While we recognize that Case Western is traditionally an in-person university, there is no doubt that it revealed its capacity for accommodating remote learning when classes went entirely remote during the Spring of 2020, and stayed largely remote during the Fall of 2020, and partially remote during the Spring of 2021. According to Case’s own course evaluations, this transition was, on average, rated as going smoothly (students gave their courses an average rating of 4.19 out of 5 in this respect), and students on average found that their education was able to continue (the average rating in this category was 4.18 out of 5), and that they were able to effectively engage with their professors (giving this an average rating of 4.27 out of 5). To cite independent findings, AHEAD found in a study conducted in January of 2021 that Furthermore, as you most likely remember, Case Western resolved not to provide tuition refunds or changes in credit for classes provided online during any of these semesters, under the notion that educational quality and course standards had not been fundamentally lowered.

 

And yet, Disability Resources is denying accommodation requests from immunocompromised (and otherwise disabled) students to be able to take classes remotely, with the largest reason cited by both Disability Resources and the Office of Equity being that this would constitute a fundamental alteration and lowered educational quality of the course.

 

When asked how these two facts reconcile, Eboni Porter has simply stated that the COVID-19 pandemic is a state of emergency, and nothing affected by the pandemic falls under the purview of Disability Resources. What, then, of the fact that students who are immunocompromised or otherwise disabled are the most at risk from this pandemic? Who are we meant to turn to?

 

Further discussions with the Office of Equity and Disability Resources, by both students and professors, about these denials of accommodations have yielded such various responses as:

 

“Last Spring when the semester went remote, faculty had to go and change the way their courses were going to be run. So we have to look at: are they still instructing the course the same as they did when it was remote, so…if they had to make changes, it would be a fundamental alteration.” In which case, where is every student’s refund for classes having been fundamentally altered?

 

“Courses that are highly participatory, what I’ve found so far is that no university has provided a remote option for it for an approval for a disability accommodation, because it is meant to be in person…Having one student be off campus and everybody else in person is a fundamental alteration…Those have been no across the board.” This is factually inaccurate.

 

“If exams are in person, then we can’t say that for this particular student it has to be online. That’s a fundamental alteration as well.” Again, this is incorrect. Alternative formats for tests and class assignments (including all printed materials) have clearly been specified by the Department of Education as being a reasonable accommodation, and this is such a widely known fact that right on Case’s disability resources page, “Alternate format for print materials” is listed as a possible accommodation. If taking a test remotely, regardless of whether it is on paper or on screen, is the issue, then, again, courses would have to have been classified as fundamentally altered when they went online, meaning that they should be registering differently on transcripts and students should be entitled to tuition refunds, neither of which is happening.

 

“It’s a fundamental alteration because if students are required to be in person, then students are required to be in person. And the difficult part with this whole pandemic too is that universities were forced to go online. There wasn’t a choice. There are schools that are specifically set up to be online schools, and that changes the nature of the degree.” Once again, this argument is founded on the precedent that classes were fundamentally altered by going online, a precedent that CWRU has actively denounced.

 

“If you have a question, and the instructor is talking, the instructor is not always going to be able to pay attention to if you’re raising your hand.” This is an issue that exists regardless of course format, and is in no way a reasonable or justifiable proof that a student being remote alters the nature of the course, or the educational quality. If it were, Case would never have offered hybrid classes, which it did.

 

“It also depends on where the classroom is.” This is not an acceptable reason to not provide this accommodation, because Department of Education decisions have clearly stated that changing the room in which a classroom is being held is a reasonable accommodation.

 

“When it was for the entire school, that was an emergent situation and that was something that was outside of our control due to the pandemic.” Students’ disabilities are hardly classified as within anyone’s control. Most of the people being denied accommodations for remote attendance are requesting them because of the danger of the pandemic being outside of their control, so if anything this response should only justify the allowance of remote attendance. Furthermore, the United States is still in a state of emergency, and Case Western still clearly considers the pandemic to be an emergent situation, because it is requiring testing and remote classes for the first two weeks of the semester. So the fact that the pandemic is an emergent situation is the antithesis of a justification for denying remote attendance.

 

“If we look at it from the pandemic sense, we can’t…say that you have to make this consideration because of the pandemic.” The pandemic is a mass disabling event, and disproportionately affects students with disabilities. So why can’t this be taken into account?

 

And finally, perhaps the icing on the cake: “In that situation, what we would say to a student is, for the pandemic situation, then take time away…This would be a time that we would say, do not take classes.” This is, word for word (taken directly from an audio recording of the encounter), what Eboni Porter has told a disabled student requesting remote attendance as an accommodation. The fact that Case Western would even employ, let alone back the stance of, someone willing to say this to a disabled student is abhorrent.

 

The Americans with Disabilities Act clearly states in Sec. 12182 (a) that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” And yet, the person in charge of Case Western’s Disability Resources is plainly telling a disabled student not to utilize the university’s services, because they are disabled. Not only is this ethically reprehensible, it is illegal.

 

Even putting that comment aside (which we will not do), the denial of remote accommodations is, in and of itself, unethical and illegal.

 

Title 34 of the Code of Federal Regulations explicitly states in section 104.44 (Academic adjustments), Subsection a (Academic requirements) that: “A recipient to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student… Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.”

 

The Department of Education also released a statement on March 21, 2020 saying that “Nothing issued by this Department should in any way prevent any school from offering educational programs through distance instruction.” And yet Disability Resources is using the pandemic as a front to deny accommodations.

 

In addition, in 2017, the Department of Education ruled in an investigation of Central Washington University (OCR Reference No. 10162203) that “The Director told the student that remote access was not allowed because it was an alteration of the fundamental nature of the class, although OCR found that the Director did not make an individualized determination of whether remote access would constitute such a fundamental alteration. OCR further determined that the university’s decision to provide remote access as a courtesy in some of her courses indicates that in-person attendance is not essential in at least some of the courses in the student’s program of study. Based on the above evidence, OCR finds that the university violated Section 504 and Title II when it denied the student remote access as an alteration to the fundamental nature of the student’s courses and lectures, without engaging in an individualized evaluation of the courses and lectures to determine whether or not the requested accommodation fundamentally altered the nature of the courses and lectures.”

 

This case is particularly striking in its similarity to the current situation in a multitude of ways, including:

1)     During this investigation, it was found that “The Director responded to the student on February 19, 2016, that ‘allowing you to access your class remotely is outside of what the school is required to do.’ She wrote that the university had been able to make it happen for another class because the teacher gave permission and the classroom was equipped for distance education, but “I can’t promise that we can do this for any or all of your other classes....Changing a class from an in person class to ‘distance ed’, which is what we are essentially doing, is considered an alteration of the fundamental nature of the class.’” This statement is almost word for word the statement that Eboni Porter gave, and was ruled by the Department of Education to be illegal.

2)     When making their initial denial of an accommodation request in the Fall of 2021, not only did Disability Resources fail to consult professors to determine whether or not remote accommodation was a fundamental alteration of courses (a fact attested to by several email records showing professors agreeing to provide remote attendance regardless of Disability Resources’ decision), but the Office of Equity also failed to contact any professors during the appeal of this same decision, pointing to not only Disability Resources but also the Office of Equity clearly violating the law as set forth by the Department of Education.

 

When questioned about this ruling by the Department of Education, Eboni Porter ignored the questions and returned to insisting that remote attendance was a fundamental alteration of courses.

 

In the Fall of 2020, Deans at Case Western even went so far as to threaten professors with retaliation were they to offer students remote access to their classes. When questioned by multiple heads of departments about this, neither the Deans nor Disability Resources provided any response other than that immunocompromisation is not a disability.

 

It also bears mentioning that other departments at Case Western are currently offering hybrid models of education, which in and of itself destroys the precedent that CWRU cannot offer hybrid classes. Particularly given the fact that the majority of the classes for which remote attendance has been denied have already been offered remotely (pointing yet again to the fact that Disability Resources cannot deny remote attendance, because it cannot be classified as a fundamental alteration if this is being offered as the same course with the same tuition rate), there is absolutely no legal justification for a denial of remote attendance as an accommodation.

 

And now on to the ethical implications. Disability Resources, and by extension the entirety of Case Western, is presenting its disabled students with an abhorrent ultimatum: leave the institution, or attend classes in person and risk death. Is this truly the message that Case wants sent out? Is this the type of institution that Case Western wants to be? Being one of the country’s best medical schools, while simultaneously ignoring accommodation letters written by doctors employed by the university itself and actively endangering the very lives of a significant portion of its student body? Who benefits from this?

 

Disabled students are already extremely marginalized and face significant barriers to education in non-pandemic years. Now, these dangers have nothing but multiplied. And Case Western is doing nothing but perpetuating these dangers.

 

Now is a time for the community to band together to protect some of its endangered members, not aid in killing them off. Now is the time for you, as Provost and President, to take action to protect your students’ lives. Will you allow remote education, so that your students can live to see their educational aspirations realized? Or will you condemn them to a choice between loss of education and loss of life, as two of your school’s departments have already done?