Remote Learning as a Reasonable Accommodation, Deference to Educational Institutions, and Other Good Stuff

Before getting started on the blog entry of the week, I want to wish everyone celebrating Passover, a happy Passover. Also, want to wish everyone celebrating Easter this weekend, a happy Easter.

Turning to the blog entry of the day, Omar v. Wayne State University Board of Governors, here, decided by the United States District Court for the Eastern District of Michigan on April 4, 2025, is a case with a lot to unpack. Among the issues to discuss are whether attending law school remotely is a reasonable accommodation and what kind of deference is owed to educational institutions by the courts. There is other stuff too. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of Wayne State’s reasonable accommodation obligations; court’s reasoning discussing the particular accommodations at issue; courts discussion of the fundamental alteration to the program defense and how much deference it should give to Wayne State; court’s reasoning discussing whether Omar was qualified/otherwise qualified; court’s discussion of why the interactive process claim fails; court’s reasoning that sovereign immunity applies and therefore Omar is not entitled to monetary damages or retrospective relief; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections. Since there is so much going on with this case, I could definitely see the reader focusing on individual sections depending upon their interests in reading this blog entry.

I

Facts

Omar is legally blind and diagnosed with a degenerative eye disease and has been visually impaired since birth. In 2021, she was also diagnosed with postpartum anxiety and depression.

In 2020, Omar began applying to law schools, including Wayne State’s law school. Although Wayne State rejected her application, she was accepted at the University of Toledo for the fall 2021 semester. However, she ultimately only attended one week of classes there and then deferred her enrollment because of an issue with her disability related scholarship to the State of Michigan. Instead of returning to the University of Toledo, Omar reapplied to Wayne State for the fall 2022 semester and was initially waitlisted.

Around this time, the law school’s admissions officer, reached out to Omar to discuss her application, particularly how she could benefit from an improved LSAT score. Omar never retook the LSAT and Wayne State ultimately denied her second application; but it accepted her as a part-time student for the fall 2023 semester when she applied a third time.

Omar first reached out to student disability services regarding potential accommodations at Wayne State’s law school in August 2022 while her second application was waitlisted. She continued to discuss accommodation requests with student disability services and various law school faculty when she was accepted for the fall 2023 semester. However, these discussions essentially broke down around the spring of 2023 because she felt University was not receptive to the totality of her needs.

On April 26, 2023, Cherise Frost, SDS’s director, emailed Omar, stating that: (1) the University granted various accommodation requests regarding testing and technology; (2) it would allow certain limited modifications to the law school’s cold-calling practices in the classroom; and (3) it denied a request “for a fully remote, distance learning program” because this would be “a fundamental alteration to the WSU Law School’s course of study.” The email identified various proposed alternate accommodations the University believed would reasonably address Omar’s identified needs.

Omar filed suit on July 14, 2023, with all of her claims relating to student disability services and the law school’s alleged failure to reasonably accommodate her disability. Both parties moved for summary judgment.

II

Court’s Discussion of Wayne State’s Reasonable Accommodation Obligations

1. To establish a prima facie case for failure to accommodate, a plaintiff has to show that: 1) she is disabled as defined by law; 2) she is otherwise qualified for the law school program with or without reasonable accommodation; 3) University knew or had reason to know about her disability; 4) she requested an accommodation; and 5) the University failed to provide the necessary accommodation.
2. A defendant need not make an accommodation if doing so results in a fundamental alteration in the nature of the service, program, or activity or in an undue financial and administrative burden. 28 C.F.R. §35.150(a)(3).
3. Plaintiffs are not entitled to their preferred accommodation, but merely a reasonable one that provides meaningful access to the public entity.
4. Determining whether a particular accommodation is reasonable is highly fact specific and requires a case-by-case analysis.
5. Once an accommodation is requested, the school has a duty to engage in the interactive process, which is a series of informal meetings and discussions in order to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
6. A school’s failure to participate in the interactive process is actionable if the student demonstrates that: 1) the school knew about the student’s disability; 2) the student requested an accommodation; 3) the school did not show good faith in seeking appropriate accommodations; and 4) appropriate accommodations could have been provided but for the school’s lack of good faith.

III

Court’s Reasoning Discussing the Particular Accommodations at Issue

1. Documentation from student disability services shows that Omar’s therapist recommended she attend law school completely remotely and the records repeatedly referenced her request for full distance learning and a completely remote, distance learning program, among other similar phrasing. However, the record also includes a letter from Omar’s therapist stating that she required the attendance of law school to be remote part-time. Omar also provided a spreadsheet to disability services explicitly referencing distance education for classes and noting her concerns with attending class in person. In later conversations between Omar and disability services staff, there was extensive discussion about her request for distance learning, distance education, a full-time remote combination, and to the entire program being remote.
2. Omar’s husband said that Omar was merely requesting the same program alteration the law school had already provided during the pandemic when it was fully remote for all students. When disability services mentioned the possibility of allowing some remote component to the law school program, Omar proposed various alternatives to in person attendance, like meeting with professors one-on-one or having recorded lectures or having just the audio of lectures. At no point during the process did Omar refute the numerous characterizations that she sought to be fully remote for all law school programming.
3. Once Omar retained counsel, her counsel made clear that Omar intended to attend all experiential education courses, such as clinics and externships in person. Omar also testified at her deposition that she saw fully remote attendance for all classes and lectures, but was willing to attend clinics, small group discussions, and guest lectures in person. Although Omar was unsure what if any specific portions of the law school’s first year curriculum she could attend in person, she rejected the University’s characterization that she was asking for a fully remote education.
4. Accordingly, enough evidence exists to allow reasonable jurors to find in Omar’s favor concerning the scope of her reasonable accommodation request.

IV

Courts Discussion of The Fundamental Alteration To The Program Defense And How Much Deference It Should Give To Wayne State

1. There is no authority within the Sixth Circuit explaining the precise extent of deference that should be extended. That said, deference cannot be absolute or law schools could effectively avoid any liability under the ADA and related statutes by declaring any requested accommodation to be a fundamental alteration and/or unreasonable.
2. The Ninth Circuit has said that reasonable deference is one thing, but blind deference is quite another. It has also said that courts have to ensure that educational institutions are not disguising truly discriminatory requirements as academic decisions. Accordingly, educational institutions have a real obligation to seek suitable means of reasonably accommodating a person with disability and to submit a factual record indicating that they conscientiously carried out their statutory obligations. Carrying out that statutory obligation means that it is the institution’s duty to: 1) make itself aware of the nature of the student’s disability; 2) to explore alternative for accommodating the student; and 3) to exercise professional judgment in deciding whether the modifications under consideration would give the student the opportunity to complete the program without fundamentally or substantially modifying the school’s standards. It is only at that point in time when the school has done all of this, that a court defers to the institution’s academic decisions.
3. The Fourth Circuit has said that courts should assiduously review the record in order to ensure that the educational institution has conscientiously carried out its statutory obligation to provide reasonable accommodation to persons with disabilities.
4. The Third Circuit has said that when assessing a school’s judgment as to a student’s qualification for an academic program, a court should look at the following: 1) did the academic institution seek suitable means of reasonably accommodating student with a disability and submit a factual record of undertaking that obligation conscientiously; and 2) did that process lead the University to reach a rationally justifiable conclusion. The Third Circuit went on to say that courts may decline to respect a school’s judgment when the factual record shows that the school did not conscientiously consider all pertinent and appropriate information when making a decision.
5. Here, the Board failed to produce a record undisputedly (emphasis in opinion), that the University conscientiously (emphasis in opinion), explored alternatives for accommodating Omar’s disabilities.
6. Given the conflicting evidence in the record, reasonable jurors could conclude that Wayne State did not conscientiously explore alternatives for accommodating Omar’s disabilities because evidence exists that the University effectively shut down her primary request without adequate consideration of her specific disabilities and needs. For example, among other things, the student disability services director testified that disability services never actually evaluated whether Omar’s requests were reasonable in light of her disabilities, but instead denied remote learning and a research assistant as unreasonable and inappropriate accommodations for the law school (emphasis in opinion). On the other hand, evidence does exist that an interactive process did occur, at least to some extent. Accordingly, it is up to the jury to evaluate the weight and credibility of the conflicting evidence.
7. Despite purported distinction between fully remote classes and a single student attending remotely, in the post Covid-19 world and given Wayne State’s past and continuing experiences with remote learning, whether Omar’s request amounted to a fundamental alteration of law school program is a factual question for the jury.
8. A question of fact exists whether Omar wanted to attend clinics and other non-lecture programming in person.
9. It is undisputed that Wayne State’s law school was fully remote for all student beginning in 2020 during the Covid-19 pandemic, during which time it continued charging full tuition throughout that time, and the law school returned to traditional in person learning before Omar was accepted for the fall of 2023.
10. A Dean of the law school testified that law schools across the country were fully remote during the Covid-19 pandemic with no fundamental impact on Socratic teaching.
11. The head of disability services testified that law students have been granted temporary remote learning in the past in order to accommodate things like a broken leg or recovery from surgery. The record also shows that the law school continued to allow remote learning for all students during bad weather, and it raises at least a factual dispute concerning whether the law school still provide students a remote option for select classes like first year legal research and writing, where students have the option to enroll in either a fully remote or fully in person version of the same course.
12. Construing the evidence in Omar’s favor, reasonable jurors could conclude that the proposed factual distinction between an entire class being remote and only a single student being remote is without merit. In particular, the law school still uses remote learning and (emphasis in opinion), and has also previously granted temporary accommodations to allow single student to participate remotely. So, all of this supports the conclusion that Omar could do the same without fundamentally altering her legal education.
13. Practical experience also leads to the same conclusion that remote learning for Omar would not fundamentally alter her legal education. In a post Covid-19 world, technology is readily available to facilitate hybrid arrangements with only select participants being remote. While there would be practical drawbacks to such an arrangement, that is not the same thing as saying those drawbacks necessarily amount to a fundamental alteration of the law school’s Socratic teaching under the facts of the case (particularly when no one disputes that all student participating remotely during Covid-19 pandemic did not affect the fundamental nature of the program), and therefore, is a question for the jury to decide.

V

Court’s Reasoning Discussing Whether Omar Was Qualified/Otherwise Qualified

1. To be otherwise qualified, Omar bears the burden of showing that she meets the essential eligibility requirements for participation in the program with or without reasonable modification to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.
2. Since qualified/otherwise qualified depends on whether some reasonable accommodation is available to satisfy the legitimate interests of both Omar and the University, the concept of otherwise qualified/qualified and reasonable accommodation merge.
3. One element of the otherwise qualified/qualified reasonable accommodation analysis is whether an accommodation is necessary.
4. The concept of necessity requires at a minimum showing that the desired accommodation will affirmatively enhance a person with a disability’s quality of life by ameliorating the effects of the disability. In other words, there must be a direct nexus or a direct correlation between the plaintiff’s disability and the barrier to his or her [or they] equal access to the program or benefit at issue.
5. Omar has repeatedly succeeded academically when given consistent accommodations and is now successfully completing a master’s program at the University of Oklahoma.
6. A question of fact exists whether Omar would generally be able to meet the law school’s requirements with reasonable accommodations. In particular: 1) she successfully completed her undergraduate degree despite significant limitations from her blindness and even after being diagnosed with anxiety and depression; 2) she is currently on track to earn a graduate degree from the University of Oklahoma; 3) the law school actively recruited Omar and encouraged her to reapply, demonstrating at least an initial belief that she was qualified for the program; 4) Omar sought modifications to the law school’s policies and practices that she believed considering her multiple disabilities would reasonably level the playing field; 5) Omar presumably could still fully engage with Socratic questions involving general subject matter or theoretical issues that do not involve a visual reference; 6) Omar said that she would be willing to demonstrate proficiency in legal citation, but just wanted assistance with longer writing assignment to alleviate eye fatigue from her blindness, among similar concerns; 7) Wayne State said when it formally denied her remote learning requests, that they could modify cold calling practices in the classroom and would also be able to assist with securing specialized writing support in order to address her need for research assistant. Accordingly, Omar meets the minimum showing to establish necessity.
7. Omar testified extensively how her disabilities interact and affect her life and that testimony mirrored her recorded discussion with student disability services. She also testified how past accommodations, similar to those what she requested of Wayne State, allowed her to overcome the barrier created by her disabilities and how those barriers would be alleviated if she could participate in the law school with her accommodations. She told disability services the same thing.
8. Recently revised accreditation policy from the American Bar Association waived the distance education credit limit with respect to remote participation in an in person course if allowed as an accommodation under the ADA. Therefore, ABA policy contemplates remote learning as a potential reasonable accommodation in at least some circumstances.
9. The University never considered whether they could accommodate Omar’s needs with partially remote learning.

VI

Court’s Discussion of Why the Interactive Process Claim Fails

1. Omar can only sustain a claim for failure to participate in the interactive process if Wayne State did not show good faith.
2. Evidence of good faith arises when the school provides alternative accommodations in response to a student’s request or readily meets with the student to discuss the request.
3. The record at most demonstrate an honest misunderstanding as to the nature of Omar’s request, which she even seemingly acknowledged as much in her briefing.
4. While the reasonableness of the requested an alternative accommodations are a matter for a jury, the record is clear that the University acted in good faith. In particular: 1) Wayne State readily met with her numerous times during an almost 3 month period to discuss her needs and requested accommodations; and 2) Wayne State offered alternative accommodations in response to Omar’s request. Accordingly, the failure to engage in the interactive process claim fails as a matter of law.
5. The record is clear that Omar can establish for a variety of reasons that she was not the one that disengaged from the interactive process. In short, she has plenty of evidence to show that she was faced with the choice of starting law school set up to fail or abandoning law school entirely.

VII

Court’s Reasoning That Sovereign Immunity Applies and Therefore Omar Is Not Entitled to Monetary Damages or Retrospective Relief

1. Since the claims do not rise to the level of a constitutional violation, Wayne State is entitled to sovereign immunity and Omar is precluded from monetary damages or retrospective relief.

VIII

Thoughts/Takeaways

1. The interactive process is actually a Title I construct. It can be very difficult to find cases applying that construct to Title II or III, though it can be done. It is not unusual to find cases applying the interactive process construct to educational institutions, but much harder to find such application of the interactive process outside of the education environment. Even so, this case is a ringing endorsement that universities have the obligation to engage in an interactive process with a student making a reasonable accommodation request.
2. Remote learning may be a reasonable accommodation in certain circumstances.
3. The court sets a not small standard for when it will defer to a university’s decision regarding a denial of accommodations or a student with a disability. In particular: 1) it have to make itself aware of the nature of the student’s disability; 2) has to engage in the interactive process and explore alternatives; and 3) have to exercise professional judgment in the fundamental alteration analysis. With respect to professional judgment, there is a way to go about that as we discussed in this blog entry, here.
4. Before giving deference to a university, this court is looking for indications that the University conscientiously considered all pertinent and appropriate information when making their decision. Further, it must be undisputed in the record that the University acted conscientiously.
5. Technology has fundamentally changed education and that is happening at lightning speed. It is not unusual now for even residential colleges to offer classes both remotely and in person. I know the college that my daughter attends certainly does that. As a former teacher of paralegals full-time for 12 years, I can remember the day when a manual library was required. Those days are gone. Even the ABA does not require up-to-date manual law libraries for paralegal programs anymore. AI is also changing rapidly how people learn.
6. When I was teaching people how to be paralegals, my style was definitely very Socratic. I actually did teach a class where some were in the classroom and some were remote. The technology was in early days and so it wasn’t easy to do. I am sure that it is much easier to do nowadays with technology.
7. Also, when I was teaching paralegals, I did a lot of advising with respect to helping students decide on whether they should go to a law school and how they might decide going about it. For choosing the best law school for a particular individual, the key is, except for very few individuals, making sure that the student is a big fish in a small pond and ignoring what the chances of getting in might be. The big fish small pond also creates more opportunities for making law school cheaper and I am personally convinced, though it is anecdotal on my part, that it is easier for a student to get accommodations for their disability if they are likely to be a big fish in a small pond. All of the data needed for deciding whether you are going to be a big fish in a small pond can be found at the ABA-LSAC website grade calculator. A huge red flag for me in this case was the discussion of Wayne State suggesting that she get her LSAT score up. That suggestion indicates to me that she will not be a big fish in a small pond at Wayne State. With AI changing how law will be practiced and probably narrowing the opportunities for junior lawyers, big fish in a small pond becomes even more important nowadays.
8. Remember the do’s and don’ts of the interactive process, which we discussed here.
9. Qualified is the term for the ADA and “otherwise qualified,” is the term for the Rehabilitation Act. The terms mean the same thing.
10. The court’s decision makes clear that it is the disability being accommodated and not the program or activity.
11. You can simultaneously have a failure to accommodate claim go forward but a failure of the interactive process claim be denied. Keep in mind, that for this to be true, the failure to engage in the interactive process and the failure to accommodate must be separate causes of action, which isn’t the case in every jurisdiction. So, be sure to check your jurisdiction on whether there are separate claims for failure to accommodate and for failing to engage in the interactive process.
12. I don’t follow the court’s discussion of why sovereign immunity applies because it doesn’t go through all the steps. The way the steps have to go per the Supreme Court decision referenced by the Omar court is as follows: 1) is there a possible ADA violation; 2) does the ADA violation rise to the level of a constitutional violation; and 3) if the violation does not rise to a constitutional violation, is the ADA statutory scheme a proportional response to the harm meant to be redressed. For whatever reason, this court did not address prong 3 and it should have done so. One wonders if that will not be appealed. I have come across 11^th Circuit decisions holding that Title II is a proportional response to the harm meant to be redressed with respect to public places of higher education. Also, there is a whole line of cases (fair to say that it is the majority view), saying that receipt of federal funds-i.e. coverage under the Rehabilitation Act-waives sovereign immunity. I don’t know why the court did not address that point as the ADA and the Rehabilitation Act are interpreted in the same way.
13. The very first law school I got into was the University of Toledo, though I opted for the University of San Diego for my first law degree.
14. The court uses the term, “level the playing field,” which is essentially the same concept of a starting line, which we discussed here.