UC Settlement RE: Services to D/HOH Students raises concerns


UC SETTLEMENT RE: SERVICES TO D/HOH STUDENTS RAISES CONCERNS (OR SHOULD!!!)
DAIS Newsletter, Volume VI, No. 11

The big news this month from the legal front has been the announcement of a settlement in a class-action suit brought by deaf/hard-of-hearing students against (specifically) the University of California at Berkeley and the University of California at Davis. I was preparing a piece that said essentially, “This is a single settlement that is not legally binding on any other institutions. No big deal!” when I had an interesting conversation with a colleague that persuaded me to think again. I am now convinced that there are lessons to be learned — and dangers inherent — in this settlement.

The Facts
First, let’s review the facts. The suit was originally brought by a single student (Siddiqi) and was eventually joined by four other students representing a class of students who are deaf and hard-of-hearing who have been enrolled at the UC-Berkeley and -Davis campuses over the last several years. In reading through the settlement, it is difficult to tell whether the problems noted by plaintiffs and addressed by the court (and through the settlement) were present at BOTH campuses, or only one. It seems likely to me that one campus was engaging in practice a, b, c and that the other was engaging in practice d, e, f (since we know that practices are VERY likely to differ with the setting, institutional organization, staffing, etc.). However, by combining the suit against the two institutions, it becomes impossible (in reading the settlement) to sort out who was doing what. All that remains is an agreement on the part of BOTH institutions to proceed differently in the future.

I have read through the LENGTHY settlement agreement with as critical an eye as I can without having all the facts available. I am comfortable in saying that the institutions involved did nothing blatantly discriminatory in their treatment of deaf/hard-of-hearing students. They didn’t flatly refuse service or consciously exclude anyone from participation. Rather, the practices they were cited for, and which presumably led them to this settlement, were practices that were arranged for the convenience of the institution in organizing and overseeing services to this population. Sometimes, institutional convenience came at the expense of full access for students who were deaf/hard-of-hearing.

There is much made in the written agreement of the fact that no matter how good the case or how eloquent the presentation, complex issues that hinge on whose expert is to be believed may often be lost in trial. Knowing that litigation was likely to be protracted and expensive, but with no clear cut “winner” in sight, both sides chose to arbitrate an agreement at this point in time. The agreement stresses that the UC schools do not admit to any wrongdoing and that either side might have prevailed if the case had gone forward. So why did they settle?

As I look through the agreement, it seems to me that there were three pieces of institutional practice that resulted in limiting the access of students who are deaf/hard-of-hearing, and that the institutions would have lost if they had chosen to pursue the case further. My best guess (and it is only a guess) is that someone who understood the situation took a long look at those pieces and advised the institution that they would, in the end, lose and that they might as well agree to necessary changes now as later.

  • They had a “three-strikes” policy regarding interpreting services (remember, “they” means the plaintiffs collectively — we can’t tell whether any of these issues were true for one campus or the other or both); if a deaf student failed to appear and failed to give adequate notice three times, interpreter services were withdrawn.
  • They sometimes ignored the request from students for the preference of accommodation they chose; students who requested real-time captioning were sometimes provided interpreters instead (presumably because interpreters were either easier or cheaper to come by).
  • They had a system in place that required deaf/hard-of-hearing students to request interpreters for extra-curricular activities directly from the unit on campus sponsoring the event. Since it was not uncommon for organizers in the far-flung campus community to be ineffective in the provision of quality interpreting in these situations, the result was that deaf/hard-of-hearing students were often excluded from participation.

THOSE are the issues that I would guess led them to settlement, and THOSE are practices that (in my opinion) needed to be changed. However, the settlement agreement is not limited to changes in these three areas:

  • They have agreed that they will no longer terminate interpreter services for deaf/hard-of-hearing students in the event of “no-shows”
  • They have agreed that they will give primary consideration to the preference of the deaf/hard-of-hearing user in arranging auxiliary aids and services, rather than substituting their own judgment as to what would constitute reasonable access to communication. Based on individual assessment of need, students may be provided with a combination of services (such as real-time captioning and interpreters). Students using real-time captioning are given the option of receiving the transcripts from captioning
  • They have agreed that deaf/hard-of-hearing students will be able to receive interpreter services directly from the DSS office for extracurricular activities instead of having to go through the sponsoring campus unit
  • They have agreed that they will not adhere to a strict “48-hour advance notice required” policy to the exclusion of making significant attempts to provide interpreters with less notice, as well as making every effort to have back-up systems in place should a service provider be unavailable at the last minute
  • They have agreed to provide auxiliary aids and services for deaf/hard-of-hearing students participating in study abroad programs
  • They have agreed to install additional TDD’s and assistive listening devices around campus and to form a panel to examine the safety/evacuation procedures in place as they affect deaf/hard-of-hearing students
  • They have agreed that interpreters will not leave after 10 minutes if there is any reason to believe a student is still on his/her way to class, and that the length of time to wait even without notice will be longer
  • They have agreed to provide training to assure that notetakers are prepared to take effective and complete notes for deaf/hard-of-hearing students utilizing the service
  • They have agreed that videos shown on campus (curricular and extra-curricular) shall, with very few exceptions, be screened with captions on, in order to provide full access for deaf/hard-of-hearing students

The settlement agreement also speaks to ongoing monitoring of the provision of services, attorney’s fees, and a promise that the institution will not engage in retaliation against those who brought the suit.

It should be remembered that these changes were not an edict from the court, but part of an agreed-upon settlement. Moreover, a settlement is only binding upon the parties involved (in this case, ONLY UC-Berkeley and Davis). I spoke to someone who suggested that much of what appeared in the settlement was “window-dressing.” That is, the settlement simply spells out on paper a series of changes that have been implemented and practices that are already in place at the institutions in question. While I am sure that is true — that the campuses LONG SINCE moved to alleviate the concerns addressed here — there are parts of this settlement agreement that I fear may prove problematic for the rest of us!

WHAT DSS PROVIDERS/ADMINISTRATORS CAN LEARN FROM THIS SETTLEMENT

As noted above, I think there were three practices in which the plaintiffs (one? the other? both?) were following that NEEDED to be changed and that should prove instructive to DSS providers and administrators:

  • YOU CANNOT WITHDRAW SERVICES (for failure to perform/cooperate) IF SERVICES ARE NECESSARY IN ORDER TO ASSURE EQUAL ACCESS. It surprised me to see in the settlement agreement that either of the institutions involved had actually engaged in such practice. It is still somewhat unclear if they had actively withdrawn services, or simply threatened to do so. While the facts here are unclear, the message to the rest of us is plain. The provision of (in this case) interpreter services is NOT a privilege, but a right, if such is needed for full access. You cannot withdraw/terminate/cancel such services because the student has “abused the privilege” or even if the student has failed to follow their obligations in providing appropriate notice of the need to cancel the interpreter. NOTE that the agreement speaks only to a prohibition on terminating services, NOT to the possibility of suspending services until such time as the rules are reviewed. Standard practice is often to have a system in place that says, “if you fail to show up and/or cancel services with appropriate notice, your interpreting services will be suspended until such time as you contact the DSS office to review the actions necessary on your part in such circumstances.” In the vernacular, you can’t cut ’em off, but you can make ’em sweat! I see nothing in this agreement that suggests that such a policy would be a problem. The reprimand and the promise of change deal specifically with the termination/cancellation of services. (As an extension, it seems to me this is instructive for those who engage in the perennial argument as to whether or not you can withdraw testing accommodations from a student found cheating on a test.)
  • IN ASSIGNING APPROPRIATE ACCOMMODATIONS, THE PREFERENCE OF THE USER MUST BE GIVEN PRIMARY CONSIDERATION. Words to this effect come straight out of Title II of the ADA, and should be considered good practice in any setting. This does not mean that students always get whatever they ask for, but it DOES mean that if you are preparing to offer an alternative to their method of choice, you had best be prepared to justify that decision. YOU, as service provider, are not in a better position to judge what will provide effective access for the student than is that student himself/herself. Aside from the real-time/interpreter issue at stake here, another PRIME example would be the service provider who would LIKE to choose to provide a textbook on tape instead of in Braille (as requested by the user) because tapes are easier and cheaper to access. You don’t want to go there!!!
  • YOU CANNOT GET OFF THE HOOK FOR PROVIDING ADEQUATE AUXILIARY AIDS AND SERVICES IN ALL NECESSARY CONTEXTS BY ASSIGNING RESPONSIBILITY FOR ARRANGEMENTS TO PEOPLE WHO CAN’T OR WON’T GET THE JOB DONE. Thus stated, it sounds pretty crude. I doubt sincerely that the institution intended to see anyone excluded from activities. My guess is that they intended to share both the responsibility and the cost of accessibility throughout the institutional community. A noble ideal — but it doesn’t work in practice. When you leave the job of identifying, arranging and paying for interpreters to people who have never had to do it before, you run a better-than-average chance of access denied. Moreover, as someone pointed out, when you leave the task of arranging interpreters to people who don’t know how to go about it, the institution is likely to end up paying more without any assurance of quality of service (i.e., the possibility of contracting with an outside agency who charges considerably more than would a staff interpreter covering the same activity). There is another drawback to “sharing the wealth” (or, in this case, the expenses!) by spreading responsibility around — you have no way to keep tabs on what the cost of access is for the institution. How are you going to make a good case to the powers-that-be for additional funds, as needed, when you cannot document what has been spent throughout the institutional community?

Two alternatives come immediately to mind. One possibility would be to arrange to have all interpreters funded and arranged through the disability services office on campus. The other possibility would be to have all interpreters arranged through the disability services office but have the costs of those interpreters billed out to the individual sponsoring units. It seems to me that either solution is acceptable on all fronts.

IF THIS IS SIMPLY A SETTLEMENT AGREEMENT, THEN WHY IS IT A PROBLEM FOR ANYONE OTHER THAN THE TWO INSTITUTIONS INVOLVED?

I remember taking a Counseling course years ago in which we discussed “levels of listening.” Lowest on the chain was (1) not listening, and then you progressed through (2) half listening (or preoccupied listening), to (3) half answering. When someone is half answering, they are hearing only those parts of what is said that suit their purpose and makes the case they wanted to make anyway. Then came (4) listening and evaluating from the listener’s frame of reference, followed by (5) listening and evaluating from the speaker’s frame of reference, and finally (6) listening and evaluating from the speaker’s frame of reference and being able to communicate that you understand. My fear is that not only will most who hear about this settlement agreement stop at levels (3) or (4), but that even if someone got to levels (5) and (6), no one would care!!!

This was a settlement agreement. It does not represent a legal finding based on a review of legal mandates. It was a deal that was struck between the parties to resolve the “facts in evidence” within this lawsuit. It is not binding on any institutions other than UC-Berkeley and UC-Davis. Even those institutions seem not to have much work to do in implementing this settlement, as many of the policy changes required under the agreement were implemented even before the settlement was put on paper. HOWEVER…

The fallout from this decision is likely to come from people who do not read the facts of the case, but only the settlement agreed to (in other words, people who fail to recognize that because of some mistakes that WERE made in the things required of them, they agreed to do some things that they WEREN’T required to do as recompense). The potential for lawsuits brought to try to force the provision of the same set of services agreed to here seems very real. Without the same set of facts to answer to, I don’t believe any institution would be OBLIGATED to provide some of the extras included here. But that won’t stop people from bringing suit, and such suits are expensive in terms of both time and money.

I can see other repercussions. While the agreement is not legally binding on other institutions, I foresee some folks using it as a kind of blueprint for what a full cadre of services for deaf/hard-of-hearing students SHOULD be. Thus, regardless of the legitimacy or appropriateness of some of the salient points in the settlement in the context of assuring equal access, this agreement may serve as an unwarranted benchmark against which others will be measured.

For example, WHY did the defendants agree to provide interpreter services for Study Abroad programs when the Office for Civil Rights released a Letter of Findings within the last year suggesting that this was not required under the ADA? I believe the agreed to it because it was a settlement — not a requirement, but a negotiated agreement. One of the five named plaintiffs in this class action suit joined the suit SPECIFICALLY because he had lost out on an opportunity to participate in a Study Abroad program because the ” defendants took the position during this litigation that the Universities were not obligated to provide communication services to deaf or hard of hearing students who wished to participate in the Education Abroad Program” (direct quote from the settlement agreement). Well, guess what? Their position was right (legally), and nothing in the settlement suggests that this is disputed by the plaintiffs’ attorney. It simply was something they agreed to change in the future in order to get a settlement.

Perhaps the most dangerous aspect of this lies in the potential for partial understanding or misunderstanding of what is contained in the agreement. The article in the Chronicle of Higher Education reported this:

Deaf and hearing-impaired students now can also have a combination of sign-language interpretation and simultaneous closed-captioning during lectures. Previously, they had to choose one format or the other, said Claudia Center, one of the students’ lawyers…

Technically, that is true. That IS a part of the agreement. But what is NOT reported is that the combination of services will ONLY be provided “based upon an individualized assessment of the student’s needs and circumstances.” In other words, they are NOT saying that deaf students may simply choose to have both because they decide they want it. Rather, the institutions have recognized that there are some circumstances in which both services are necessary in order to have full access. I have always insisted that having real-time and interpreting simultaneously makes no sense because you cannot watch and listen at the same time. I have learned something new from studying this case. There ARE times (LIMITED times), when I would agree it makes sense to have both. Those who coordinate interpreter services will readily admit that while it may be an easy matter to find someone capable of interpreting for an English 101 course, it is likely to be darned hard to find someone capable of interpreting for an 800-level Engineering class. To effectively interpret, one must have some understanding of what is being said. The more advanced or more technical the course, the more difficult to find interpreters who have the advanced understanding AND can sign. So… for those few instances, based upon individual assessment and circumstances, the defendants in the case have agreed to provide a combination of services. And I would agree to that, as well. But the short reference in the Chronicle certainly doesn’t convey those limitations to the request granted.

As an aside, while the agreement states that students using real-time captioning will have the option of accessing the transcript created by that captioning, it does not suggest that students will automatically be given the transcripts as a part of the real-time service. Long time readers of this newsletter know that I am adamantly opposed to the idea of real-time transcripts being used as a substitute for (excuse for not providing?) notetakers. As I read this settlement agreement, it would suggest that students who CHOOSE to access the real-time transcripts may be provided with those transcripts AS AN ALTERNATIVE to notetakers. I would see that as being fair and equitable and in keeping with the earlier agreement to give the preference of the user primary consideration. BUT… I would see it as an either/or, transcript/notes decision. That may NOT be what they intended with what is stated in the agreement, but if I were the service provider, that’s how I would play it! GRIN

The Chronicle also reported that:

Students also are no longer required to reserve or cancel interpreter services 48 hours in advance.

That’s true, but it doesn’t give a clear picture of what WAS agreed. It appears (again, hard to tell the actual facts) that the defendants (one? The other? both?) had a policy requiring that requests for interpreters be turned in at least 48 hours in advance. Without 48 hours notice, they would not pursue trying to making arrangements. Under the new agreement, the institutions may ask for and encourage up to 72 hours notice, but if the request comes in a lesser time frame, they are still obligated to do everything they reasonably can to TRY to make appropriate arrangements.

The bottom line is that this settlement agreement really doesn’t say or mean a lot of what people are going to THINK it says or means, and that Ð in itself — presents problems. It is a problem for DSS providers who are likely to be dealing with a population of deaf/hard of hearing students who feel emboldened to ask for (demand?) services that we are not prepared to provide. It is a problem for administrators who may be dealing with DSS providers who have misunderstood the reasons behind some of the points in the agreement, and are now urging the institution, BECAUSE of this settlement, to take on responsibility for services that may not be appropriate. And it is a problem for institutions who may find themselves involved in legal battles as a result of people using this settlement as a model, although it was never intended to be that.

ONE MORE CAUTION

My Dad used to have a sign over his desk that read, “Cheer up. You’re not completely useless. You can always be used as a bad example.” It seems to me that this agreement represents a really GOOD example of a BAD example of how such cases should be handled.

I truly am not sure why the institution let this drag out as long as they did and let it end the way it did. As noted, I think there were several practices in place that were pretty clearly “faulty.” If they had fixed those up front and agreed to work with the plaintiffs from the beginning, they might not have had to make the concessions they did on other issues. Obviously, we can’t know what all went on or why it played out this way. Perhaps they TRIED to settle early on and the plaintiffs were not cooperative. Either way, I have to wonder whether the final settlement agreement was reviewed by folks knowledgeable about 504/ADA before it was signed, or only by the lawyer-types that were patting themselves on the back for a successful negotiation. WARNING: Don’t exclude people who understand the ramifications of the decision from deliberations ABOUT the decision.