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Access Denied

August 6, 2008

In a discrimination case that is still crawling through the Louisiana court system after seven years, McNeese State University’s president has asserted that it is not a “high priority” for disabled students to access the university’s student union.

The case, which stems from a 2001 accident, was brought by a student who -- while in a wheelchair -- was injured trying to pry open a bathroom door in the union. The door was not made accessible for disabled people, according to the suit.

In a 2005 deposition, McNeese President Robert Hebert acknowledged that the institution was “not in 100 percent compliance” with the Americans With Disabilities Act. With limited funding, McNeese has had to make tough choices about how to spend its money on federal compliance, he said. This being the case, Hebert said, academic buildings have reasonably taken priority over the student union, which houses offices, cafeterias, and the student newspaper, among other services.

“Whether or not it’s fundamental for [disabled students] to get into that student union annex or that it’s fundamentally important for them to obtain an education, I would question that,” Hebert said in the deposition, which is now making the rounds on Youtube. “I’m not sure I would regard it as a high priority.”

Under the harshest interpretation, Hebert’s words could mean that he simply doesn’t view giving disabled students an “education” as a “high priority.” In the broader context of his deposition, however, Hebert noted that McNeese was confronted with something of a Sophie’s Choice. Forced to choose between making classrooms accessible and making the union accessible, he said, McNeese chose the classrooms. Whether McNeese lacked the funds to do both, however, is disputed in the lawsuit.

Asked to clarify or expound upon his remarks, Hebert responded in an e-mail Tuesday:

“Accessibility to all facilities is important, but accessibility to academic buildings is critical for classroom instruction,” he wrote. “We have made great progress toward making the campus accessible to all students, employees and visitors. It is, and will be, an ongoing project and one that we take very seriously.”

As of Tuesday, however, the lone women's restroom in the student union was still not compliant with the Americans With Disabilities Act -- seven years after a student was injured there.

The law does not require that every bathroom in a building constructed prior to the act's 1990 passage meet the standards, but it does require that all services and programs be made available to disabled people.

No Lower Standard for Student Unions

Even if comments from Hebert’s deposition are viewed in the most charitable light, he’s likely to draw criticism -- or even more legal challenges. The ADA, which applies some of its most stringent rules to public universities, does not have lower standards for dual-use facilities that have recreational and academic functions.

Chai Feldblum, a professor at Georgetown University Law Center, notes that all services -- including cafeterias and student government offices -- have to be accessible under the law. University officials don’t have the option to choose which buildings to make accessible, unless they can establish that new construction would constitute an “undue burden,” Feldblum said. Even in the case of an undue burden, universities have to find another way to ensure that disabled people aren’t prevented from accessing programs, activities and services.

“The law is saying people with disabilities should be able to come and get an education in the totality of the program,” Feldblum said.

The case against McNeese was brought by Collette Covington, a former student who is epileptic and was using a wheelchair in the spring of 2001, following a string of surgeries on her knee, according to court documents.

When Covington tried to exit the bathroom in the student union, known locally as "the Old Ranch,” she couldn’t leverage the door and was wedged into a position that caused her arm to “pop so severely that she thought she had broken it,” according to a brief filed by her lawyer.

In a 2007 summary judgment, a Louisiana district court ruled that McNeese had failed to meet its obligations under the federal disabilities law. The act required that the Old Ranch be equipped with an accessible bathroom because the building had been renovated after 1990, the court found.

McNeese is now appealing the judgment, arguing that Covington -- who didn’t absolutely need a wheelchair, according to McNeese officials -- isn’t entitled to coverage under federal law. Covington had started using the wheelchair about a week before the accident, not because she couldn’t walk, but because she wanted to get around campus “at a faster pace,” according to statements attributed to Covington in court documents.

“It is reasonable to assume, then, that Covington could have stepped out of her wheelchair temporarily in order to use the restroom,” McNeese’s lawyer wrote in an appellate brief.

McNeese officials concede in court documents that the lone women’s restroom in the Old Ranch did not comply with federal regulations at the time of the accident. The university contends, however, that McNeese was still not denying students any services or programs -- even though the Old Ranch houses McNeese’s debate team, the yearbook, student government offices and the university’s only two major cafeterias, according to President Herbert’s own 2005 deposition.

The Old Ranch is now slated for more renovations, and university officials say they'll upgrade the restrooms in compliance with federal standards. McNeese plans to use approximately $30,000 in auxiliary funds to renovate the facility’s restrooms in the fall, making them “fully ADA compliant,” according to Candace Townsend, a university spokeswoman.

Feds Required Compliance by 1995

The Americans With Disabilities Act was passed in 1990, and public entities like universities were given until 1992 to achieve “program accessibility.” In cases where structural changes were required to meet the federal requirements, the act allowed universities to work as “expeditiously as possible” to fulfill the requirements, “in no event later than January 26, 1995.”

At McNeese State, 25 percent of the restrooms on campus are still not compliant with the Americans With Disabilities Act, university officials say.

Mike Shuttic, president of the Association on Higher Education and Disability (AHEAD), said universities have a difficult time proving that it’s an “undue burden” to accommodate the disabled. Since universities readily tap into funds for various projects, and often have endowments to draw upon, higher education officials are hard-pressed to prove the mandates of federal law are too onerous, Shuttic said.

“I’m unsure, at least in the education realm, where that has ever been a defense that’s appropriate,” said Shuttic, coordinator of student disability services at Oklahoma State University.

Plaintiff Aims to Help Future Students

Covington, now 47, hasn’t returned to the world of higher education since her accident. An aspiring teacher, she says she tried to re-enter McNeese several years ago, only to be told that the standards for her degree had changed dramatically and that she would lose significant amounts of credit.

“They added so much to the curriculum, and it was just too much for me,” Covington said.

Covington, who lives alone in southwest Louisiana near McNeese, collects disability payments and is unemployed. She says she struggles with neurological problems and epilepsy, and still uses a wheelchair.

Covington’s lawyer, Seth Hopkins, says he “stupidly” agreed to break Covington’s case into separate trials. The summary judgment establishes that McNeese violated the Americans With Disabilities Act, but Hopkins says he would have to move forward with new litigation in order to force the university to change anything on campus or to collect damages for Covington.

Covington says she has modest goals.

“I hope that [the case] helps every other person that ever comes on that campus that has any kind of difficulty,” she said.

Covington, who once attended local functions as a formal “ambassador” of McNeese, says she’s disappointed with the university’s response to the case.

“When I think about it, they just sound so ignorant,” she said. “They don’t have a justifiable answer to anything -- that I could tell. But I don’t have a college education, do I.”

 

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