medication. Following three levels of due process review, she was dismissed from the anesthesia program.

Subsequent to her dismissal the student sued the University.  The Federal District court considered three claims: disparate treatment and a hostile environment on the basis of disability under Section 504 of the Rehabilitation Act and Title II of the ADA, as well as breach of contract.

The University of Pittsburgh did not contest that the student was an individual with a disability but moved for summary judgment on the grounds that she was not qualified to complete the program.  Of interest is the distinction drawn by the court with regard to the question of academic deference.  Much deference was accorded on the breach of contract claim, little on the disability discrimination claims.

With regard to the breach of contract claim, the court articulated the question before it as, “[Whether] the decision to dismiss [the student] was rational and had a reasonable basis in fact.”  The court stated:

[W]hen judges are asked to review the substance of a genuinely academic decision … they should show great respect for the faculty’s professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.

Applying this standard to the plaintiff’s contract claims, the court granted the University’s motion for summary judgment.

In analyzing the disability discrimination claim, the court declined the University of Pittsburgh’s invitation to apply a similar degree of deference.

While the purely academic decisions of universities deserve deference in a due process context, if such deference were extended to situations requiring a separate discrimination analysis, universities could insulate even actions taken for discriminatory reasons by claiming that the student was not otherwise academically qualified. Instead, when a student claims she was discriminated against, courts must independently evaluate whether the student has shown she is otherwise qualified to participate in the academic program.

With regard to the disparate treatment claim, the court followed the same analytical test as would be applied in a race discrimination claim.   Although it concluded that the student had made out a prima facie discrimination, based on comparative treatment information, the high level of due process which she had received, and the potential seriousness of her errors, the court granted the University’s motion for summary judgment, concluding that the student had failed to establish that her dismissal was a pretext for disability discrimination.

It is rare to see a student litigate a claim that he or she has been subject to a hostile environment on the basis of disability.  This case is an exception.   As to this allegation, the court followed the same analytical test as would be applied to a sex discrimination claim under Title IX of the Education Amendment of 1972.  Based on this analysis, the court granted the University’s motion for summary judgment, concluding that the Walsh had failed to establish that her treatment during rotation was sufficiently severe or pervasive to constitute a hostile environment.

At best, [the student] has described a series of isolated comments relative to performance that took place intermittently over a period of several months in the Program that neither threatened nor humiliated Walsh nor prevented her from participating in the Program. This is inadequate to support a jury’s reasonable finding that Walsh endured sufficiently severe harassment.

Insert Colker and Grossman, Higher Education at p.210 before NOTE 3.

 

Notice

 

Grabin v. Marymount Manhattan College, 2014 U.S. Dist. LEXIS 79014, 2014 WL 2592416 (S.D.N.Y. June 10, 2014).  http://www.leagle.com/decision/In%20FDCO%2020140611E99/GRABIN%20v.%20MARYMOUNT%20MANHATTAN%20COLLEGE

 

Heather Grabin, a communications major, was given a failing grade in group-work oriented, web-design, communications course (Comm 225) at Marymount Manhattan College.  Grabin’s attendance exceeded a rule in the syllabus that allowed for a maximum of two unexcused absences.  The student contends that all her absences were due to doctors’ visits and hospitalizations for serious infections related to her, disability, thalassemia, which is a blood disorder.

 

When in the hospital, the student sent several emails to her Comm. 225 professor, explaining her situation and asking for ways to make up the missed classes.  These requests either went unanswered or she was told it would be very hard to make up the missed classes and exercises. The professor declined to identify any way for her to make up the missed work and recommended to her that she drop the class.  At about the same time, a Marymount administrator gave her a different message, telling her, “everything would be taken care of.”

 

Grabin also sought assistance from the Dean of Students.  The Dean made some suggestions and encouraged her to meet again with the professor.  But the Dean deferred to the authority of the professor to enforce attendance rules. The record does not reflect any direction from either the professor or the dean that the student should take her concerns to the disabled student services office.

 

Following receipt of the failing grade, Grabin made multiple unsuccessful informal efforts to receive reconsideration of her grade, subsequently filing a formal grade appeal.  The College denied her request to meet directly with the appeal committee, which twice upheld her grade in the communication class.  As a result of the failing grade, the student failed to receive her degree or diploma.

 

Grabin sued the College under Section 504 of the Rehabilitation Act of 1973 for disability discrimination on the grounds that it failed to accommodate her disability.  The College responded with a motion for summary judgment on the grounds that Grabin was not an individual with a disability, was not qualified, and that she had not requested an accommodation and, even if she had, what she wanted would constitute a fundamental alteration.

 

The College’s motion failed.  One basic reason was that the court found both sides had not submitted as much evidence as they should have, leaving several material questions unresolved.  In this vein, the court declined to find that Grabin was an individual with a disability, only that she had placed enough into evidence to raise a question for further resolution at trial.  Similarly, as to qualification, the court noted that “Plaintiff’s testimony indicates that, if she had been permitted extra time, or additional instruction, she could have made up the in-class work she had missed while absent.” This was sufficient to survive a motion for summary judgment.  (Grabin was only one course short of her degree.)

 

The most notable issue in this dispute is whether Grabin had ever requested an accommodation. It appears that the student did not register with the College’s disabled student services office or provide it with documentation necessary to support an accommodation request. This is particularly significant as the student handbook states that, students who want accommodations should register with its disabled student services office and that “[i]nforming other College offices, faculty, or staff does not constitute registering with the office.”

 

The court’s analysis of this question begins by stating that, “a defendant is not liable for failure to provide a reasonable accommodation under the ADA if the plaintiff does not ask for an accommodation, or fails to provide information necessary to assess the request for an accommodation.”  The court points out however that the student identified her disability on her transfer and housing registration forms and that a reasonable fact-finder could determine that:

 

[P]laintiff notified Marymount “repeatedly and clearly regarding her disability…. More specifically, Plaintiff repeatedly requested accommodations in order to complete Comm 225. It is also conceivable that a jury could determine that the statements of Marymount’s senior administrators—telling Plaintiff, among other things, that “everything would be taken care of”—reasonably conveyed to Plaintiff that she had properly notified Marymount of her disability and had requested an accommodation of that disability.

 

As to the argument that Grabin’s requested accommodation(s) would constitute a fundamental alteration(s), the court both noted that academic decisions are entitled to deference but, as in several other recent cases, these are fact intensive case-by-case determinations.  The court’s opinion further suggests that some differences may also exist given the kind and scope of accommodation requested and the field of study.  The court stated, in pertinent part:

 

[The precedents concerning medical students cited by College] are qualitatively different from the instant case, not least of which because they were rendered upon more completely developed records than has been presented to this Court. Yet most importantly, these cases are factually distinct from the instant case. Here, Plaintiff sought an accommodation for several assignments in one course—a web design seminar—towards her communications degree, not to be excused from passing her first year of medical school.

 

Also pertinent to the court’s determination was that in every other course the teacher was able to figure out a way to accommodate Grabin and with these accommodations she was able to pass the courses.

 

If ever a case justified disability training for all faculty, it is this one.

 

Insert Colker and Grossman, Higher Education at p. 196 before Documentation.

 

 

Reasonable Accommodations/Auxiliary Aids/Academic Adjustments

 

Testing accommodations

The Summer Reading List for last year reported that the District court in Rawdin v. ABP, had concluded that an acquired learning disability following treatment for brain cancer is not a disability, when the individual is academically and professionally successful, and has both IQ and performance scores higher than the average individual in the general population. Rawdin v. American Board of Pediatrics, 985 F. Supp. 2d 636 (E.D. Pa. 2013):

Subsequent to circulation of the Summer Reading List, the Third Circuit affirmed the judgment of the district court in favor of the ABP.  Rawdin v. American Bd. of Pediatrics, 582 Fed. Appx. 114 (3d Cir. Pa. 2014). However, the Third Circuit assumed, without deciding, that, Dr. Rawdin was an individual with a disability.  Consequently, the Third Circuit’s opinion focused on whether Dr. Rawdin was entitled to accommodations that he was denied either on the examination or as an alternative to the examination.  The Court stated that under Title III regulation 28 C.F.R. § 36.309, Dr. Rawdin was entitled to an exam that “best ensured” that it was measuring his knowledge and aptitude and not his disability.  The Court concluded that the exam offered to Dr. Rawdin, with accommodations like extra time, met this standard. The testimony of the ABP witnesses at the District Court level, demonstrated to the Court’s satisfaction that the exam is not context free, requiring test-takers to dredge up facts from memory, a format that would be very challenging for someone with Dr. Rawdin’s impairments. Rather, the Court concluded that the exam is context-based requiring responses to scenarios.   Moreover the accommodations proposed by Dr. Rawdin, an open book exam, an essay rather than multiple-choice exam, direct observation or a portfolio review by the ABP instead of any exam, or a waiver of the exam, all constituted an undue burden or a fundamental alteration.

Insert Colker and Grossman, Higher Education at p. 316 before NOTE 2.

Individuals with mobility impairments

 

Murillo v. Citrus College, 2014 Cal. App. Unpub. LEXIS 6111 (Cal. App. 2d Dist. Aug. 28, 2014).  http://www.courts.ca.gov/opinions/nonpub/B248201.PDF

This is an unpublished opinion (that is not citable) by a state court.  It is included nonetheless for its potential for use in the classroom and other teaching settings.

 

Ricardo Murillo is an individual with quadriplegia who attended Citrus College. While at the College the student experienced the sudden onset of autonomic dysreflexia, a common side effect of quadriplegia entailing excessively high blood pressure. The student asked a nurse at the campus health center to help him take three medications by lifting the pills to his mouth. The Health Center’s staff would not provide this assistance and explained to the student that it was their policy not to administer medications to students.

 

On the grounds that the College was refusing to provide a reasonable modification, the student sued the College in state court under the authority of both California antidiscrimination law and Title II of the ADA.  The College filed a motion for summary judgment on the grounds that to provide medication services would constitute a fundamental alternation of its program as it provided such services to no one. The district court agreed and granted the motion for summary judgment.

 

The student appealed the determination of the district court.   On a number of grounds, the appellate court concluded that the district court determination was in error. As has been recently noted in other reversals of summary judgment, citing to PGA v. Martin, the appellate court stated,  “[T]he determination of what constitutes [a] reasonable modification is highly fact-specific, requiring case-by-case inquiry.”  …. ‘[M]ere  speculat[ion] that a suggested accommodation is not feasible’ falls short of the ‘reasonable accommodation’ requirement.”  Further, fundamental alteration is an affirmative defense with the burden on the College and the record had not yet been developed enough to decide this issue.  For example, the court wondered about the hours and staffing at the health center.  Moreover, it was not clear on the record whether this modification could be implemented elsewhere by the College such as the DSS office.

 

The appellate court also found unpersuasive the not uncommon argument of, “if we do it for this student, we will have to do it for all (or too many) students.”

 

This argument ignores the fact that the plaintiff is seeking an “accommodation” and not a change to the Health Center’s general policies with respect to other students. Discrimination may be shown precisely where the defendant treated plaintiff the same as everyone around her, despite her need for reasonable accommodation. Accordingly, a person with a disability may be the victim of discrimination precisely because she did not receive disparate treatment when [the individual] needed accommodation. [citations omitted]

 

Finally, the appellate court acknowledged that the College raised health and safety concerns that must be considered.  But again, the court did not consider appropriate to do so on a motion for summary judgment.

 

The defendants are entitled, under the ADA’s implementing regulations, to “impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities[,]” so long as such “safety requirements are based on actual risks, not mere speculation, stereotypes, or generalizations about individuals with disabilities.” (28 C.F.R. 35.130(h).) However, here, there are triable issues of fact as to whether the defendants’ safety concerns could be alleviated by giving the Health Center copies of the plaintiff’s prescriptions or requiring the plaintiff to execute a waiver with respect to claims that could arise as a result of the Health Center’s assisting with administering his medication.

 

For the above reasons, the appellate court reversed and vacated the district courts order granting summary judgment to the College and the student was awarded his costs on appeal.

 

Insert Grossman and Colker, Higher Education at p. 223 before Burden and Order of Proof.

 

Individuals with sensory impairments

As reported last year, on January 10, 2014, the National Federation for the Blind filed a complaint, in Dudley v. Miami University (S.D. Ohio 2014) (1:14-CV-00038).  See https://nfb.org/images/nfb/documents/pdf/miami%20teach.pdf (last viewed on May 22, 2014).

The complaint in this matter alleged that, a blind student pursuing a degree in zoology for the objective of attending veterinary school at Miami University, a public entity, intentionally violated title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by acting “with deliberate indifference” and failing to provide necessary auxiliary aids or modifications in the student’s classes and labs.  According to her complaint, the University sent a letter to her instructors suggesting that only two modifications were necessary: offering all classroom material in Rich Text Format and allowing double-time for exams and quizzes.  The letter to the faculty made no mention of Braille textbooks, tactile graphics, human assistants, timely course materials or accessible learning management software — all accommodations she stated were necessary. Her lecture instructors used LearnSmart to manage homework assignments, which she states was not accessible to her.  She also was not permitted to participate fully in lab activities.

The student, some teachers, and a graduate assistant brought a number of the identified deficiencies to the attention of the University.  In several instances, the student proposed solutions, but the University allegedly failed to act on this notice or advice. She also alleged that Miami University made technology procurement decisions with deliberate indifference to her rights in procuring inaccessibiletechnology even though accessible technology existed and was being used at other universities.

The student sought to have her grades expunged, receive a refund of tuition and costs, and an award of compensatory damages, attorneys’ fees, and prospective injunctive relief in the form of effective and timely modifications and adjustments in all classes and labs.

On April 7, 2014, the United States initiated an investigation of the above issues as well as broader issues.   On April 23, 2014, the Federal District Court tolled the proceedings, allowing the parties and the United States an opportunity to resolve this matter without further litigation.   Consequently, at this time, the University has not filed an answer to the NFB complaint nor has it exhausted its opportunity to file for a motion to dismiss the NFB complaint.

On June 25, 2014, DOJ advised the parties that it had found violations of Title II of the ADA at Miami University.  Among the violations, DOJ found that Miami University:

  • Used technologies that are inaccessible to individuals with disabilities, including those with learning, hearing, and vision disabilities
  • Failed to ensure, through the provision of appropriate auxiliary aids and services, that communications with individuals with disabilities are as effective as communications with others.
  • Failed to reasonably modify its policies, practices, and procedures where necessary to avoid discrimination on the basis of disability.

To date, the parties and DOJ have not reached a settlement and on May 12, 2015, with the consent of counsel for the plaintiff, the United States filed with the Federal District court a motion to intervene. http://www.justice.gov/opa/pr/justice-department-moves-intervene-disability-discrimination-lawsuit-alleging-miami

 

The motion for intervention rests on a number of arguments including that:

 

  • Due to the tolling, the litigation is still at its very earliest procedural stages
  • The disposition of this case impacts the United States’ interest in eliminating disability discrimination effected through the use of inaccessible technologies in higher education. This is an area of great public importance because educational institutions are increasingly using various technologies in their educational programs.
  • The NFB represents the interests of persons with vision impairments but a broader range of disabilities is implicated in this matter including hearing and learning disabilities.
  • The Department of Justice plays a central role in interpreting, enforcing, and implementing the ADA and the Department’s Title II regulation and the outcome of this litigation may adversely impact that responsibility.

 

At this time, some observers are predicting a settlement agreement under the supervision of the court. The plaintiff has withdrawn from Miami University and enrolled at another university.

Insert, Colker and Grossman, Higher Education at p. 260 after NOTE 3.

Argenyi v. Creighton University

Last year’s Reading List reported, in a case involving accommodations for a student with a hearing impairment, that summary judgment for Creighton University had been reversed and the matter was to be set for trial.    Argenyi v. Creighton Univ., 703 F.3d 441 (8th Cir. Neb. 2013).

Following a jury verdict that Creighton University had denied a deaf student auxiliary aids and academic adjustments the federal district court considered Argenyi’s request for declaratory, equitable, and injunctive relief. At the end of 2013, the court ordered the University to provide Argenyi with auxiliary aids and services for the remainder of his medical school education at Creighton including CART in didactic settings and sign-supported oral interpreters in small-group and clinical settings.  The court denied Argenyi’s request for reimbursement for the over $130,000 he had spent on CART and other interpreting services.

In May of 2014, the question of fees for the “prevailing party” was decided by the district court.  Creighton was ordered to pay Argenyi and his team of eight lawyers $487,000 for attorney fees, expert fees, and costs.  The court ruled that the jury’s verdict that the University had discriminated against Argenyi was sufficient to establish that he was the “prevailing party.”  Argenyi v. Creighton Univ., 2014 U.S. Dist. LEXIS 63726, 2014 WL 1838980 (D.Neb.)(D. Neb. May 8, 2014)

After taking a leave of absence, Argenyi returned to the University this past July to begin his last two years of medical school.  In the meantime, Creighton filed a notice of appeal in the Eighth Circuit, focusing on the question of undue burden.  Subsequently the parties announced a confidential settlement.  It is known that Creighton withdrew its appeal and that Argenyi is reported to be happy with the terms of the settlement.

Insert Colker and Grossman, Higher Education at p.280 after NOTE 1.

Food allergy accommodation

According to the Food Allergy Research and Education (FARE) foundation, “food allergy reactions send someone to the emergency department every three minutes, resulting in more than 200,000 emergency department visits in the U.S. per year. The increasing number of people with food allergies, coupled with the fact that teenagers and young adults are at the highest risk for fatal food-induced anaphylaxis, makes this a critical issue for colleges and universities.”  In response to these urgent circumstances, FARE has issued 53 pages of Pilot [draft] Guidelines for Managing Food Allergies in Higher Education, including checklists and model policies.  http://www.foodallergy.org/document.doc?id=382  The topics covered in the pilot guidelines include:

  • A clear process for requesting accommodations/modifications
  • Documentation required to establish an individual’s food allergy as a disability
  • A process for determining appropriate accommodations
  • Strategies for implementing accommodations
  • Outreach and marketing so that students and others know of food allergy/celiac disease accommodation services
  • Assessment of services, assuring compliance and remedying mistakes
  • Emergency response plans, training and signage including how to respond to anaphylaxis and promptly administer epinephrine
  • Training including who should receive it
  • Food preparation, production, avoiding cross-contact or using separate equipment, sanitizing, labeling, and serving
  • Student responsibilities
  • Confidentiality of student documentation and records

 

Insert Colker and Grossman, Higher Education at p. 317 before Safety.

 

 

Students with Psychological Disabilities

Settlement with Quinnipiac University http://www.ada.gov/ quinnipiac_sa.htm

University counselor, possibly “over-reacting,” concluded that a student was self-destructive or suicidal, called ambulance and had student hospitalized.  Before Student left hospital she was handed papers by Quinnipiac which placed her on “mandatory medical leave” with return contingent upon “assess[ment] by a university-designated psychiatrist.”   The perspective of DOJ is that college violated Title III of the ADA because it failed to engage in an individualized interactive process or even consider modifications to its dismissal policies including housing student with her parents and taking classes on-line. Analysis does not suggest that emergency response or even decision to dismiss Student from the dorm was part of the violation. The settlement agreement provides that Quinnipiac will conduct an individualized assessment and case-by-case determination as to whether and what modification(s) can be made to allow students with mental health disabilities participate in the educational programs at Quinnipiac, and to continue to attend their classes while seeking treatment for mental health conditions and to pay the student $17K for emotional distress, pain and suffering, and other consequential injury and another $15K to student loan provider to reimburse for lost tuition.

 

Insert Colker and Grossman, Higher Education at p.319 following the third paragraph.

 

Hershman v. Muhlenberg College, 17 F. Supp.3d 454 (E.D. Pa. 2014).

Student at Muhlenburg College, close to graduation, missed an unspecified number of classes due to his depression, and as a result, he did not satisfy the attendance requirement for one class. The professor refused to make any accommodation to allow the plaintiff to pass the class. Since successful completion of the class was a graduation requirement, the Student sought to substitute credit from another course to satisfy the prerequisite, but the department chair denied plaintiff’s request.  Student and his parents met with the College and were informed that he would fail the class unless he obtained a medical withdrawal.

It appears that the Student took a medical withdrawal with regard to the class in question.  At the College’s invitation, he and his family attended ceremony but the program for the ceremony listed an asterisk next to his name indicating a later graduation date.  A semester later, the Student satisfied the graduation requirements and received his diploma.

The student subsequently sued the College under Title III of the ADA on grounds that it failed to accommodate him and for “intentional infliction of emotional harm,” a state law tort claim.  The latter claim was based on the “emotional distress” he experienced due to the asterisk in the graduation program.

The College filed a motion for dismissal of the Student’s complaint on the grounds that he was not a qualified individual with a disability as the accommodations he sought were not “reasonable.” Their implementation, the College argued, would require a fundamental alteration to the College’s program.

The College’s motion for dismissal failed.  (There does not appear to have been a dispute over whether the Student was an individual with a disability.)  The district court concluded that the Student was a qualified individual as he completed his course of study and graduated. Most importantly, the court concluded that it did not yet have sufficient information to determine whether the Student’s requested accommodations were reasonable or unreasonable because the determination of what is a fundamental alteration is “a fact specific question,” as the Supreme Court explained in PGA v. Martin.  The court was concerned that it did not know about certain facts it considered relevant, including the Student’s major, the nature of the course in question, the nature of the course the student proposed to substitute, and why both the professor and the dean refused to make any form of accommodation.  Consequently, the court ordered discovery to proceed on the Student’s ADA claim.

Based on state law precedents, the College’s motion to dismiss was granted on the tort claim.

Insert Colker and Grossman, Higher Education at p.211 after Note 2.

 

 

Quinones v. University of Puerto Rico, et al., No. 14-1331, 2015 WL 631327, 2015 U.S. Dist. LEXIS 18319, 31 Am. Disabilities Cas. (BNA) 471 (D. P.R. Feb. 13, 2015).

Karina Quinones, MD, entered an ophthalmology residency program at the University of Puerto Rico in July of 2011.  At approximately the same time, she became addicted to a number of drugs prescribed to support sobriety and to help her concentrate in school, including Adderall.  To support the fact that her impairment substantially interfered with major life functions, she averred that her addiction to Adderall caused her visual disturbances, speech problems, and dizziness.  The court also noted that as a result of her addiction she had problems in complying with certain requirements of the Residency Program.  In September of 2012, Dr. Quinones was dismissed from the program.  Pursuant to a settlement agreement, she was permitted to apply for readmission in November of 2012. At that time, Dr. Quinones asked for an “accommodation” in the form of readmission and she provided evidence to the University that she had been sober for approximately 20 months, clean for “a little over three months,” and was actively participating in Alcoholics Anonymous.  In April of 2013, the University denied her request for readmission.  Shortly thereafter she filed suit for disability discrimination under Title II of the ADA and Section 504 of Rehabilitation Act.  The University responded with a motion to dismiss.

In the mix of issues before the court, the most important one was whether Dr. Quinones was drug-free long enough to qualify for the “safe-harbor” provision of these laws that pertains to the disability of drug-addiction. Under the ADA (and Section 504) if a person is a “currently engaging in the illegal use of drugs,” including abuse of prescription drugs, a covered entity may take adverse action on the basis of such use. However the ADA protects “[i]ndividuals who are recovering from an addiction to drugs, as the statute aims to protect them from the stigma associated with their addiction” To achieve this objective the ADA contains a “safe harbor” that extends ADA coverage to an individual who:

  • has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
  • is participating in a supervised rehabilitation program and is no longer engaging in such use; or
  • is erroneously regarded as engaging in such use, but is not engaging in such use . . . .

 

Relying largely upon employment discrimination precedents, in the opinion of the court, the University did not violate the ADA or Section 504 in treating Dr. Quinones without regard to the protections of the safe harbor provision.  According to the court, there is no “bright line” for how long an individual must be clean to no longer be a “current drug user.”  This determination is to be made on a “case by case” basis.  “[T]he ‘safe harbor’ provision applies only to [individuals] who have refrained from using drugs for a significant period of time.”  The courts also agree that a significant period of time must pass for an individual to not be considered a current user. This is because this “safe harbor” provision “exclude[s] from statutory protection an employee who illegally uses drugs during the weeks and months prior to her discharge, even if the employee is participating in a drug rehabilitation program and is drug-free on the day she is fired.”  A “current drug user” is one whose illegal use “occurred recently enough to justify a reasonable belief that a person’s drug use is current.”

In addition to basing its decision in favor of the University on the short duration of the time Dr. Quinones had refrained from illegal drug use, the court also noted that the duration of the addiction is pertinent and that certain fields may justify greater caution than others. “[A] short period of abstinence, particularly following such a severe drug problem, does not remove from the employer’s mind a reasonable belief that the drug use remains a problem.”   A court may examine “the level of responsibility entrusted to the employee; the employer’s applicable job and performance requirements; the level of competence ordinarily required to adequately perform the task in question; and the [individual’s] past performance record.”

Insert Colker and Grossman, Higher Education at p.126 after Note 1.

The Intersection of Race, National Origin and Disability

Salmeron v. Regents of the University of California, No. C 13-5606, 2014 U.S. Dist. LEXIS 80344, 2014 WL 2582712 (N.D. Cal.06/09/14).

A claim of discrimination in dismissal from medical school filed under Section 504, the ADA, and Title VI of the Civil Rights Act of 1964 is sufficient to withstand a motion for summary judgment by alleging that the individual’s minority group status (Mexican American) and disability (LD) status were known to the institution, the university engages in interactive communications and provides accommodations to white and other “non-Mexican American” individuals with disabilities but refuses to engage in the interactive process and denied accommodations to the plaintiff.  Such a claim is further supported when it is alleged that following dismissal, the Dean of the School refused to follow a grievance panel’s recommendation of reinstatement and the institution used the student’s image as part of diversity-related recruitment efforts, even after the student was dismissed.  “Although it is a close call, the court finds these allegations sufficient to plausibly allege discriminatory intent.”

 

Retaliation

Cottrell v. Norman, 2014 U.S. Dist. LEXIS 101645, 2014 WL 3729215 (D.N.J. July 25, 2014). http://law.justia.com/cases/federal/district-courts/new-jersey/njdce/1:2012cv01986/272545/66/

 

Making use of disability parking spaces, parent (Cottrell), her companion, and daughter with severe disability visit and participate in programs open to the public at Rowan University, a private school.  Cottrell and her companion “are self-described longtime ‘advocates for the disabled’ and often challenge parking violations of individuals who illegally park in handicap parking spaces.”  In March 2010, parent’s companion videotaped a vehicle with an expired placard parked in a designated disability space at the University.

 

In April, Cottrell drove her daughter to the campus to participate in a “Get Fit” class. Cottrell noticed the same car with an expired placard in a disability space. This time, she got in a verbal confrontation with the driver, got into her car, and took the placard.  Following a complaint by the driver, campus and local police arrested Cottrell at her home for criminal charges resulting from the event. She was also given a no-trespass order from the college, which stayed in effect even after the criminal charges were dropped.

 

Cottrell and her companion sued under Title III the ADA for discrimination and retaliation. Defendant filed a motion for summary judgment. Plaintiffs’ Title III discrimination claim was dismissed, because neither individual was disabled.  However, the court found that plaintiffs did have standing to assert a retaliation claim as “[t]he ADA … makes it unlawful to retaliate against or intimidate any individual because he or she has opposed any act or practice made unlawful by the ADA …” [emphasis added]

 

Although the plaintiffs had standing to assert retaliation, their claim failed on its merits as the defendants convinced the court that the adverse action was causally connected to impermissible conduct by the plaintiffs, not their protected activities.  The University had not taken any adverse action when the plaintiffs taped unlawfully parked cars.  The action was taken only following harassment of and theft from a driver. “[E]ven if plaintiffs had come onto campus to protect disabled persons’ parking rights, [it] does not mean they can conduct themselves in any manner without consequence. The cloak of the ADA does not extend its protections that far.”

 

Widomski v. State Univ. of N.Y. (SUNY) at Orange, 933 F. Supp. 2d 534 (S.D.N.Y. 2013)

 

Second Circuit found that the convening of a disciplinary/dismissal hearing following a letter from student’s attorney alleging that the student was misperceived as having a disability and unlawfully excluded from phlebotomy clinics, did not establish retaliation where the convener of the hearing had “a good faith belief “that the student had falsified required clinical reports and the student failed to establish that this belief that was a pretext for discrimination.

 

Sjöstrand v. Ohio State Univ., 750 F.3d 596 (6th Cir. 2014)

 

University’s articulated legitimate nondiscriminatory reasons for not admitting applicant to its graduate school of psychology were sufficient for federal district court to order summary judgment for University.  However, as reported in last year’s Summer Reading List, applying a classic disparate treatment analysis (McDonnell Douglas v. Green, 414 U.S. 811 (1973)), the Sixth Circuit reversed in light of the fact that the applicant’s disability, Crohn’s disease, was known by the admissions committee and discussed in the admissions interview, the applicant had very strong paper qualifications in comparison to other admitted applicants, and, when she asked, she was not given by the school prompt, clear, or consistent reasons for her rejection.

Subsequent to the publication of last year’s Summer Reading List, a jury trial was held and the jury found for the University. Case: 2:11-cv-00462-MRA Doc #: 103 Filed: 09/29/14

See also McKee v. Madison Area Tech. College, 2014 U.S. Dist. LEXIS 70967, 2014 WL 2159257 (W.D. Wis. May 22, 2014). http://leagle.com/decision/In%20FDCO%2020140527G48/McKEE%20v.%20MADISON%20AREA%20TECHNICAL%20COLLEGE

In a decision contrary to law, Federal District Court concludes that ADA covers disability-related retaliation claim by students, but Section 504 does not.  Due to absence of evidence of discriminatory intent, court granted defendant’s motion for summary judgment on all federal claims and remanded plaintiff’s state law claims for breach of contract and negligent infliction of emotional distress to state court.

 

 

Facilities Access

 

Williams v. Southern Univ. & Agric. & Mech. College, 2012 U.S. Dist. LEXIS 145852, 2012 WL 4829488 (M.D. La. Oct. 10, 2012)

[This is a citation to a discovery motion. I can’t find either the complaint or the consent decree on Lexis.  Correct links to the complaint and the settlement are provided below and even then I may not have a link to the final amended complaint]

Lawsuit: http://theadvocate.com/csp/mediapool/sites/dt.common.streams.StreamServer.cls?STREAMOID=miL3Pu8Yv$M$aME5$ZQguJM5tm0Zxrvol3sywaAHBAnivlp5nxSJnEO0Mfd4eDSfE0$uXvBjavsllACLNr6VhLEUIm2tympBeeq1Fwi7sIigrCfKm_F3DhYfWov3omce$8CAqP1xDAFoSAgEcS6kSQ–&CONTENTTYPE=application/pdf&CONTENTDISPOSITION=Southern%20Williams%20Lawsuit.pdf

Settlement: http://theadvocate.com/csp/mediapool/sites/dt.common.streams.StreamServer.cls?STREAMOID=jQQKWnilRvICOWv3Ez02v5M5tm0Zxrvol3sywaAHBAmTauUdzj2jhKYG34RyvxpFE0$uXvBjavsllACLNr6VhLEUIm2tympBeeq1Fwi7sIigrCfKm_F3DhYfWov3omce$8CAqP1xDAFoSAgEcS6kSQ–&CONTENTTYPE=application/pdg&CONTENTDISPORTION=Southern%20Settlement.pdf

 

As the result of a gunshot that severed her spine, Kayla Williams uses a wheelchair for mobility and a catheter and bag for toileting.  In her complaint against Southern University, as amended, Williams alleged that Southern violated Title II of the ADA and Section 504 of the Rehabilitation Act by maintaining and refusing to remove multiple barriers to accessing the academic, athletic and social programs and facilities of the University.  In her complaint, Williams cites to inaccessible paths of travel, ramps, entrances, bathrooms, classrooms, as well as work tables and desks in the building in which her MBA program was held.  She also provides detailed examples of inaccessible features in the athletic and public event venues of the University.

 

Most significant to this complaint are the insights it provides as to the burdens such an individual may face as the result of inaccessible restroom facilities. She alleged that because she could not access the restrooms at the MBA program site, she suffered  “feelings of humiliation, embarrassment and indignity” when her catheter bag overflowed, often in public, leaving her to sit in her own urine, while waiting for a ride home to change her clothes. Moreover, in some instances, these conditions also created or exacerbated serious medical conditions.  As to the absence of appropriate desks for tables, Williams alleged that she was required to “sit at a contorted and uncomfortable angle in order to use classroom desks” because they weren’t tall enough to accommodate her wheelchair. “It is especially difficult for her when she needs to use a computer, because she cannot slide under the desk to reach the computer keyboard.”

 

In 2014, the University and Williams entered into a consent decree agreement.  This agreement includes many provisions that are logically-related to her complaint including correction of steep ramps; additional wheelchair and companion seating at sports and other venues; accessible washrooms in both classroom buildings and sports venues, and provision of accessible desks in academic settings.

Of note are several provisions not regularly found in similar agreements, including:

  • A transition plan with a schedule that spreads implementation over a period of five years based on logical priorities.
  • To ensure that the option of moving a program from an inaccessible site to an accessible one is not merely a theoretical solution, the plan provides that the University “will designate one individual … with authority to move classes or other events to accessible locations … and will publicize the identity and contact of that person ….
  • University is required to “employ an ADA Coordinator who shall have the responsibility and authority to review all renovations, new construction, or modifications to facilities to ensure that the requirements of the ADA shall be This person shall also have the responsibility and authority to relocate academic classes, programs or events to accessible facilities to ensure that all programs meet the requirements of the ADA.”
  • When making a program accessible requires structural changes, “[t]he changes shall be made as expeditiously as possible, and must be completed within two years of the approval of [the] Consent ”
  • To ensure that once a barrier is removed, it will not reemerge due to lack of maintenance, the University is required to “maintain in operable working condition those features of facilities and equipment that are required to provide access to individuals with ’ This responsibility extends to night-time programs, as well.
  • In the event of any temporary interruptions in services or access, the University “will evaluate the impact of the interruption in services or access on accessibility of [its] programs to individuals with disabilities. … [T]he [University] will plan and implement such measures as are necessary to make its programs … accessible to persons with disabilities …. Such measures may include the designation, with appropriate signage, or alternate accessible routes, or relocation of programs or services to accessible ”

 

Another important concern addressed under the decree is fire safety.  For example, the decree provides that the University will create “a place of refuge” in its sports stadium.  It also provides for fire safety and training for emergency evacuation for persons with mobility impairments “on each floor of each building on campus, and will train all personnel with responsibility for carrying out this procedure, and will drill them at least once each semester on carrying it out.”  In addition, all faculty and staff are to be informed as to how to evacuate persons with mobility impairments in case of an emergency. The decree also provides for unspecified damages, attorney’s fees and costs for Williams.

Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. Cal. 2014); cert. denied __ U.S.__ (June 29,2015).  http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/05/12-56280.pdf

http://www.supremecourt.gov/orders/courtorders/062915zor_4g25.pd 

Robin Fortyune is a paraplegic who uses a wheelchair for mobility. In his ADA Title II complaint against the City of Lomita, he alleged that, “he experiences ‘great difficulty, discomfort and, even fear for his safety’ when frequenting facilities in the City because none of the City’s public on-street [diagonal] parking is accessible to people with disabilities.”  The City of Lomita had the matter removed from state to federal district court.  The City argued that, “absent the adoption of ADA implementing regulations specifically targeted toward on-street parking, it is not required to provide accessible on-street parking.” The district court denied the motion to dismiss, concluding that “the broad language of the ADA requires public entities to ensure that all services, including on-street parking, are reasonably accessible to and usable by individuals with disabilities.”

 

The City appealed the district court decision to the Ninth Circuit.  Relying on the general regulatory language governing all Title II activities, such as 28 C.F.R. § 35.150 and 35.150(a), and U.S. Department of Justice published technical assistance guidance, the Ninth Circuit ruled that the program accessibility rules require the provision of on-street public parking even if there is no specific regulation requiring the installation of on-street public parking. “[A]t bottom, the regulation [28 C.F.R. § 35.150] mandates program accessibility for all normal governmental functions, including the provision of on-street public parking.” “T]he 2010 Standards contain detailed specifications for a range of different facilities, but none of them address on-street parking. However, nothing in 28 C.F.R. § 35.151 suggests that when technical specifications do not exist for a particular type of facility, public entities have no accessibility obligations.”

 

Further, in 1994, the Justice Department issued a technical assistance manual.  In pertinent part, that manual states: “If no standard exists for particular features, those features need not comply with a particular design standard. However, the facility must still be designed and operated to meet other title II requirements, including program accessibility.”  The Ninth Circuit accorded this guidance considerable weight, presuming it to be correct.. “An agency’s interpretation of its own regulations is entitled to deference.” …..   “[E]ven if we had doubts about the applicability of 28 C.F.R. § 35.151 to facilities for which no technical specifications exist, we would be bound to defer to the DOJ’s interpretation of the regulation because it is not “plainly erroneous or inconsistent with the regulation.”

Relying on two broad Title II regulations and DOJ technical assistance, the Ninth Circuit concludes:  “The text of the ADA, the relevant implementing regulations, and the DOJ’s interpretation of its own regulations all lead us to conclude that public entities must ensure that all normal governmental functions are reasonably accessible to disabled persons, irrespective of whether the DOJ has adopted technical specifications for the particular types of facilities involved.”

 

 

Digital Access and Equality

The Department of Justice has published its spring 2015 regulatory agenda pursuant to Executive Order 12866, ‘‘Regulatory Planning and Review,’’ 58 FR 51735, and the Regulatory Flexibility Act, 5 U.S.C. 601 to 612 (1988). The agenda reveals that DOJ has separated the web access rule-making process for public entities from that of public accommodations.  The notice provides a schedule for the final comment period for the regulations for public entities (closing August 2015).  It also has information about rule making for captioning of movies at movie theatres, with a publication date of December 2015. See http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201410&RIN=1190-AA65 (split from RIN 1190-AA61).

Insert Colker and Grossman, Higher Education at p. 289.

The U.S. Department of Justice and the U.S. Department of Education, Office for Civil Rights, have become even more active than last year in taking enforcement actions against universities whose web sites and services are not accessible to students who use adaptive technology like JAWS software (or other screen readers) to read text.  These actions are usually taken under Title II but the same principles would apply to a Title III entity.

Two OCR letters, Youngstown State University and University of Cincinnati, issued at virtually the same time, are particularly noteworthy because they go further than in the past in explicitly stating how the regulations implementing Section 504 and Title II of the ADA apply to the virtual world.

Digital access in academia

University of Cincinnati, OCR compliance review #15-13-6001 (December 2014) http://www2.ed.gov/documents/press-releases/university-cincinnati-agreement.pdf

The University of Cincinnati is a public institution subject to Section 504 and Title II of the ADA.  According to data analyzed by OCR, it has approximately 43,000 students.  Approximately 31% of its undergraduate students participate online for some part of their course work; 9% exclusively on line; while 29% of graduate students participated solely on line.  3-5% of all students are registered with DSS.

 

The OCR letter in this matter is exceptionally instructive as it lays out the legal standards; applies the standards to concrete examples; and, provides a narrative with insights on how persons who use adaptive technology are challenged by in accessible electronic information technology (EIT).

 

The scope of OCR’s review of EIT was quite comprehensive, including:  general websites, such as admissions, academic program descriptions, athletics programs, library services, health services, faculty and student directories, research tools; and resources; academic courseware, in this case Blackboard; and distance learning. The letter is also noteworthy for the fact that it considers the impact of inaccessible EIT on more than just students.

 

OCR found numerous violations including ones that did not pertain to EIT.  For example, OCR found multiple shortcomings with regard to notice of nondiscriminatory practices and procedures. With regard to EIT, OCR found that the University lacked adequate tools and procedures for ensuring that its websites were accessible, that the content it posted on Blackboard was accessible, or that the content of its on-line learning programs was accessible.  Consistent with a growing theme in many areas of disability compliance, OCR explicitly rejected the use of a system that only addresses compatibility problems when a complaint is received. This letter also addressed the duty to caption videos.

 

The remedial agreement with OCR has four basic components:

  • Develop for OCR review a policy to ensure that information communicated through University websites, on-line or e-learning systems, course management systems or EIT are accessible to students, prospective students, employees, guests, and visitors with visual, hearing, and manual impairments.
  • Develop and implement a plan for accessibility audits by the access coordinator with audit accounting
  • Develop and implement a plan for acquisition and contracting that ensure purchases are accessible
  • Annual training on EIT access for faculty, staff, administrators, support staff, and student employees and a qualified individual available to assist them on complying with technical standards

 

The agreement also contains some significant quality control and monitoring provisions which will be in effect at least through 2018.

Insert Colker and Grossman, Higher Education at p.290 before Notes.

Youngstown State University, OCR compliance review #15-13-6002 (December 2014) http://www2.ed.gov/documents/press-releases/youngstown-state-university-letter.pdf

 

Youngstown State University is a public institution subject to Section 504 and Title II of the ADA.  It has a total undergraduate and graduate enrollment of 14,000 students; with 13% of undergraduates and 5% of graduate students receiving some part of their education on-line.

It appears that Youngtown State had fewer compliance challenges than did the University of Cincinnati.  For one thing, Youngstown had published guidance and standards for making many of its EIT activities accessible.  The basis for finding noncompliance at Youngstown was largely that it lacked active implementation procedures, training, and monitoring procedures necessary to implement its guidance and standards.

The remedies negotiated with Youngstown are very similar to those negotiated with the University of Cincinnati; albeit, the period of monitoring by OCR is presumed to be of a shorter duration.

Insert Colker and Grossman, Higher Education at p. 290 before NOTES.

The National Federation of the Blind, Anthony Lanzilotti and Mitchell Cossaboon v Atlantic Cape Community College, consent decree, D.N.J. Case No. 1:33-av-00001 (2015). https://nfb.org/national-federation-blind-and-two-blind-students-resolve-complaint-against-atlantic-cape-community

Atlantic Cape Community College (ACCC) is a public two year institution with approximately 7,000 students.  The consent decree resolves two students’ allegations of discrimination on the basis of disability. The College denies the allegations of discrimination and has admitted no wrongdoing. The agreement requires the College to work with a third-party consultant and the National Federation of the Blind to take steps to improve the educational experience of students with disabilities and to prevent discrimination against these students, including:

  • Conducting a technology audit and, based on the audit results, developing a plan to make all student-facing electronic and information technology used by ACCC accessible to students with disabilities no later than three years from the completion of the technology accessibility audit;
  • Making ACCC’s websites accessible to blind students within 240 days of the execution of the consent decree;
  • Making ACCC’s integrated library system and its website fully accessible to blind students;
  • Developing a plan to provide accessible instructional materials, including textbooks, course materials, and tactile graphics, to blind students and to other students with disabilities at the same time that these materials are made available to students without disabilities, and to implement this plan no later than three years from the effective date of the consent decree;
  • Requiring cooperation among faculty, staff, and ACCC’s Disability Support Services office to handle accommodation requests made by students with disabilities;
  • Reviewing and revising ACCC’s policies and procedures for accommodating students with disabilities and for processing and resolving grievances brought by students with disabilities, including requiring ACCC’s Disability Support Services office to self-report any failure to resolve a student’s complaint or accommodation request, triggering an automatic grievance procedure; and
  • Requiring training of all personnel on the Americans with Disabilities Act and on ACCC’s policies for accommodating students with disabilities, as well as training for such students on their rights and the procedures available to them to enforce those rights.

 

Insert Colker and Grossman, Higher Education at p. 290 before Notes.

DOJ edX settlementhttp://www.ada.gov/edx_sa.htm    Litigation not filed

A settlement agreement between the Department of Justice and edX, resolves allegations by DOJ that edX’s website, http://www.edx.org, and its platform for providing massive open online courses (MOOCs), were not fully accessible to individuals with disabilities, including individuals who are blind or have low vision, individuals who are deaf or hard of hearing and individuals who have physical disabilities affecting manual dexterity, in violation of Title III of the ADA.

According to DOJ, edX was created in 2012 as a nonprofit platform for universities to offer MOOCs. Today, edX has approximately 60 university and institutional members providing over 450 courses to over 3,000,000 learners.  The courses are offered largely for free in subject matters as varied as business, computer sciences, hard sciences, food and nutrition and social sciences.

Of note is the deference paid in this agreement to the Web Content Accessibility Guidelines (WCAG) 2.0 AA.   The agreement specifically requires edX to make significant modifications to its website, platform and mobile applications to conform to these guidelines.

The four-year agreement requires edX to:

  • make the edX website, its mobile applications, and learning management system software, through which online courses are offered, fully accessible within 18 months;
  • ensure that its content management system is fully accessible and supports authoring and publishing of accessible content within an additional 18 months;
  • provide guidance to course creators at its member universities and other institutions on best practices for making online courses fully accessible;
  • appoint a Web Accessibility Coordinator;
  • adopt a Web Accessibility Policy;
  • solicit feedback from learners on the accessibility of the courses;
  • conduct Web Accessibility Training for employees responsible for the website, platform, and mobile applications; and
  • retain a consultant to evaluate conformance of the website, platform, and mobile applications

Insert Colker and Grossman, Higher Education at p. 290 before Service Animals.

National Association of the Deaf, et al., v. Harvard University, et al., US Department of Justice statement of Interest, Civil Action No. 3:15-cv-30023-MGM, D. Mass (June 23, 2015).  http://www.ada.gov/briefs/harvard_soi.pdf

National Association of the Deaf, et al., v. Massachusetts Institute of Technology, US Department of Justice statement of Interest, Civil Action No. 3:15-cv-300024-MGM. http://www.ada.gov/briefs/mit_soi.pdf

The Justice Department has announced that it has filed Statements of Interest in these two matters.  Plaintiffs allege that Harvard and MIT violated the ADA and Section 504 by denying equal access to free online courses and lectures to individuals who are deaf or hard of hearing because they fail to provide appropriate auxiliary aids, benefits and services, including captioning.

Both Universities argue that the complaints should be stayed or dismissed until the Department of Justice issues regulations under the ADA on website accessibility.  They further argue that neither the ADA nor Section 504 of the Rehabilitation Act require the provision of captions on their online programming.

In its Statements of Interest, DOJ responds to the first argument by asserting that the Plaintiffs’ claims do not require the Court to “’unravel intricate, technical facts,’ but rather involves consideration of facts within the conventional competence of the courts ….”  “And because the title III rulemaking on website accessibility is not imminent, dismissal or stay of this case … would not materially aid this Court and would significantly prejudice the Plaintiffs …”

 

With regard to the second argument of the Universities, DOJ states that a public accommodation includes an “undergraduate, postgraduate private school, or other place of education,” such as MIT and Harvard. 42 U.S.C. § 12181 (7)(J).   Under Title III, public accommodations must ensure that persons with disabilities are not denied services “because of the absence of auxiliary aids and services.”  Further, public accommodations must furnish appropriate “auxiliary aids and services” where necessary for “effective communication.”  Auxiliary aids and services include,” open and closed captioning and accessible electronic and information technology,” among other methods. 28 C.F.R. § 36.303(b).  A similar duty exists under Section 504. 34 C.F.R. § 104.4(b).   See also 34 CFR 104.44(d).

Insert Colker and Grossman, Higher Education at p. 290 before Service Animals.

Are sales and service websites “public accommodations” under Title III of the ADA?

National Federation of the Blind v. Scribd, Inc., Case No. 2:14-cv-162,  2015 U.S. Dist. LEXIS 34213, 2015 WL 1263336 (D. Vt. Mar. 19, 2015) http://the-digital-reader.com/wp-content/uploads/2015/03/30-Opinion-denying-Motion-to-Dismiss.pdf

This opinion is worth reading for its comprehensive overview of the question of whether an entity that conducts business only by the Internet is a “public accommodation” subject to the anti-discrimination protections of Title III of the ADA

Scribd is a California-based digital library that operates reading subscription services on its website and on apps for mobile phones and tablets. Scribd’s customers pay a monthly fee to gain access to its collection of over forty million titles, including e-books, academic papers, legal filings, and other user-uploaded digital documents.

Because its websites are picture-based, they are not accessible to the adaptive technologies commonly used by visually impaired individuals.  These inaccessible conditions formed the basis of a claim by Plaintiffs National Federation of the Blind (“NFB”) and Heidi Viens.

 

Among the required elements of a claim for disability discrimination under Title III of the ADA is that the defendant “owns, leases, or operates a place of public accommodation” Scribd in a motion to dismiss the NFB complaint argued that, because the services and products of Scribd are accessed, selected, and purchased exclusively on the Internet, the NFB had not sufficiently alleged this required claim element.

This dispute was a matter of statutory construction.  Because the district court concluded that the statute (Title III) was “ambiguous” as to the question before it, it needed to consult other sources, including the statute’s legislative history and DOJ guidance, focusing on the “broader context and primary purpose of the statute,” reaching an interpretation that “avoids absurd results.”

The court denied Scribd’s motion to dismiss. Quoting from the Netflix decision of Judge Posner [see last year’s Summer Reading list], the court held that

The Internet is central to every aspect of the “economic and social mainstream of American life.” In such a society, “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.

 

When the motion to dismiss by Scribd was denied, it asked the lower court to stay the action pending an appeal to the Second Circuit.  This would have put discovery and proceedings on the merits of the NFB’s claim in abeyance until the above jurisdictional question was addressed by the Court of Appeals. This motion failed and discovery was ordered to proceed.  Nat’l Fed’n of the Blind v. Scribd Inc., 2015 U.S. Dist. LEXIS 69440 (D. Vt. May 29, 2015).

Cullen v. Netflix, Inc., 600 Fed. Appx. 508, 2015 U.S. App. LEXIS 5257 (9th Cir. Cal. 2015); Earll v. Ebay, Inc., 599 Fed. Appx. 695, 2015 U.S. App. LEXIS 5256 (9th Cir. Cal. 2015).  Respectively, http://law.justia.com/cases/ federal/appellate-courts/ca9/13-15092/13-15092-2015-04-01.html;   http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/04/01/13-15134.pdf

Within one week of the decision in Scribd, the Ninth Circuit issued two very brief, nearly identical, unpublished decisions following earlier Ninth Circuit decisions holding that a website is not a “public accommodation” absent some kind of connection to a brick and mortar facility.  For example, in Cullen, the  Ninth Circuit stated, “We have previously interpreted the statutory term “place of public accommodation” to require “some connection between the good or service complained of and an actual physical place.” See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000). Because Netflix’s services are not connected to any “actual, physical place,” Netflix is not subject to the ADA.” See also National Federation of the Blind v. Target Corporation, 452 F.Supp.2d 946 (ND Cal., 2006).

National Federation of the Blind of California, Kelly, Hingson, and Pederson v. Uber Technologies, Inc., Case No. 14-cv-04086 NC, N.D. Cal (2015)

http://law.justia.com/cases/federal/district-courts/california/candce/ 3:2014cv04086/280572/37/

UberX is a widely available transportation service that uses mobile software applications to arrange rides between passengers and Uber’s fleet of UberX drivers. The National Federation of the Blind of California and several individuals who are blind alleged that Uber drivers, in violation of Title III of the ADA and California disability rights laws, refused them transportation services because they were accompanied by their guide dogs.

Uber filed a motion to dismiss in Federal District Court. The ADA lists twelve categories of entities that are public accommodations.  Uber raised multiple defenses, of interest here, that it was a technology company, not a transportation company, falling outside any of the any of Congress’s examples of a “public accommodation.”

The plaintiffs alleged that Uber’s operations fall under the listed category of “travel service” category, so Uber qualifies as a public accommodation. 42  U.S.C. § 12181(7)(f).

The ADA does not define travel services.  Without much discussion, the court accepted the plaintiffs’ argument.  Quoting from Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 13 (1st Cir. 1994), the court stated, “Congress clearly contemplated that ‘service establishments’ include providers of services which do not require a person to physically enter an actual physical structure.”

An appeal in this matter may be expected.

See also Reyazuddin v. Montgomery County, No. 14-1299, 2015 U.S. App. LEXIS 10032, 2015 WL 3651710 4th Cir. (June 15, 2015). Yasmin Reyazuddin, who is blind, worked successfully for Montgomery County as a 311 operator prior to a workplace consolidation that included the adoption of new software that was not accessible to persons with visual impairments. The County concluded that she was no longer qualified to perform the essential functions of her position and did not transfer her or hire her into a position at the consolidated call center.  Instead, the County retained her salary level and reassigned her to other public contact positions which plaintiff described as “make-work” positions with limited daily tasks and no opportunity for advancement.  She alleged disability discrimination in employment under Section 504 of the Rehabilitation Act and Title II of the ADA on the grounds that, with accommodation, she was qualified to work in the new 311 service setting and that the reassignments provided to her were to “make-work” positions only.

As part of an $80 million upgrade, the County opened a new, consolidated call center using new software.  The software selected by the County can be operated in two “modes,” one of which was accessible to individuals with vision impairments and one of which was not, at least not without a significant work-around.  The County’s software license allows it to run the software in either mode.   The County, however, chose to run only the inaccessible (“high-interactivity”) version which makes some useful but not necessarily essential functions available to operators including: scripts to read to callers; a “solutions button” with a “short, concise paragraph about how the [C]ounty handles” the caller’s particular concern and instructions for employees on how to handle the call; a field for notetaking; a “service request template” with fields that automatically populate; and, a function for transferring calls to 911.

The District Court issued a summary judgment decision in favor of the County concluding that Reyazuddin, even with accommodation, was not qualified to perform the essential functions of a 311 operator at the new call center, that the accommodations she proposed were not reasonable as the County had demonstrated that they would entail an undue burden on the County, and that the County’s reassignment of the Plaintiff had satisfied its reasonable accommodation duties under Section 504.

The Fourth Circuit reversed the lower court finding that several issues remained in genuine dispute: 1) whether Reyazuddin could perform the essential job functions of a call center employee; (2) whether the County reasonably accommodated her; and (3), if the County did not, whether its failure to do so may be excused because the County had proven that her requested accommodations would impose an undue burden on the County.

This decision is rich with a range of employment discrimination issues, particularly ones pertaining to the implementation of emerging technologies.  It is the last issue — how to prove, measure, or calculate what is an undue burden — that may be of most interest to DSS professionals, as the arguments made by the County, accepted by the lower court and,rejected by the Fourth Circuit, are frequently heard in the post-secondary setting.

 

The Fourth Circuit concluded that the lower court had made several errors in its determination of undue burden. The lower court found relevant that the County had only budgeted $15,500 for accommodations.  The Fourth Circuit rejected this reasoning, stating in pertinent part, “Allowing the County to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue [undue burden] to the employer …. Taken to its logical extreme, the employer could budget $0 for reasonable accommodation and thereby avoid liability.  The County’s overall budget ($3.73 billion in fiscal year 2010) and the [new system] operating budget (about $4 million) are relevant factors. But the County’s line-item budget for reasonable accommodations is not.” (citations omitted).

 

The Fourth Circuit further faulted the lower court for not giving nearly enough weight to the fact that four other cities in the U.S., using the same software, are accessible to individuals who are blind by operating in both modes and by providing other modifications.  The Fourth Circuit also concluded that savings gained by the new 311 system and the availability of in-house computer personnel to address accessibility challenges also should be included in the consideration of undue burden.  Finally, the Fourth Circuit found it inappropriate to issue a summary judgment for the County on the issue of undue burden when affidavits of experts provided hugely different estimates as to the effect or cost of running a 311 system using both modes and making the highly interactive mode partially or fully accessible.  The Fourth Circuit reasoned that these differences could only be resolved through further proceedings.

Of note, relying on EEOC guidance, the Fourth Circuit also concluded that the duty to provide accommodation in the workplace through reassignment to a new position means transfer to a “meaningful equal employment opportunity … to attain the same level of performance as is available to nondisabled employees having similar skills and abilities.”  Whether the opportunities provided to Reyazuddin met this standard was also a question that needed to be resolved in further proceedings .

 

Finally, the Fourth Circuit concluded that Title II of the ADA does not confer on public employees the right to sue public employers for employment discrimination.  This is not a unique conclusion.  The same interpretation of Title II has been reached in four other circuits and is the “majority view.”   This conclusion does not impair the claims Reyazuddin has made under Section 504.

 

Stay tuned.  Reyazuddin has been languishing in “make-work” positions since 2009.

 

Insert Colker and Grossman, Higher Education at p. 87 before NOTE 2.

 

 

Disparate Impact Analysis

Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., __ U.S. __, 2014 U.S. LEXIS 4912, 135 S. Ct. 46 (U.S. 2014).

 

In the introductory chapter to The Law of Disability Discrimination for Higher Professionals at page 6, Colker and Grossman present the thesis that a principle step in the legal history of the Section 504 of the Rehabilitation and the ADA was development and adoption of two judicial insights.  The first was that an intention to discriminate was not necessary to a policy or practice having a discriminatory impact on a prohibited basis and that the identical treatment of individuals was not necessarily equal treatment.

The legal tool for attacking policies and practices that are designed without a discriminatory purpose or intent but in fact have a discriminatory effect is called disparate impact analysis. This tool was first used to implement Title VII of the Civil Rights Act of 1964, addressing certain instances of employment discrimination.  Griggs v. Duke Power Co., 401 U.S. 424 (1971).   In 1985, in Alexander v. Choate, the Supreme Court concluded that, under certain circumstances, disparate impact analysis also could be used to challenge disability discrimination where a neutral policy had the effect of denying individuals with disabilities “meaningful access” to a state benefit. 469 U.S. 287, 303.

Historically, statistics have been used as an element of proof in class-wide disparate impact cases.  Just how much persuasive power will be accorded to those statistics has been a matter of dispute, with conservative and liberal judges reaching different perspectives.  Generally, class-wide disparate impact cases that rely heavily on statistics have become more difficult to win.

This issue was front and center before the Supreme Court in a recent race discrimination case concerning interpretation of Title VIII of the Civil Rights Act of 1968, the Fair Housing Act (FHA), Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.   The FHA makes it unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a). The FHA further prohibits discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith,” based on those same protected characteristics. Id. § 3604(b).

The Low-Income Housing Tax Credit Program (LIHTC), 26 U.S.C. § 42(g)(1), provides tax credits to developers who build low-income housing. Federal law requires that credits be distributed through a state agency. In this matter, the plaintiffs case relied largely on statistical proof in asserting that the Texas LIHTC agency disproportionately allocated tax credits for housing construction in minority neighborhoods rather than for predominantly Caucasian neighborhoods.

With a number of cautionary notes, five Justices agreed that the FHA prohibited disparate impact discrimination in a race discrimination case and that a prima facie case of disparate impact discrimination could be established relying largely on statistical proof.  Among the cautionary notes:

  • To make a prima facie case, plaintiffs must not only present statistic evidence of disparate impact but also be able to identify the specific policies and practices of the defendant that caused these disparities.
  • Defendants must be given an opportunity to defend the policies or practices put into question by the statistical showing with any valid interests their policies serve.
  • Disparate impact discrimination does not exist unless the policies or practices in question are “artificial, arbitrary, and unnecessary barriers.”

Finally, the majority recognized that, in some situation, a race conscious remedy may be necessary to rectify disparate impact discrimination based on race.

The ruling in favor of the plaintiffs in this case “saved” the disparate impact theory under various race-based civil rights statutes.  In his dissent, Justice Thomas questioned the correctness of the Griggs decision.   Disability, disparate impact cases are brought under the FHAA, Section 504, or the ADA.   It is possible that the courts might cite this precedent to sustain disparate impact theories if challenged by defendants in disability-related cases.

Insert Colker and Grossman, Higher Education at p. 6.

 

 

Transit

Transit is not often a higher education issue.  An accessible transit system is nonetheless key to students and graduates with mobility impairments becoming productive members of the American workforce.  Last year’s Summer Reading List reported on developments in New York regarding accessible taxi service.

On June 6, 2015, the Department of Justice issued its findings based on its investigation under Title II of the Americans with Disabilities Act (ADA) of AMTRAK (the National Railroad Passenger Corporation). (DJ No. 204-16-128) The investigation was also conducted under the U.S. Department of Transportation’s regulations implementing the ADA, 42 U.S.C. § 12134. . DOJ found that Amtrak discriminated against persons with disabilities in violation of the ADA by failing to make existing station facilities in its intercity rail transportation system accessible. Amtrak also violated the ADA by incorrectly classifying stations as “flag stop” stations, thereby avoiding responsibility to make those station facilities accessible. DOJ determined that Amtrak is  responsible for ADA compliance at 376 stations but only 18 stations are currently compliant. DOJ relied upon Amtrak’s own reports, including a projection that it would make only 19 stations accessible by 2013. Amtrak’s plan to make stations accessible extended to 2028, and even then, not all the stations would be accessible. DOJ is requiring Amtrak to take a wide variety of remedial measures by changing it operations, including making its stations accessible, ensuring independent monitoring and verification, and notice to responsible parties. Other requirements include training and education of staff. An additional remedy requires Amtrak to pay compensatory damages to persons aggrieved in an appropriate amount for injuries caused by Amtrak’s failure to comply with the ADA and its regulations.

 

See discussion above of National Federation of the Blind of California, Kelly, Hingson, and Pederson v. Uber Technologies, Inc., Case No. 14-cv-04086 NC, N.D. Cal (2015).  http://law.justia.com/cases/federal/district-courts/california/ candce/ 3:2014cv04086/280572/37h.

[1]This document is indexed to Colker and Grossman, The Law of Disability Discrimination for Higher Education Professionals.  This book, written for AHEAD members, Disabled Students Service Directors, and their legal advisors is published by Lexis-Nexis. It provides a comprehensive overview of disability anti-discrimination law including legal history, definition of disability, employment discrimination, and an extended chapter on the rights of students with disabilities in higher education.  This book is available through Lexis-Nexis at the following link:

http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=prod20900324

 

[2] The information set forth in this document is presented for informational purposes only and should not be construed as legal advice.   For any legal questions you may have, please consult with counsel for your institution.

Mental Health 101

How common are mental health issues?

Studies have shown that 1 in 4 individuals globally struggle with a mental health issue at any given time. If you expand that to the course of a lifetime, the number increases to 1 in 2. That means if it’s not you who is struggling, it’s someone you know or love.

Why is it important to talk about stigma?

When discussing mental health, two main types of stigma exist. One type is external stigma, which refers to the attitudes held by society that people with mental health issues are somehow lacking, incapable, incompetent, or not worthy of dignified and equitable treatment. The other type is internal stigma, which is the attitude held by the person with mental health challenges that they are unworthy, unlovable, and unvalued.

Stigma does a lot of harm to our society. For the people struggling with a mental health challenge, they often lack hope in recovery and don’t pursue treatment because they either don’t believe they can get better or fear discrimination from others. For those who don’t struggle but hold positions of power (such as law enforcement, educators, landlords, community leaders, etc.), stigma can lead to discrimination, which is the unfair treatment of those with mental health challenges.

Having honest conversations about stigma and sharing our personal stories of recovery are small steps we each can take to making our society more equitable and inclusive.

Is recovery actually possible?

Absolutely! One of the biggest misperceptions in society is that mental health issues are a life sentence.

Recovery means many things to many people and is personal in nature. For some, recovery is the complete absence of symptoms. For others, recovery means successfully managing symptoms as a normal part of life with no disruption to daily activities. Research has shown that even for those with the most serious mental illnesses, the right treatment can have someone living an independent, fulfilling, and successful life.

Does everyone with a mental health diagnosis need medication? What alternatives to medication exist?

It’s a common thought that the only cure to a mental health diagnosis is medication and if one stops taking his or her pills, it’s all downhill from there. While medication works for some people, it is hardly a cure-all. In fact, some medications can have side effects that are more harmful than the symptoms of the mental health challenge!

Deciding to try medication is a personal decision. The good news is that it is not the only option. Research has shown that other types of therapies can be extremely effective in maintaing a person’s level of wellness, including mindfulness, talk therapy, peer support, physical activity, and visual and performing arts, to name a few.

So, do I have to share my mental health issue with the world?

Not unless you want to! Some people are very open about their mental health issues because they value transparency and/or want to be an example of recovery. Others may not feel comfortable because they fear stigma, or simply don’t want the world knowing their personal business. Some may choose to tell family and close friends, but not coworkers or acquaintances. There is no right or wrong answer. You should do what makes you comfortable. If you want to start dialogue around mental health but aren’t quite sure if you’re ready to share your experiences, you can always frame the conversation around wellness, which applies to everyone, diagnosis or not.

What should I do if someone discloses their challenge to me?

Just listen. Providing a supportive ear is the best thing you can do for someone who chooses to open up. It’s not always easy to share something so personal with another human being, so taking a genuine interest and being free of judgment can go a long way and do a lot of good.

Feeling Anxious?

When most people think about anxiety, they picture the typical nervousness folks experience before taking a test at school, or perhaps speaking in public. Their pulse may quicken a bit, their face may feel a bit flushed, they may have “butterflies in their stomach,” but that is about it. It is a temporary feeling, and is generally considered to be a normal human reaction.

For some people though, anxiety rises to the point where a person’s ability to work or lead a normal life is impacted. According to the Centers for Disease Control and Prevention (CDC), in the U.S. the estimated lifetime prevalence of any anxiety disorder is over 15%, while the 12-month prevalence is more than 10%.

For example, if a child is so anxious about going to school that they regularly cannot get out the door on time, it may be time to see a mental health professional.  If a person avoids socializing with friends because the thought of being around people makes them feel lightheaded and nauseous, this may be cause for concern. Worse, if a person feels these sorts of symptoms WITHOUT a triggering event, then a conversation with a medical professional is may be warranted.

There are a number of anxiety disorders including:  generalized anxiety disorder, specific phobia, social anxiety disorder, separation anxiety disorder, agoraphobia, panic disorder, and selective mutism.

Panic Disorder

Let’s take a closer look at Panic Disorder. This disorder is known for the occurrence of “panic attacks” which is when the body’s “fight or flight” response kicks into overdrive, seemingly for no apparent reason. People who experience this describe feelings of imminent death, being unable to breathe properly, having sweaty palms and/or tingling hands or feet, of feeling pain in their chest and the belief that their racing heart will suddenly stop and they will die. In other words, an abject feeling of terror; again, coming on without warning after no apparent triggering event.

Treatment for Anxiety Disorders

There are common medical treatments for anxiety disorders. Medication, such as simple antidepressants like Lexapro or Prozac can be effective. Sometimes, anticonvulsant medicines (typically taken for epilepsy) and low-dose antipsychotic drugs can be utilized in conjunction with antidepressants. Other medications can include benzodiazepines (such as Klonopin, Xanax, Librium, Valium, etc.), or opioids (OxyContin, Vicodin, codeine, morphine, etc.). Care however must be taken, as these sorts of medications can become addictive.

Other, non-pharmacological interventions can be employed as well and include Dialectical Behavior Therapy (DBT), Cognitive Behavioral Therapy (CBT), meditation, mindfulness, breathing exercises, or even yoga. If the person has had a traumatic event in their past which acts as a trigger to their anxiety disorder, there are also therapies which can address and defuse trauma: EFT (Emotional Freedom Technique), EMDR (Eye Movement Desensitization and Reprocessing), art therapy, and even trauma informed yoga. Some folks have even had good results with therapy animals, such as dogs, cats, horses, or even guinea pigs or rabbits. Positive changes in diet and exercise have also proven to be beneficial.

Bottom Line

If you or a loved one is experiencing an anxiety disorder, treatment is readily available.

12 Ways to Be a White Ally to Black People

Michael Brown, an African-American teenager, was shot six times and killed by Darren Wilson, a white police officer, during a stop for jaywalking in Ferguson, Mo. Some facts are uncontroverted: Brown was unarmed when he was shot about 35 feet away from Wilson, who didn’t know that Brown was a suspect in an alleged shoplifting incident that occurred a short time before the shooting. Other facts are disputed: Some people claim that Brown attacked Wilson, and others claim that Brown was running away from Wilson with his hands in the air. Either way, another young black man is dead because of use of excessive force by the police in a situation that did not justify shooting to kill.

Most of us have watched as Ferguson’s black community rose up in outrage against the almost all-white police department, demanding justice and accountability. Our disbelief and heartache turned to collective anger and fear as the response to the protests became more militarized, with the deployment of police dogs, riot gear, tear gas and rubber bullets. And we’ve started speaking out in opposition to these developments, all of which have the hallmarks of being rooted in systemic, institutionalized racism.

Yet some people, especially some white people, have not yet become engaged. Perhaps they don’t know what to say or how to say it or are concerned about backlash from other white people. This is understandable but not acceptable when the continuation of white silence and inaction means the oppression and death of black people.

So let’s talk about an active role for white people in the fight against racism, because racism burdens all of us and is destroying our communities. White people have a role in undoing racism because white people created and, for the most part, currently maintain (whether they want to or not) the racist system that benefits white people to the detriment of people of color.

White people who hate racism should work hard to become white allies. Here are some ways for a white person to become engaged, thoughtfully and critically, in examining the crisis in Ferguson and systemic racism in America.


1. Learn about the racialized history of Ferguson and how it reflects the racialized history of America. Brown’s killing is not an anomaly or a statistical outlier. It is the direct product of deadly tensions born from decades of housing discrimination, white flight, intergenerational poverty and racial profiling.

2. Reject the “He was a good kid” or “He was a criminal” narrative and lift up the “Black lives matter” narrative. Those who knew him say Brown was a good kid. But that’s not why his death is tragic. His death isn’t tragic because he was on his way to college the following week. His death is tragic because he was a human being and his life mattered. The good-kid narrative might provoke some sympathy, but what it really does is support the lie that as a rule black people, black men in particular, have a norm of violence or criminal behavior. The good-kid narrative says that this kid didn’t deserve to die because his goodness was an exception to the rule. This is wrong. This kid didn’t deserve to die, period. Similarly, reject the “He was a criminal” narrative surrounding the convenience store robbery because even if Brown did steal some cigars and have a scuffle with the shopkeeper, that is still not a justification for his killing. All black lives matter, not just the ones we deem to be “good.”

3. Use words that speak the truth about the disempowerment, oppression, disinvestment and racism that are rampant in our communities. Be mindful, and politically and socially aware with your language. Notice how the mainstream news outlets are using words like “riot” and “looting” to describe the uprising in Ferguson. What’s happening is not a riot. The people are protesting with a righteous anger. This is a justified rebellion.

4. Understand the modern forms of race oppression and slavery and how they are intertwined with policing, the courts and the prison-industrial complex.Black people aren’t enslaved on the plantation anymore. Now African Americans are locked up in for-profit prisons at disproportionate rates and for longer sentences for the same crimes committed by white people. And when we’re released we’re second-class citizens, stripped of voting rights in some states and denied access to housing, employment and education. Mass incarceration is the new Jim Crow.

5. Examine the interplay between poverty and racial equity. The twin pillar of racism is economic injustice, but don’t use class issues to trump race issues and avoid the racism conversation. Although racism and class oppression are tangled together in this country, the fact remains that the No. 1 predictor of prosperity and access to opportunity is race.

6. Diversify your media. Be intentional about looking for and paying close attention to diverse voices of color on television, on radio, online and in print to help shape your awareness, understanding and thinking about political, economic and social issues.

7. Adhere to the philosophy of nonviolence as you resist racism and oppression. Martin Luther King Jr. advocated for nonviolent conflict reconciliation as the primary strategy of the civil rights movement and the charge of his “final marching orders.” East Point Peace Academy offers online resources and in-person training on nonviolence that is accessible to all people, regardless of ability to pay.

8. Find support from fellow white allies. Challenge and encourage one another to dig deeper, even when it hurts and especially when you feel confused, angry and hopeless, so that you can be more authentic in your shared journey with people of color to protect principles of anti-racism and equity. Go to workshops like Training for Change’s Whites Confronting Racism or the People’s Institute’s European Dissent. Attend the White Privilege Conference or the Facing Raceconference. Some organizations offer scholarships or reduced fees to help people attend.

9. If you are a person of faith, look to your Scriptures or other holy texts for guidance. Seek out faith-based organizations like Sojourners, and follow faith leaders who incorporate social justice into their ministry. Ask your clergyperson to address anti-racism in sermons and teachings. If you are not a person of faith, learn how the world’s religions view social-justice issues so that when you have an opportunity to invite people of faith to also become white allies, you can talk with them meaningfully about why being a white ally is supported by their spiritual beliefs.

10. Don’t be afraid to be unpopular. If you start calling out all the racism you witness (and it will be a lot, once you know what you’re seeing), some people might not want to hang out with you as much. But think about it like this: Staying silent when you witness oppression is the same as supporting oppression. So you can be the popular person who stands with oppression, or you can be the (maybe) unpopular person who stands for equality and dignity for all people. Which person would you prefer to be?

11. Be proactive in your own community. As a white ally, you are not limited to reacting only when black people are subjected to violence very visibly and publicly. Moments of crisis do not need to be the catalyst. Taking action against systemic racism is always appropriate because systemic racism permeates this country. Some ideas for action: Organize a community conversation about the state of police-community relations in your neighborhood; support leaders of color by donating your time or money to their campaigns or causes; ask the local library to host a showing of, and discussion group about, the documentary Race—the Power of an Illusionattend workshops to learn how to transform conflict into opportunity for dialogue. Gather together white allies who represent the diversity of backgrounds in your community. Anti-racism is not a liberals-only cause. Anti-racism is a movement for all people, whether they are conservative, progressive, rich, poor, urban or rural.

12. Don’t give up. We’re 400 years into this racist system, and it’s going to take decades—centuries, probably—to dismantle. The anti-racism movement is a struggle for generations, not simply the hot-button issue of the moment. Transformation of a broken system doesn’t happen quickly or easily. You may not see or feel the positive impact of your white allyship during the next month, the next year, the next decade or even your lifetime. But don’t ever stop. Being a white ally matters because you will be part of what turns the tide someday. Change starts with the individual.

People of color cannot and should not shoulder the burden for dismantling the racist, white-supremacist system that devalues and criminalizes black life without the all-in support, blood, sweat and tears of white people. If you are not already a white ally, now is the time to become one.

Editor’s note: A version of this article was previously published at What Matters.

101 Fantastic Ideas for Students when Feeling College is TOO MUCH

I think that, for most of us, there are times in life when it all just feels like Too Much. Can you say #SelfCare?

There may be some days, weeks, months, maybe even years when — for whatever reason — just getting through the day or going to work or putting one foot in front of the other feels hard. Really, really hard.


Maybe it’s because you’re wrestling with anxiety, depression, or some other mental illness.

Maybe it’s because you’ve had your heart broken. Maybe you’ve gone through a physical or emotional trauma. Maybe you’re deeply grieving. Or maybe there’s no easily understood reason for why you’re feeling bad.

Whatever the case, I want you to know that it’s OK if you’re going through a tough time.

This doesn’t make you any less lovable, worthy, or capable. This just means you’re human. Being a human can be a messy, hard, confusing, painful experience sometimes.

So if you or someone you love is going through one of these tough times right now, a time where it all just feels like too much, I want to offer up 101 suggestions for self-care to help you or your loved one get through this time.

Photo via iStock.

1. Have a good, long, body-shaking cry.

2. Call a trusted friend or family member and talk it out.

3. Call in sick. Take comp time if you can. Take a mental health day.

4. Say no to extra obligations, chores, or anything that pulls on your precious self-care time.

5. Book a session (or more!) with your therapist.

6. Dial down your expectations of yourself at this time. When you’re going through life’s tough times, I invite you to soften your expectations of yourself and others.

7. Tuck yourself into bed early with a good book and clean sheets.

8. Watch a comforting/silly/funny/lighthearted TV show or movie. (“Parks and Recreation,” anyone?)

9. Reread your favorite picture and chapter books from childhood.

10. Ask for some love and tenderness from your friends on social media. Let them comment on your post and remind you that you’re loved.

11. Look at some some really gorgeous pieces of art.

12. Watch YouTube videos of Ellen DeGeneres and the adorable kids she has on her show.

13. Look at faith-in-humanity-restoring lists from around the internet.

14. Ask for help. From whomever you need it — your boss, your doctor, your partner, your therapist, your mom. Let people know you need some help.

15. Wrap yourself up in a cozy fleece blanket and sip a cup of hot tea.

16. Breathe. Deeply. Slowly. Four counts in. Six counts out.

17. Hydrate. Have you had enough water today?

18. Eat. Have you eaten something healthy and nourishing today?

19. Sleep. Have you slept seven to nine hours? Is it time for some rest?

20. Shower. Then dry your hair and put on clothes that make you feel good.

21. Go outside and be in the sunshine.

22. Move your body gently in ways that feel good. Maybe aim for 30 minutes. Or 10 minutes if 30 feels like too much.

23. Read a story (or stories) of people who overcame adversity or maybe dealt with mental illness, too. (I personally admire J.K. Rowling’s story.)

24. Go to a 12-step meeting. Or any group meeting where support is offered. Check out church listings, hospital listings, or school listings, for example.

25. If you suspect something may be physiologically off with you, go see your doctor and/or psychiatrist and talk to them. Medication might help you at this time, and professionals can assist you in assessing this.

26. Take a long, hot bath. Light a candle and pamper yourself.

27. Read inspirational quotes.

28. Cuddle someone or something. Your partner. A pillow. Your friend’s dog.

29. Read previous emails, postcards, letters, etc. from friends and family reminding you of happier times.

30. Knit. Sculpt. Bake. Engage your hands.

31. Exhaust yourself physically — running, yoga, swimming, whatever helps you feel fatigued.

32. Write it out. Go free-form in a journal or on a computer. Get it all out and vent.

33. Create a plan if you’re feeling overwhelmed. List out what you need to do next to tackle and address whatever you’re facing. Chunk it down into manageable and understandable pieces.

34. Remind yourself you only have to get through the next five minutes. Then the next five. And so on.

35. Take five minutes to meditate.

36. Write out a list of 25 reasons you’ll be OK.

37. Write out a list of 25 examples of things you’ve overcome or accomplished.

38. Write out a list of 25 reasons you’re a good, lovable person.

39. Write out a list of 25 things that make your life beautiful.

40. Sniff some scents that bring you joy or remind you of happier times.

41. Ask for support from friends and family via text if voice-to-voice contact feels like too much. Ask them to check in with you via text daily or weekly, whatever you need.

42. Lay down on the ground. Let the Earth or floor hold you. You don’t have to hold it all on your own.

43. Clean up a corner of a room of your house. Sometimes tidying up can help calm our minds.

44. Ask yourself: What’s my next most immediate priority? Do that that. Then ask the question again.

45. Read some poetry. RumiHafiz, and Mary Oliver are all excellent.

46. Take a tech break. Delete or deactivate social media if it feels too triggering right now.

47. Or maybe get on tech. If you’ve been isolating, maybe interacting with friends and family online might feel good.

48. Go out in public and be around others. You don’t have to engage, but maybe sit in a coffee shop or on a bench at a museum and soak up the humanity around you.

49. Or if you’re feeling too saturated with contact, go home. Cancel plans and tend to the introverted parts of yourself.

50. Ask friends and family to remind you that things will be OK and that what you’re feeling is temporary.

51. Put up some Christmas lights in your bedroom. They often make things more magical.

52. Spend a little money and treat yourself to some self-care and comfort. Maybe take a taxi versus the bus. Buy your lunch instead of forcing yourself to pack it. Buy some flowers that delight you.

53. Make art. Scribble with crayons. Splash some watercolors. Paint a rock. Whatever. Just create something.

54. Go wander around outside in your neighborhood and take a look at all the lovely houses and the way people decorate their gardens. Delight in the diversity of design.

55. Go visit or volunteer at your local animal rescue. Pet some animals.

56. Look at photos of people you love. Set them as the wallpaper of your phone or laptop.

57. Create and listen to a playlist of songs that remind you of happier times.

58. Read some spiritual literature.

59. Scream, pound pillows, tear up paper, shake your body to move the energy out.

60. Eat your favorite, most comforting foods.

61. Watch old “Mister Rogers’ Neighborhood” videos online.

62. Turn off the lights, sit down, stare into space, and do absolutely nothing.

63. Pick one or two things that feel like progress and do them. Make your bed. Put away the dishes. Return an email.

64. Go to a church or spiritual community service. Sit among others and absorb any guidance or grace that feels good to you.

65. Allow yourself to fantasize about what you’re hoping or longing for. There are clues and energy in your reveries and daydreams that are worth paying attention to.

66. Watch autonomous sensory meridian response videos to help you calm down and fall asleep at night.

67. Listen to monks chantingsinging Tibetan bowls, or nature sounds to help soothe you.

68. Color in some coloring books.

69. Revisit an old hobby. Even if it feels a little forced, try your hand at things you used to enjoy and see what comes up for you.

70. Go to the ocean. Soak up the negative ions.

71. Go to the mountains. Absorb the strength and security of them.

72. Go to the forest. Drink in the shelter, life, and sacredness of the trees.

73. Put down the personal help books and pick up some good old-fashioned fiction.

74. Remember: Your only job right now is to put one foot in front of the other.

75. Allow and feel and express your feelings — all of them! — safely and appropriately. Seek out help if you need support in this.

76. Listen to sad songs or watch sad movies if you need a good cry. (“Steel Magnolias,” anyone?)

77. Dance around wildly to your favorite, most cheesy songs from your high school years.

78. Put your hands in dirt. If you have a garden, go garden. If you have some indoor plants, tend to them. If you don’t have plants or a garden, go outside. Go to a local nursery and touch and smell all the gorgeous plants.

79. If you want to stay in bed all day watching Netflix, do it. Indulge.

80. Watch or listen to some comedy shows or goofy podcasts.

81. Look up examples of people who have gone through and made it through what you’re currently facing. Seek out models of inspiration.

82. Get expert help with whatever you need. Whether that’s through therapy, psychiatry, a lawyer, clergy, or something else, let those trained to support you do it.

83. Educate yourself about what you’re going through. Learn about what you’re facing, what you can expect to feel, and how you can support yourself in this place.

84. Establish a routine and stick to it. Routines can bring so much comfort and grounding in times of life that feel chaotic or out of control.

85. Do some hardcore nesting and make your home or bedroom as cozy and beautiful and comforting as possible.

86. Get up early and watch a sunrise.

87. Go outside, set up a chair, and watch the sunset.

88. Make your own list of self-soothing activities that engage all five of your senses.

89. Develop a supportive morning ritual for yourself.

90. Develop a relaxing evening ritual for yourself.

91. Join a support group for people who are going through what you’re going through. Check out the listings at local hospitals, libraries, churches, and universities to see what’s out there.

92. Volunteer at a local shelter or hospital or nursing home. Practice being of service to others who may also be going through a tough time.

93. Accompany a friend or family member to something. Even if it’s just keeping them company while they run errands, sometimes this kind of contact can feel like good self-care.

94. Take your dog for a walk. Or borrow a friend’s dog and take them for a walk.


This kangaroo dog loves walks.

95. Challenge your negative thinking.

96. Practice grounding, relaxation techniques.

97. Do something spontaneous. Walk or drive a different way to work. Order something new off the menu. Listen to a playlist of new songs.

98. Work with your doctor, naturopath, or nutritionist to develop a physical exercise plan and food plan that will be supportive to whatever you’re facing right now.

99. Pray. Meditate. Write a letter to God, the universe, the Source, your higher self — whatever you believe in.

100. As much as you can, try and trust the process.

101. Finally, remember, what you’re going through right now is temporary. It may not feel like that from inside the tough time you’re in, but this too shall pass and you will feel different again someday. If you can’t have faith in that, let me hold the hope for you.

This list is really just a starting point meant to catalyze your own thinking about how you can best take care of yourself during life’s tough times and to spark your curiosity and interest in strengthening your self-care now and ongoing.

It’s not meant to be prescriptive nor do I mean to imply you need to do all or any of these things to take good care of yourself. You are the expert of your own experience, and I trust that you know what’s best for you.

Also, my hope is that in reading this, you’re hearing me say how normal and natural it is to struggle and to have these tough, hard times. It’s part of being human.

You’re not alone in this.

The suggestions and ideas mentioned herein— in no way are a substitute for care or advice from a licensed mental health care clinician, doctor, or other accredited professional. These are self-care coaching suggestions, not therapeutic advice. Moreover, if you feel suicidal or find yourself having suicidal ideations, call the 24/7 National Suicide Prevention Lifeline at 800-273-8255.