[Georgia_ahead] FW: Study Abroad
Bonnie Martin
bmartin at gpc.edu
Fri Sep 14 15:15:11 EDT 2007
Another dsshe-list topic of discussion that seems ongoing. This is good
to know about as the supreme court decisions have changed the legal
advise we used to receive on student study abroad issues. A lot of
colleges will now use this to avoid the expense and hassle of working
something out for students who are deaf, use wheelchairs, etc. My
thinking is that if our philosophy is to provide access to students with
disabilities to all programs and activities allowed all other enrolled
students at our institution, we have an ethical responsibility to try
and work something out. I sent a post to dsshe regarding this and will
forward.
Bonnie
________________________________
From: Disabled Student Services in Higher Education
<DSSHE-L at LISTSERV.BUFFALO.EDU> [mailto:Disabled Student Services in
Higher Education <DSSHE-L at LISTSERV.BUFFALO.EDU>] On Behalf Of Howard
Kallem <hkallem at GMU.EDU>
Sent: Friday, September 14, 2007 2:37 PM
To: DSSHE-L at LISTSERV.BUFFALO.EDU
Subject: Re: Study Abroad
Thanks! There have been a number of e-mail threads on the listserv on
this issue over the past several months, since I joined it after leaving
OCR.
It is strictly a matter of statutory construction. To summarize what
several others and I have written, in a decision called EEOC vs. Aramco,
the Supreme Court held that a statute doesn't apply overseas unless it
specifically says so. That case was brought under Title VII of the
Civil Rights Act of 1964, which prohibits discrimination in employment
based on race, sex, national origin, color and religion. Because Title
VII didn't say that it applied overseas, then an American employee
working overseas wouldn't be protected from discrimination -- to be
clear, the employee wouldn't be protected whether he was working for an
American company overseas or a foreign company. In response, Congress
passed the Civil Rights Act of 1991, which amended Title VII as well as
Title I of the ADA to specifically apply overseas.
However, Congress didn't amend Title II or Section 504 -- or, for that
matter, Title VI of the Civil Rights Act of 1964, which protects
students from discrimination based on race, national origin or color, or
Title IX of the Education Amendments of 1972, which prohibits sex
discrimination. Because of this, an OCR regional office issued a
closure letter in a case involving Arizona State University rejecting
the disability discrimination complaint because it involved a study
abroad program. As pointed out by one of the participants in the
listserv, letters issued by OCR regional offices technically have no
precedential value. However, in that case, the letter had been cleared
with OCR headquarters (and the US Dept. of Justice, I think), and it
states quite clearly that it was the agency's position that the statutes
didn't apply overseas.
This is true regardless of who sponsors the study abroad program. If a
student is in a study abroad program sponsored by her university and,
while abroad, is sexually harassed by one of the faculty leaders and/or
another student, it would be OCR's position that the university is not
responsible for the harassment under Title IX -- Title IX simply does
not apply to anything that happens outside the US, because it doesn't
specifically say that it does. For the same reason, if a deaf student
is participating in a study abroad program sponsored by his college, the
college isn't required to provide him a sign language interpreter
overseas. The fact that the program is sponsored by his own college
doesn't matter -- just as, in the ARAMCO case, it didn't matter that the
plaintiff's employer -- which sent him abroad -- was an American
company. As I recall, the plaintiff tried to argue that, because the
decision to send him overseas was made here and because it was all part
of his job, there was enough going on in America to cover what happened
overseas -- but the Supreme Court said no...to paraphrase that overused
marketing slogan, "what happens overseas stays overseas."
If the deaf student decides he wants to go and is prepared to hire his
own interpreter once he gets overseas, then the university can't reject
him from the program...that decision IS made in the US. [But see the
P.S. below.] And the university would have to provide him with an
interpreter for any planning meetings taking place in the US before the
trip starts. Also, if the study abroad trip is a requirement for the
student's program, then the college would have to provide him with (or
allow him to substitute) a similar program that takes place in the US.
Finally, many colleges and universities choose to provide accommodations
to students overseas, and that's fine. Others offer to help the students
find their own accommodations once they get there, and that's fine.
And, a number of countries have their own laws that address disability
issues. One of the participants in the listserv circulated an article
from MIUSA (Mobility International USA) which acknowledged that there
were no court cases that had specifically held that 504 or Title II
apply overseas, but crafted an argument for saying that they would in
certain circumstances; another participant on the listserv also offered
an argument in favor of overseas application. I make no comment about
the validity of any such arguments, and anyone facing a request from a
student for accommodations for a study abroad program may wish to
consult with university counsel. But, again, it is OCR's position that
none of the statutes it enforces apply overseas because they don't
contain explicit language saying that they do, as required by the
Supreme Court in the ARAMCO decision.
Hope this is helpful!
Howard Kallem
Office of Equity and Diversity Services
George Mason University
703 993 8730
P.S. Above, I say that a university couldn't reject a student for a
study abroad program if she was willing to obtain her own
accommodations. One circumstance does trouble me, though, on this
Friday afternoon. Say that a student is in a wheelchair. The
university's study abroad program will be located at Hogwarts, and the
university knows that classes for the study abroad program will be
conducted in Professor Trelawney's tower, accessible only by a circular
stairway. Assuming that the students aren't allowed to magically
transport themselves into her classroom (something about the spells
disturbing the auras necessary for Trelawney's divination), that
England's laws on accessibility and accommodations don't apply to
Hogwarts, and that the Ministry of Magic hasn't issued any accessibility
laws, could the student's home college reject his application? Because
the program will take place overseas, the university is not required by
Section 504 or Title II to insist that the location of the class be
moved, and it knows the student won't be able to participate in it.
Would the student not be "qualified" for the program? [This is a
hypothetical question on a Friday afternoon...it does not really merit
any sort of response.]
----------------------------
Appell, Stephen wrote:
> Sorry to repeat Howie's typo. He meant Title II.
>
> -----Original Message-----
> From: Disabled Student Services in Higher Education
> [mailto:DSSHE-L at LISTSERV.BUFFALO.EDU] On Behalf Of Appell, Stephen
> Sent: Friday, September 14, 2007 12:43 PM
> To: DSSHE-L at LISTSERV.BUFFALO.EDU
> Subject: Re: Study Abroad
>
>
> Please take a look at what Howie says.
>
> "OCR has taken the position that neither Title I of the ADA nor
Section
> 504 apply overseas. This is based on a Supreme Court decision under
> Title VII of the Civil Rights Act of 1964, which held that a law
doesn't
>
> apply overseas unless it specifically says it does. Neither of these
> statutes say that they apply overseas. This is true regardless of
> whether the program is run by the university or by another entity.
> However, the laws would apply to everything that happens in the US in
> preparation for the trip -- e.g., if you had a planning meeting for
the
> participants, you would have to provide an interpreter for the student
> at that meeting."
>
> ..................................................................
> Howard Kallem
> Office of Equity and Diversity Services
> George Mason University
> 703 993 8730
>
> -----Original Message-----
> From: Disabled Student Services in Higher Education
> [mailto:DSSHE-L at LISTSERV.BUFFALO.EDU] On Behalf Of Stacey Reycraft
> Sent: Friday, September 14, 2007 12:38 PM
> To: DSSHE-L at LISTSERV.BUFFALO.EDU
> Subject: Re: Study Abroad
>
>
> I'm with Carol on this one. It is my understanding that study abroad
> programs can fall into two categories:
>
> If the study abroad program involves the student enrolling in a
> foreign institution or program, taught by foreign faculty, available
> to foreign students, then US laws and regulations won't
> apply. However, if the program involves the student enrolling in a
> University sponsored program, taught and supervised by University
> staff and faculty, available only to University students, and it just
> happens to be taught in a foreign country, then US laws and
> regulations may, in fact, apply.
>
> This is a fascinating subject!
>
> Stacey
>
>
>
> At 11:27 AM 9/14/2007, Carol Burrowbridge wrote:
>> I can't put my hand on the source right now, but I have always
>> understood that if a study abroad class was for credit at a US
>> university and sponsored by the US university, that students were
>> accorded accommodations similar to those they would get at their home
>> institution here in the US. I will try to find the source and
> post it.
>> Carole Burrowbridge, MS
>> Coordinator
>> Disability Support Services
>> Mercer University
>> Connell Student Center
>> 1400 Coleman Ave
>> Macon, GA 31207
>> Phone (478) 301-2778
>> Fax (478) 301-2127
>>
>>
>>
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