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(Calm music)
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- [Kathleen] Welcome to NACUA's briefing COVID-19
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Drilling Down on Student Accommodation Specifics.
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I'm Kathleen Santora NACUA'S president and CEO,
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and I'm so pleased to have members
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for more than 600 locations with us today.
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We've now started a new semester
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in the midst of this ongoing global pandemic,
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and we are so grateful
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for all you're doing to help make sense
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of these exceedingly difficult times
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and to guide your campuses
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through these unprecedented changes,
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we wanna continue to be here to help,
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and as quickly as possible.
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Today's briefing is 30 minutes, is audio only
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and without live audience questions.
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This is the 18th in a series of complimentary briefings
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we've held on coronavirus related topics, since March.
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We have closed captioning available
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for those of you joining us on zoom
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and you can turn it on by clicking the CC button
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at the bottom, right of your screen.
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All of our resources, including the recordings
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of our briefings are included on the special
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COVID-19 resource page that is in NACUA's
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online resource library.
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We also send periodic COVID-19 resource roundups
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that include direct links to all
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of the recently added resources
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on the NACUA'S resource page.
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Today, we are going to hear from Jeff(indistinct)
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who is an outstanding volunteer
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and a speaker expert on disability rights laws.
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We're so happy to have you with us, Jeff.
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Jeff presented in NACUA webinar in August
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about student accommodations in the age of COVID.
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And after that program, we heard in the member evaluations
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that they had more questions for Jeff
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than we had time to answer.
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So you should know,
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we really do pay attention to those evaluations.
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So today Jeff is going to discuss
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some of the most common concerns
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that campus council encounter
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with student accommodations requests.
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Jeff is also going to reserve time for Q&A
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with Jesse Brown NACUA's executive director
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of legal resources.
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Who's going to pose some of the questions
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that Jeff wasn't able to get to on the webinar.
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Jeff, thank you so much for being with us today.
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Welcome to the program.
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- [Jeff] Thank you so much, Kathleen.
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And thank you to NACUA for having me back today
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to talk about these issues, I really do appreciate it.
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I wanna also thank all of those of you out there
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who are, as Kathleen said,
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"working so hard with your campuses
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and the unprecedented times"
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I know you have many different issues
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that are demanding your attention and those of your clients,
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and not the least of which are issues related
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to accommodation requests by our students
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in an environment where some of this is very new us.
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I think a theme we will find throughout a few minutes,
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I have to talk about these issues today though,
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is that a lot of what we're going to be using
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as our touchstones are our more tried and true
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sources of information and guidance
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in the form of court decisions, regulations
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and OCR positions on issues of student
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accommodation requests.
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But we do have some different questions
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about how to apply those bedrock principles
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to the current environment.
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So to revisit quickly,
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some of the issues that we talked about Paige Barnett
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and I did back in August on the student accommodation side
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of things, we looked at OCR's position
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on COVID to the extent that there is one,
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some accommodation procedure questions,
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documentation challenges, online learning issues,
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housing accommodations, and dietary accomodations
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I would commend you to them that webinar
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for the greater portion of it was devoted
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to employment side issues
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hence allowing a little bit more time to it today,
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but we did address student accommodation issues there
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for a portion of the time,
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just to summarize the highlights there.
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In March, OCR came out with a fact sheet
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that essentially indicated that the decision
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that schools are making around their spring semester
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have to continue to comply
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with their non-discrimination obligations
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under federal civil rights laws,
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including section 504 and title two of the ADA's.
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So no surprise there basically OCR indicating
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that they are going to continue to apply the rules
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as they have.
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We noticed that,
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that there would likely be some documentation challenges
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that I think will be continuing.
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They will vary depending on the state of the viruses
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expansion or contraction in a particular location.
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But what we can anticipate is that healthcare providers
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are going to be stressed and overwhelmed in some places.
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And people may have less ability to get into consult
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with their healthcare providers
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in order to obtain documentation,
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to support requests for disability
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that may require that accommodations would be provided
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on a provisional or temporary basis
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pending receipt of documentation.
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Well, that should be a reasonable response
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in a emergent exigent circumstance.
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Please though,
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don't waive documentation patient all together.
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We have to continue to maintain vigilant
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around requiring appropriate documentation
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in the post secondary setting
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so that we're sure that we can continue to demonstrate
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that, that is something that is very important
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to the institution and that we are going to seek
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that as we are allowed to under the law.
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With online learning issues, there's a lot to be said
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about this much more than we have time to do today,
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but certainly we're going to get requests
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for digital accessibility.
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As we move more to reliance on online services,
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we need to work with our faculty to make sure
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that audio visual materials and other technologies
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used are going to be accessible captioned, et cetera.
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And there's no reason to believe that basic ADA digital
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accessibility requirements will not be enforced
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in this environment.
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Certainly providing IT support and accessibility guidelines
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to faculty in advance.
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Of course, creation is our, or as we ramp up for the fall
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is preferable to dealing with these things two weeks
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into a class when the students complain.
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So certainly if we can, and I know it's a lot to ask.
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We wanna be as proactive as we can be,
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and we should expect that.
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Well, it is obviously it has been an extremely busy summer
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and early fall.
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We're probably not gonna get whatever preference
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we may have, had in the spring when things
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were more of an emergency closure mode.
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And we were scrambling to put together remote learning
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or virtual learning modalities.
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We should be moving toward an environment where
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that is more assumed or that the pivot to remote
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where necessary given emergent circumstances
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with the virus is something that we should be preparing
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better for.
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It's easy for me to say that it's a lot harder
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to implement it on campuses.
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We're just gonna have to do our very best
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and his counsel for institutions,
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just be advising that that expectation is going to be there.
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One of the other things that we're gonna see a lot
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of is requests, obviously from students
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not to attend classes in person and changes
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in particular class requirements.
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And I think
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the big question will be what is a fundamental alteration
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when we have had some period in the spring of 2020,
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where many classes were done on a virtual basis
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and academic credit was awarded,
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the question could be posed in the abstract.
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You know, does this mean that we no longer have the ability
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to assert that in-person participation
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is an academic requirement and that waiving
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that would be a fundamental alteration.
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And I think we have to be able to maintain and establish
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That in fact,
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there are times when in-person participation is absolutely
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a fundamental requirement and that changing
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it is a fundamental alteration that it is essential
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that people will be there in person for certain types
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of classes or certain elements of classes.
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And so that is something that we're gonna have to work
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diligently on with our faculty to be able to support
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the institutions position in that regard.
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I want to give thanks where due in talking
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through these issues with the education team on the night,
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we try and work together.
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And as a team on these issues,
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and particularly I was talking with my colleague,
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Phil cotton Zano on these issues.
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He works with schools around the country on OCR matters,
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given his experience with OCR and ADA matters.
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And he reminded me of the basic bedrock principles again,
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that we should be looking to recognizing that we have
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the ability to be respected in academic judgments
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that we make as academic institutions,
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and that there will be deference on the part
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of OCR in court.
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But if we're going to want to seek the benefit
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of that deference, we have to develop
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the record appropriately.
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We can't just default to a situation where we leave
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it to faculty decision and the ADA office to first faculty.
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And that's the end of the inquiry.
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It could be tempting at times,
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particularly given exigent circumstances
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to have that (indisticnt)the entire conversation,
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but that is not a fully flashed out interactive dialogue
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for ADA purposes.
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And if the issue is pressed by a student who is seeking,
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for example, a remote learning opportunity in a class
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that otherwise would be in person and the institution
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is able to provide that in person opportunity
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under the circumstances.
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That's something that we're gonna have to justify
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as institutions have had to do over the years.
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So if we look at some of the bedrock principles,
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we look back at the (indistinct) versus
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Boston university case in the late 1990s.
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And you recall there were two or three different decisions,
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several reported in the federal reporter and half's up.
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And, they really do well illustrate the back and forth
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that needs to be had on these issues.
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One of the decisions ordered the university
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to undertake a process of reasoned deliberation
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as to whether modifications to certain requirements
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would change the essential academic standards
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of its liberal arts curriculum.
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In that case, waiving certain requirements,
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foreign language requirements.
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And that was the inquiry that they had to engage in.
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They were able to go back and report to the court
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after consulting with a faculty committee
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that it had been deemed as a matter of academic principles
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that a waiver would change
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fundamental academic requirements.
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The court accepted that said it was rationally justifiable,
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and it would not pile ADA.
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They hold to that standard win versus tufts
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in the earlier nineties also looked
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at whether relevant officials
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at the institution had looked at things
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like the feasibility, the cost and the effect
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in the academic program of waiving certain requirements
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in that case, a standardized testing for med school,
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and it was found that relevant officials
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had done their homework, had done the inquiries.
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How do we apply that to this current requirement,
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one OCR decision.
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And again, they're not as precedential as court decisions,
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but they do give insight into OCR perspective
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on these things.
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One OCR decision that is worth looking at given
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its subject matter involved central Washington university,
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it's a 2017 decision that's publicly available
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the reference number,
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and I'll speak it slowly so you can scribble it down,
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but hopefully you can Google it, anyway.
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It's central Washington university.
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The OCR reference number is 10162203
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And the question
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there was whether the university appropriately responded
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to a request from a student
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with multiple chemicalsensitivity,
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that the student be allowed to take classes
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on a remote access basis.
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And there had been some allowance of that as a courtesy,
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but it had not been provided as an accommodation
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across the board.
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And what those OCR found in that particular case
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is that the institution hadn't made an individualized
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determination of whether remote access would constitute
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a fundamental alteration.
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So they really looked at the process.
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They didn't question the ability of the institution
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to say remote access would indeed constitute
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a fundamental alteration, but OCR looked at the process
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and said,
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"There wasn't an individualized determination made."
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So keep that in mind, as you think about the kinds
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of challenges you will be facing and what you need
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to do to demonstrate that you followed the right process.
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Now I will dovetail with that.
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Another OCR decision in a matter involving UMass Boston,
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this came out in 2018 and the OCR complaint number.
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And again, I'll state it slowly so you can scribble it down.
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OCR complaint number is 01-16-2120.
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And there a question was raised around again, process,
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and I won't get into the details of it.
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But one of the things that the OCR regional office noted in
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that matter was when looking at these procedural issues,
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they wanted to see that appropriate groups of folks.
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So they, said OCR policy requires among other factors
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that decisions regarding a central requirements
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be made by a group of people who are trained,
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knowledgeable and experienced in the area.
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And that through a careful, thoughtful, and rational review
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of the academic program and its requirements
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that the decision makers considered a serious series
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of alternatives for the essential requirements,
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as well as whether the essential requirement question
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could be modified for a specific student
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with a disability and noted in their analysis
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after stating that general OCR policy,
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which we should keep very much in mind,
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as we think through how we're gonna respond to requests.
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For example, for remote learning,
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they noted that professors may be an integral part
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of the interact process because their input
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into what constitutes a fundamental alteration
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or a central requirement for a course
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is absolutely necessary.
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They are not qualified to solely determine
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what the requesting student may be entitled
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to under section 504 of the ADA,
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because they don't know the law,
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they don't have the specialized training
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and the law disability issues in order to do that.
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So again, the idea of a teaming approach
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as noted in the UMass Boston decision
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for that particular case.
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And then also thinking about the individualized inquiry
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has in the central Washington decision.
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And then we look back on the Guckenburg and the Tufts
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legal decisions from the nineties.
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These are all things that we should be bringing
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into our new inquiry,
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probably one of the most fundamental ones
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we're gonna have in the academic environment
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of how do we establish in response to a request
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if we have to do it in that way,
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that a requirement is academic and that in person
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say participation in a lab or in a clinical experience
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or another area where the institution is saying,
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"Yes, we have made some accommodations for remote learning.
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We were forced to do it in an emergency basis
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in the spring of 2020,
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but that doesn't mean that we're going to go completely
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virtual from this point forward,
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these are academic central requirements.
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We can still do that, but we are going to be pressed on it,
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given the precedent from the spring to demonstrate
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that that is not precedential forever.
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Those were emergent circumstances and exits exigent ones
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that don't define our academic program from this point
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forward."
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So therefore, how do we best document
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and establish our rights as institutions
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to define our requirements, follow the bedrock principles.
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Don't short change that process as tempting
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as it might be and rely only on what the faculty says.
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It's gotta be more deliberative than that and involve folks
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who have the academic side like your faculty,
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but also the ADA requirements side,
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like those in your ADA office
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and your counsel, and then document your work.
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That is, I think the most crucial challenge
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we're facing right now, when it comes to the academic side.
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I know a lot of the questions that Jesse wants to talk about
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and that folks had posed are gonna be more
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on the nonacademic side.
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So with that, I will just stop commenting
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on the academic side and turn it back to Jesse
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so that we can talk about some of your more
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practical questions around safety and other physical issues.
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- [Jesse] Thank you, Jeff.
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And thank you for that framework and for some
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of those OCR decisions.
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Yeah, I'm Jesse Brown NACUA's was executive director
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of legal resources.
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And as Kathleen and Jeff mentioned,
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I will now pose some of the questions
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that Jeff didn't have time to answer during the webinar,
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which was just one month ago.
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Many of these questions actually were posed
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by more than one viewer in some iteration.
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So we know that these are some of the issues
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that institutions are struggling with at the moment.
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So here, I'm gonna dive right in.
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So we know that a generalized fear of contracting
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coronavirus is not likely to give rise to a duty
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for institutions to provide an accommodation under the ADA.
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But how would a school determine whether a person
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is experiencing a generalized fear versus suffering
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from a mental health condition like anxiety?
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It seems that such a fear could potentially constitute
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a mental health condition that would require accommodations.
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And I will note that this particular question
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came up five or six times.
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So clearly this is one that's on people's minds.
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- [Jeff] Thanks Jesse.
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It's gonna come down to documentation.
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And that documentation to some extent will hopefully
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incorporate some background information.
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You know, if you have a professional who is actually working
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with the student, not someone who is, you know,
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part of, you know, accommodation male,
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who they don't actually have a relationship to.
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Like we sometimes see in the emotional support animal realm,
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if they're actually working with the person,
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and there's some history of a relationship where, you know,
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since whatever date my,
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and working with this student who has the anxiety disorder,
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and one of the things that they've experienced is this,
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and this is exacerbated by the current environment
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because of the potential fear of contracting COVID-19.
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That certainly would be part of a reason to inquiry.
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If a by contrast, it really does seem to be the alternative
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to a generalized fear,
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but they've put a little bit of a gloss on it,
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but there's no history of otherwise having a condition
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that the person was seeking treatment for.
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There's no background relationship.
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The institution may be in a position to push back.
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If it's determined that it's worth pushing back,
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because providing what is being requested would potentially
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implicate fundamental or essential academic requirements
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or hardship requirements.
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If it's an easy one in this environment
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where so many people are receiving education virtually
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it may not be worth the battle,
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but to be principled about it,
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if it is something that may implicate higher level issues,
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then pushing back and requiring more specific documentation
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is what I think would be appropriate
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and where you are requesting it.
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I think it would have to be established once you have it.
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You know, you can ask your folks that you work
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with to help you evaluate documentation, to look at it.
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But there probably is a point where someone establishes
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that they are suffering from an impairment
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that will be exacerbated by the current environment
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and that their anxiety will increase to a point
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where they will be substantially limited in their ability
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to learn or work, et cetera, in this environment.
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So it's possible,
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but I think we could probably push back we need it to.
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- [Jesse] Thank you for that.
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Could you help us understand the rule as to when
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an increased risk for severe illness?
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So in this particular instance,
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someone that has risk factors or comorbidities
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could constitute a disability and how we would look
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for documentation of that.
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- [Jeff] Sure, I probably wouldn't put it as a rule per se.
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We're gonna apply our standard ADA type principles.
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One thing I would recommend and not everything
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the EOC says in the employment context
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is gonna be transferable,
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but I would recommend a March 27th,
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2020 EOC outreach webinar, question 17 in that exchange.
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So if you Google that, you'll find it.
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EOC outreach webinar on March 27,
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2020 question 17 poses the question,
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what are an employer's ADA obligations?
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When an employee says that he has a disability
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that puts them at greater risk of severe illness
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and he contracts COVID-19 and therefore asked
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for reasonable accommodation,
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and the answer reflects CDC guidance
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on specific medical conditions like chronic lung disease,
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serious heart conditions that may put individuals
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at higher risk and indicates that in the EOC's view.
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And this is probably I think quite a well-taken view.
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This is a request for reasonable accommodation.
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I think that's a principled way of looking at it.
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It's gonna be based on the underlying condition,
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but the exacerbation seems to be a reasonable relationship.
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So if one is established between the underlying condition
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and how the current environment would exacerbate
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that condition and pose significant risks,
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then it would be fully appropriate
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to view that as a request for accommodation
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and evaluate good documentation
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about the underlying condition accordingly.
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But obviously that's very different than generalized anxiety
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or some kind of a statement like, you know,
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"I am a person of a certain age
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and therefore maybe more susceptible"
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well, age is not a disability,
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there may be conditions that are,
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but age in and of itself, most definitely is not.
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So your documentation inquiry is going to have to look at
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those factors.
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- [Jesse] Thank you.
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We have quite a few questions about students who may,
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request accommodations to, to not wear masks.
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So the first one here is "Can you think of an example of a
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disability that would, reasonably exempt someone
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from wearing a mask?
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And sort of attendant to that, What could the institution
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require of the student if it makes the decision
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to allow that person to go without a mask?"
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- [Jeff] So, Jesse,
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I'm not gonna answer the question directly
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because it implies that it may be a real reasonable
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accommodation to not require the mask.
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I could see circumstances where people would request
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not to wear a mask because of a disability
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things like folks being having an autism spectrum disorder,
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folks, living with CLPD,
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where there's literally a difficulty breathing
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that's posed by the mask,
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other things related to skin sensitivity
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and those sorts of things.
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So if we assume for the hypothetical that the person
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has established that there is a disability related reason
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why they cannot wear a mask, then I think the question
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becomes does their presence in certain spaces
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pose a direct threat to others?
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So, you know, is there a direct threat?
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Can that direct threat be accommodated
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by taking other steps?
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So if we assume the disability,
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then we looked at direct threat,
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if you are local municipality,
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if you state has made a determination, for example,
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that the wearing of a mask is essential
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for the public safety of others, then we can rely,
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I think, strongly on that and say,
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"How can we then keep others safe,
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but allow this person to engage in let's for example,
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say an in person academic experience.
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So then we would look to ways in which the person
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could engage in, you know,
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different environments set off from others,
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different testing environments,
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maybe where they weren't allowed to interact and so on.
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I think we would go through all of those alternatives
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in the analyzing the request."
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There may be times when it's deemed that certain
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accommodations cannot be made so that we have to say,
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"Unfortunately, we've looked through all the alternatives
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you would pose a direct threat.
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If you refuse to wear the mask"
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I suppose we can talk in terms of more vigorous testing,
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but you'd have to rely on health officials
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as to whether that would really promote safety sufficiently
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as opposed to wearing the mask.
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But I think, you know, the basic analysis
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would have to be yes if there's a disability
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is a direct threat, can we accommodate
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and mitigate that threat?
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If not, we may have to determine that we cannot provide
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the accommodation.
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So possibly what we have to provide instead
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is a remote opportunity if the class can be done that way.
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- [Jesse] Thank you, and how would your analysis change?
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If someone were seeking of a student were seeking
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a complete exemption and they were citing religious.
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- [Jeff] I think the religious argument
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would probably receive less deference
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than the disability argument.
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Obviously religious accommodations are recognized,
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but it seems to me in practical terms
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that the disability accommodation requirements
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are more strongly enforced.
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I think that someone would have to establish
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the religious basis for the demand that they not be required
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to wear a mask.
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And I would, frankly, if I needed to go back to an analogy
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and I know there isn't an established law on it,
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but I would make the argument around, you know,
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we are not discriminated against you
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because of your religion,
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but we have a generally applicable safety requirement
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that says you have to comply with certain things
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the way some schools and certainly, well,
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some K through 12 environments where state law allows it
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have said, not only can we preclude you,
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but state law doesn't allow us to have you
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in an academic environment unless you've received
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certain vaccinations
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and we get into religious pushback around that.
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But typically in the end,
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if it's a safety requirement commanded by public health,
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as long as we are not acting on the basis of discrimination,
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then public health is going to control over
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the religious objection.
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Even if that objection is established,
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which is not guaranteed.
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And I would probably push back on that a bit.
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- [Jesse] Thank you, Jeff.
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I'm gonna squeeze in one more quick question
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here before we have to end.
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And this sort of goes along with some of your comments
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about immunocompromised students that may request
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that in-person courses be offered in a virtual manner.
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I think the question here
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I would have is that I think still is an open question here
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is so, you know, can institution require a student
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to do that?
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To what extent would an institution be required
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to offer the education virtually rather than in person?
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And if an institution does it for one student,
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does that set a precedent where they have to do it for all
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students?
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- [Jeff] Well, the setting, the precedent piece
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I'll start with,
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I think it would have to be done if each establishes
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their right to that as a reasonable accommodation.
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And it is a reasonable combination
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because it doesn't undermine,
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essential academic requirements or pose a fundamental law
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alteration or an undue hardship.
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So the precedent piece of it,
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I don't worry about across the board
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because you'd have to document individual rights
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to that accommodation.
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- [Jesse] Great, thank you.
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So it is now 2:31,
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so I will close us out and thank you Jeff
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so much for being with us today and walking
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through some of these some of these issues
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and through the framework about thinking
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about student accommodations.
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As a reminder to our listeners,
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please complete the brief evaluation
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that we will be sending shortly.
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Our ideas about new briefings are informed
-
by your suggestions in the evaluations.
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And I will also remind you that a recording
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of this briefing will be placed on NACUA's website soon
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under the coronavirus resources.
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I also will note that Jeff mentioned a number
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of OCR decisions and an EOC guidance,
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and we will collect those and we will put them
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on the materials tab of the briefing webpage as well.
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Please stay safe and healthy and let us know how NACUA
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can help you during these difficult times.
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And thank you so much for joining today's briefing.
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(calm music playing)