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.”


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.


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.”


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.’”


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 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  [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 (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 (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.




Grabin v. Marymount Manhattan College, 2014 U.S. Dist. LEXIS 79014, 2014 WL 2592416 (S.D.N.Y. June 10, 2014).


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).

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 (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.


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.  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 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.”



Cottrell v. Norman, 2014 U.S. Dist. LEXIS 101645, 2014 WL 3729215 (D.N.J. July 25, 2014).


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).

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]




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). 

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 (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)

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)


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).

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 settlement    Litigation not filed

A settlement agreement between the Department of Justice and edX, resolves allegations by DOJ that edX’s website,, 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).

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.

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)

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, federal/appellate-courts/ca9/13-15092/13-15092-2015-04-01.html;

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) 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 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). 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:


[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.

Racism’s Emotional Toll on Student Minds

Our screens and feeds are filled with news and images of black Americans dying or being brutalized. A brief and yet still-too-long list: Trayvon MartinTamir RiceWalter ScottEric GarnerRenisha McBride. The image of a white police officer straddling a black teenager on a lawn in McKinney, Tex., had barely faded before we were forced to grapple with the racially motivated shooting in Charleston, S.C.

I’ve had numerous conversations with friends and colleagues who are stressed out by the recent string of events; our anxiety and fear is palpable. A few days ago, a friend sent a text message that read, “I’m honestly terrified this will happen to us or someone we know.” Twitter and Facebook are teeming with anguish, and within my own social network (which admittedly consists largely of writers, academics and activists), I’ve seen several ad hoc databases of clinics and counselors crop up to help those struggling to cope. Instagram and Twitter have become a means to circulate information about yoga, meditation and holistic treatment services for African-Americans worn down by the barrage of reports about black deaths and police brutality, and I’ve been invited to several small gatherings dedicated to discussing these events. A handful of friends recently took off for Morocco for a few months with the explicit goal of escaping the psychic weight of life in America.

It was against this backdrop that I first encountered the research of Monnica Williams, a psychologist, professor and the director of the University of Louisville’s Center for Mental Health Disparities. Several years ago, Williams treated a “high-functioning patient, with two master’s degrees and a job at a company that anyone would recognize.” The woman, who was African-American, had been devastated by racial harassment by a director within her company. Williams recalls being stunned by how drastically her patient’s condition deteriorated as a result of the treatment. “She completely withdrew and was suffering from extreme emotional anxiety,” she told me. “And that’s what made me say, ‘Wow, we have to focus on this.’ ”

In a 2013 Psychology Today article, Williams wrote that “much research has been conducted on the social, economic and political effects of racism, but little research recognizes the psychological effects of racism on people of color.” Williams now studies the link between racism and post-traumatic stress disorder, which is known as race-based traumatic stress injury, or the emotional distress a person may feel after encountering racial harassment or hostility. Although much of Williams’s work focuses on individuals who have been directly targeted by racial discrimination or aggression, she says race-based stress reactions can be triggered by events that are experienced vicariously, or externally, through a third party — like social media or national news events. She argues that racism should be included as a cause of PTSD in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (D.S.M.).

Williams is in the process of opening a clinical program that will exclusively treat race-based stress and trauma, in a predominantly black neighborhood in Louisville. Shortly after the Charleston shooting, I called Williams to discuss her work; what follows is a lightly edited and condensed transcript of our conversation.

What is race-based stress and trauma?

It’s a natural byproduct of the types of experiences that minorities have to deal with on a regular basis. I would argue that it is pathological, which means it is a disorder that we can assess and treat. To me, that means these are symptoms that are a diagnosable disorder that require a clinical intervention. It goes largely unrecognized in most people, and that’s based on my experience as a clinician.

What are the symptoms?

Depression, intrusion (the inability to get the thoughts about what happened out of one’s mind), vigilance (an inability to sleep, out of fear of danger), anger, loss of appetite, apathy and avoidance symptoms and emotional numbing. My training and study has been on post-traumatic stress disorder for a long time, and the two look very much alike.

Over the weekend, I received several distressing emails and texts from friends who were suffering from feelings of anxiety and depression. Do you think we should all be in treatment?

I think everyone could benefit from psychotherapy, but I think just talking to someone and processing the feelings can be very effective. It doesn’t have to be with a therapist; it could be with a pastor, family, friends and people who understand it and aren’t going to make it worse by telling you to stop complaining.

What do you think about the #selfcare hashtags on social media and the role of “Black Twitter” as resources for people who may not have the resources they need to help process this? Are online interactions like that more meaningful than they initially might seem?

Online communities such as — can be a great source of support, of course — with the caveat that even just one hater can be stressful for everyone, and that’s the danger of it. But if you don’t have a friend or a family member, just find someone who is sensitive and understanding and can deal with racial issues.

In our initial email about the ripple effects of the murders in Charleston, you used the phrase “vicarious trauma.” What does that mean?

Because the African-American community has such a long history of pervasive discrimination, something that impacts someone many miles away can sometimes impact all of us. That’s what I mean by vicarious traumatization.

Is racial trauma widely recognized as a legitimate disorder?

The trauma of events like this is not formally recognized in the D.S.M. It talks about different types of trauma and stress-related ailments, but it doesn’t say that race trauma can be a factor or a trigger for these problems. Psychiatrists, unless they’ve had some training or personal experience with this, are not going to know to look for it and aren’t going to understand it when they see it. In order for it to be recognized, we have to get a good body of scientific research, a lot of publications in reputable peer-reviewed journals. Right now, there’s only been a few. And we need to produce more.

On your blog, you chronicled the experience of a woman who encounters a therapist who dismisses her fears about racism. Is one barrier to treatment getting the medical community to acknowledge that racism exists?

Yes. A lot of people in the medical community live very privileged lives, so racism isn’t a reality to them. When someone comes in and talks to them, it might sound like a fairy tale, rather than a real daily struggle that people are dealing with. Research shows that African-Americans, for example, are optimistic when they start therapy, but within a few sessions feel less optimistic and have high early dropout rates. It could be that clinicians don’t know how to address their problems, or they may even be saying things that are subtly racist that may drive their clients away. If the patient feels misunderstood or even insulted by the therapist and they don’t go back and get help, they end up suffering for years or even the rest of their lives for something that is very treatable.

Is there a recommended model for treatment?

We have great treatments that are empirically supported for trauma, but the racial piece hasn’t really been studied very well. That’s no easy task, because when we write these articles, they go to journals, where an editor looks at it and decides if it’s worthy and applicable to go in the journal. And then it goes to reviewers who decide if it’s a worthy and applicable topic.

Why has it taken so long to get momentum?

If you think about it, they weren’t even letting black people get Ph.D.s 30 years ago in a lot of places. Ethnic minority researchers are the ones who are carrying the torch, by and large. We’re only to the place now where we have enough researchers to do the work. And there’s so much work that needs to be done.

Checkout our handout for more information on coping with trauma. 

Poetry Addressing Racism and Black American Identity

Here’s some poetry that could also be healing for students addressing racism and Black American Identity:


1. A Litany for Survival” by Audre Lorde

So it is better to speakrememberingwe were never meant to survive




So it is better to speak


we were never meant to survive

2. The Last Quatrain of the Ballad of Emmett Till” by Gwendolyn Brooks

after the murder,

after the burial

Emmett’s mother is a pretty-faced thing;

the tint of pulled taffy.

3. Cordon Negro” by Essex Hemphill

I’m dying twice as fast

as any other American

between eighteen and thirty-five

This disturbs me,

but I try not to show it in public.

4. Where Do You Enter” by Nikki Giovanni

We begin a poemwith longingand end withresponsibilityAnd laugh all through the stormsthat are boundto come

Pictorial Parade / Getty Images


We begin a poem

with longing

and end with


And laugh

all through the storms

that are bound

to come

5. Lineage” by Margaret Walker

My grandmothers are full of memories

Smelling of soap and onions and wet clay

With veins rolling roughly over quick hands

They have many clean words to say.

My grandmothers were strong.

Why am I not as they?

6. The Night Rains Hot Tar” by Lance Jeffers

The night rains hot tar into my throat,

the taste is good to my heart’s tongue,

into my heart the night pours down its moon

like a yellow molten residue of dung:

the night pours down the sea into my throat

my heart drains off its blood in love and pain:

the night pours a Negro song into my throat,

bloodred is the color of this rain:

7. Bullet Points” by Jericho Brown

I will not shoot myselfIn the head, and I will not shoot myselfIn the back, and I will not hang myselfWith a trashbag, and if I do,I promise you, I will not do it In a police car while handcuffed

Amazon / Via



I will not shoot myself

In the head, and I will not shoot myself

In the back, and I will not hang myself

With a trashbag, and if I do,

I promise you, I will not do it

In a police car while handcuffed

8. ” A Small Needful Fact” by Ross Gay

Is that Eric Garner worked

for some time for the Parks and Rec.

Horticultural Department, which means,

perhaps, that with his very large hands,

perhaps, in all likelihood,

he put gently into the earth

some plants which, most likely,

some of them, in all likelihood,

continue to grow,

9. Black Lady Lazarus” by Diamond Sharp

Dying is an art and we Black girls do it so well.

Sandra &

Aiyana &

Rekia &

10. If It Is The Summer Of 2009” by Hanif Abdurraqib

…we revel in long enough to forget

that we are black in our 20’s which is to say that we are too old

for this shit

and by this shit I of course mean living

I of course mean that we have carried the lifeless bodies of enough younger brothers to never forget that we should be dead by now

we should have the decency to unburden America

by our dying on the side of a cracked road

11. praise song” by Nate Marshall

praise the Hennessy, the brown shine, the dull burn. praise the dare, the take it, the no face you’re supposed to make.praise the house, its many rooms,hardwood and butter leather couches;its richness. praise the rich, their friendship.praise the friends: the child of the well off,the child of the well off, the child of  well,the child of welfare, the child of welfare.

Amazon / Via


praise the Hennessy, the brown

shine, the dull burn. praise

the dare, the take it, the no face

you’re supposed to make.

praise the house, its many rooms,

hardwood and butter leather couches;

its richness. praise the rich, their friendship.

praise the friends: the child of the well off,

the child of the well off, the child of  well,

the child of welfare, the child of welfare.

12. What They Did Yesterday Afternoon” by Warsan Shire

later that night

i held an atlas in my lap

ran my fingers across the whole world

and whispered

where does it hurt?

it answered




13. Self-Portrait In Case of Disappearance” by Safia Elhillo

girls with fathers gone or gone missing

sistered to dark boys marked to die & our own

bodies scarved & arranged in rows on prayer mats

we go missing too & who mourns us who

falls into the gap we leave in the world

14. Elegy” by Aracelis Girmay

What to do with this knowledge
that our living is not guaranteed?

Perhaps one day you touch the young branch

of something beautiful. & it grows & grows

despite your birthdays & the death certificate,

& it one day shades the heads of something beautiful

or makes itself useful to the nest. Walk out

of your house, then, believing in this.

Nothing else matters.

15. Gravity” by Angel Nafis

After Carrie Mae Weems’s ‘The Kitchen Table Series’


Can you throw this away Maybe you should hire more Black staff
Where are you really from You’re not busy are you You look ethnic today
Where’s the African American section Can you turn the music down
Fasterfasterfaster Let me see those eyes Beautiful If you were mine
I’d never let you leave the house It’s like you went straight to Africa
to get this one Is that your hair I mean your real hair Blackass
Your gums are black You Black You stink You need a perm
I don’t mean to be

16. Let Me Handle My Business, Damn” by Morgan Parker

Took me awhile to learn the good words

make the rain on my window grown

and sexy now I’m in the tub holding down

that on-sale Bordeaux pretending

to be well adjusted I am on that real

jazz shit sometimes I run the streets

sometimes they run me I’m the body

of the queen of my hood filled up

with bad wine bad drugs mu shu pork

sick beats what more can I say to you

17. Summer, Somewhere” by Danez Smith

no need for geographynow that we’re safe everywhere.point to whatever you please& call it church, home, or sweet love.paradise is a world where everythingis a sanctuary & nothing is a gun.

Courtesy of / Via


no need for geography

now that we’re safe everywhere.

point to whatever you please

& call it church, home, or sweet love.

paradise is a world where everything

is a sanctuary & nothing is a gun.

“Smiley” Depression

Staff Reports—


When many people think of depression, they often think of sadness — and not much else. This generalization can be harmful to people who experience depression, but may not “look” depressed. For some, depression may look like sadness or exhaustion. For others, depression might look like a smiling face, or a person who “has it all together” — something we think of as “smiling depression.”

It’s important to remember every person’s experience of depression needs to be taken seriously, no matter what it looks like on the outside.2 We wanted to know things only people with “smiling depression” understand, so we asked members of our mental health community to weigh in.

Here’s what they shared with us:

  1. “It’s easier to cheer people up but not myself. I can make them feel great when they’re going through the worst [times], but I cannot get myself happy, really happy. That happiness you see is just a way of not letting people [see] my problems.” — Sofia V.
  2. “I am so tired. So, so tired, all of the time. It doesn’t matter if I’m sitting and pouting or smiling and engaging. [It doesn’t matter if I’m] dancing, running, swimming, eating, brushing my teeth, by myself or in a room full of people or sleeping. I. Am. Exhausted.” — Rinna M.
“Other people don’t get it. What it’s like to feel so trapped and in darkness, because I appear ‘happy’ and strong — even though [it feels like] I’m slowly dying.”
— Nicole G.
  1. “[I] fake it because [I believe] no one wants to hear about [my] depression. [I] fake it because [I am] tired of hearing all the ‘expert’ advice insinuating that [I’m] just [not] trying hard enough.” — Lisa C.
  2. “[I] don’t always wear the mask for other people. Sometimes [I] wear it because [I] don’t want to believe [I] feel as miserable as [I do]. [For me], it isn’t always about making other people with [me feel] OK. Sometimes it’s wearing the mask so [I] don’t lose [my] job or so [I] can just get takeout without being asked what’s wrong.” — Melinda A.
  3. “I can still laugh and give a big belly laugh about things, but on the inside, I feel empty. It’s a weird feeling being happy as much as you can, but your mind won’t follow suit. [I] just feel empty and the happiness isn’t genuine. It’s fake but [I] can’t change that no matter how hard [I] try for it to be a real feeling. Depression drains everything out of me. It takes an enormous amount of strength to appear ‘normal,’ it exhausts me… [My] smile doesn’t reach [my] eyes.” — Rebecca R.
  4. “The problem lies in the fact that no one truly and honestly knows me. I feel like I’m alone every day — even when I’m surrounded by people.” — Jen W.
  5. “[I] constantly doubt whether [my] struggles are real. When [I] finally get the courage and strength to open up about [my] depression, [I] always hear, ‘But you don’t act like you have depression.’ It took me years to come to terms and believe my own struggles.” — Adrianna R.
  6. “Most days, I feel like I’m just barely surviving. Once I’m alone at the end of the day, all I have the energy for is crying. Crying because I’m just so exhausted with life and I’ll convince myself I can’t handle tomorrow and I need to call in sick. But when the next day actually comes, I’m too afraid to not show up. Eventually, after debating with myself for far longer than I should, I drag myself out of bed. The cycle [feels] never-ending. It’s like, if I choose one day to just stay in bed instead of getting up, it would be the most horrible thing in the world, so I eventually always get up, no matter how exhausted I am. It’s inevitable.” — Keira H.
  7. “I try to keep up appearances to protect my family because my depression upsets them. I’m not very outwardly emotional, so everything gets to me more than I show it. I can’t open up to them, because I just get told, ‘Change your thoughts,’ ‘You seem fine, why do you want to go to a therapist?’ It makes those times when I can’t control my emotions even worse. I feel alone, tired and lost.” — Jessica C.
  8. “Sometimes I really, like really want to show people how I’m really feeling, but I just physically cannot take the mask off. It’s like the walls just grow stronger the more I try to tear them down.” — Kira H.
  9. “[I thought] if I faked being happy enough, then maybe I could get a glimpse of what it’s like to be ‘normal.’ I always feel like such a burden on the people [who] love me. [I feel] I have no choice but to pretend.” — Bree N
  10. “The time I’m most encouraging to myself is when I’m telling myself, I can make them laugh so they never suspect anything! I’m funny, right?” — Shelby S
  11. “The physical pain as well as the emotional pain. It hurts to walk, get up, move, force [myself] to smile, try to look ‘normal,’ happy.” — Keara M.
  12. “[ I believe] we are the best actors in the world. Because if I have to explain depression one more time… it’s just easier to fake it until I get home.” — Lisa K.


If you or someone you know needs help, visit our suicide prevention resources page.

If you need support right now, call the National Suicide Prevention Lifeline at 1-800-273-8255 or text “START” to 741-741.