A Statement from Sheffet & Dvorin, PC regarding death of George Floyd

We at Sheffet & Dvorin, PC are Civil Rights lawyers who condemn any form of racism or police excessive use of force. Our mission is to achieve justice for anyone who believes their Civil Rights have been violated. We also condemn any oppression of any minority, race or religion and will fight for better days in this country where all are treated equally.

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Federal law provides extensive protection for persons with disabilities. The Fourteenth Amendment of the United States Constitution requires states to provide for the equal protection of persons within their respective jurisdictions and to give due process any time state action could adversely affect life, liberty, or property. In addition, federal law 42 U.S.C. Section 1983 (Civil Action for the Deprivation of Rights) permits a plaintiff to receive a jury trial and to be awarded damages including their attorney fees where state action is responsible for a violation of federal constitutional or statutory rights. These laws that are controlling throughout every state in the United States as the “law of the land” provide specific protection for persons claiming race, gender, and many other forms of discrimination.

These laws failed to adequately provide persons with disabilities with protection against discrimination. In response to this apparent void, Congress enacted two statutes (i.e., the Rehabilitation Act and the American with Disability Act) to provide additional protection and to extend coverage into the private sector.

Section 504 of the Rehabilitation Act of 1973 stipulates that no otherwise qualified person due to disability may be denied the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance (29 U.S.C. § 794(a)). This statute applies not only to public entities and schools, but also private “recipients” of federal aid. One of the largest categories of these entities are universities, colleges and schools. Nearly all public and most private universities and colleges are recipients. Moreover, if aid is received anywhere within a university, college or other school, the entire institution is required to comply with this Act’s provisions.

In addition to Section 504, Title II of the Americans with Disability Act of 1990 prohibits public entities (e.g., state government, public schools, public colleges) from denying qualified persons with disabilities the right to participate in or benefit from the services, programs, or activities that they provide, and from subjecting such individuals to discrimination if the exclusion or discrimination is due to the person having a disability (42 U.S.C. § 12132).

Title III of the act further prohibits entities that operate places of public accommodation from discriminating against persons with disabilities by denying them full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations they provide (42 U.S.C. § 12182(a)). Discrimination, harassment, constructive dismissal (i.e., forcing a student to withdraw), and retaliation (i.e., adverse treatment directed toward a student for having filed a complaint with the OCR, Department of Justice [DOJ], or the courts) claims are feasible under the ADA, as well as Section 504.  Private colleges (including non-recipient institutions) operate places of public accommodation and must, therefore, comply with Title II.

Due to these laws, all public and private universities and colleges are required to demonstrate compliance with applicable federal mandates. Where violations of either Section 504 or the ADA are claimed, the plaintiff first must show that he or she is disabled, as that term is defined under federal statute, and is qualified. According to these laws and the cases interpreting them a person with a disability is anyone who has a physical (e.g., quadriplegia) or mental (e.g., anxiety disorder) impairment that substantially limits one or more major life activities (e.g., learning), has a record of such an impairment (e.g., a record of having a specific learning disability), or is regarded as having such an impairment (e.g., a student who is denied admission to medical school because he is HIV positive). With respect to postsecondary education, a qualified student with a disability is one who is able to meet a program’s admission, academic, and technical standards (i.e., all essential nonacademic admissions criteria) either with or without accommodation. Thus, for a person to qualify as disabled, the disability must substantially limit” a major life activity. Clearly, “‘substantial” connotes something more than trivial or minor.

Once a student has sufficiently documented that he or she has a qualifying disability, a university or college is responsible for providing reasonable accommodations or modifications that do not result in unfair advantage, require significant alteration to the program or activity, result in the lowering of academic or technical standards, or cause the college to incur undue financial hardship. When accommodations are necessary they must be provided in a timely fashion (Smith v. State University of New York, 1997) and include, but are not limited to, adjustments in time lines for the completion of degree requirements, substitutions for course requirements, adaptation of specific courses in the way they are delivered, the use of tape recorders in classrooms (San Francisco State University, 1997), auxiliary aids such as interpreters (Indiana Department Of Human Services v. Firth, 1992), readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, or the use of a guide dog in campus buildings (34 C.F.R. § 104.44(b)). However, universities and colleges are not required to provide personal health care attendants, readers for personal use or study, or other personal devices or services (34 C.F.R. § 104.44(d)(2)).

Many current college students received either an Individualized Education Program (IEP) as is required by the Individuals with Disabilities Education Act of 1990; IDEA) or a service plan (as is required by Section 504) while in elementary and secondary schools. These students are therefore increasingly aware of their rights to accommodation while in higher education. They usually make arrangements with their university or college soon after admission for accommodations that are approved by the respective institutions.  Never the less, there still may be considerable resistance by professors to alter the way they instruct, particularly if such alteration were to accommodate a student with a mental, as compared to a physical, disability.  Many professors prefer that all students meet the same set of requirements, within the same time period (see, e.g., Morse v. University of Vermont, 1992), and in the same way, and are ill-prepared either to adapt their instruction to address the individual needs of students or to identify appropriate, fair, and reasonable accommodations. However, any failure to comply with the approved accommodations is clearly illegal.

At Sheffet & Dvorin, PC we welcome the opportunity to file lawsuits against both public and private entities including colleges and universities who discriminate including by failing to provide accommodations to individuals with disabilities including learning differences.

We have substantial expertise in litigating civil rights claims since Mr. Sheffet has almost three decades of experience defending public entities in Civil Rights actions and general negligence claims. Mr. Sheffet has also served as the Borough Attorney for a public entity the Borough of Roseland, and as Prosecutor for the Township of Verona. At Sheffet & Dvorin, PC we fight hard to protect the rights and interests of our clients, and to make their lives, and everyone in society better.

If you are the victim of discrimination you should immediately contact our firm to determine your legal rights and remedies. Often, if not always, federal law provides that the party or parties guilty of discrimination are responsible for paying your legal fees and case costs. This law exists to make sure that illegal discrimination since it is detrimental to society. These laws ensure that the affected individual or party has immediate redress without the need for worrying about how expensive attorney fees and costs will be paid. We at Sheffet & Dvorin, PC will fight for the rights of any student who has a recognized learning difference, or other disability, whose school, professor or teacher violates the law.

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The discrimination law attorneys of Sheffet & Dvorin, PC will answer your questions and help you navigate the discrimination related laws of the United States and New Jersey. The firm offers a free consultation regarding all discrimination law matters. Contact us to learn more.