Monday, January 30, 2012

DOJ Files Important Effective Communications/Academic Deference Brief

See this amicus brief that the Department of Justice's Civil Rights Division filed in the Eighth Circuit last week in Argenyi v. Creighton University.  The key passages from the brief's summary of argument:
The district court erred in holding that Argenyi is entitled to his requested auxiliary aids and services only if he would have been effectively excluded from Creighton’s programs without them. The district court’s decision runs counter to the language of Title III of the ADA and Section 504 of the Rehabilitation Act, as well as their implementing regulations. Both statutes and their implementing regulations require covered entities to provide auxiliary aids and services to enable individuals with an auditory disability to participate fully and equally in their programs. This standard exceeds the standard the district court used to determine whether Argenyi’s request for auxiliary services should be granted. In addition to applying the incorrect legal standard, the district court erred in disregarding Argenyi’s statements regarding how the auxiliary services Creighton provided failed to result in effective communication.

The district court also erred in deferring substantially to Creighton’s decision not to allow interpreters in clinical courses by calling it an “academic” decision. Argenyi was not seeking to modify or be excused from satisfying Creighton’s curriculum. Moreover, academic reasons, and the deference properly accorded them, may be informative in deciding whether a request for auxiliary aids or services requires a “fundamental alteration” of an academic program, but the district court did not make a finding of fundamental alteration. In any event, the record shows that Creighton’s decision was not based entirely on academic reasons, but in part on financial reasons, which are not entitled to such “academic” deference.

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