[Ed. 2020: universities don’t want to get sued for giving students covid. remote. 2021: universities don’t want to discount tuition for remote instruction. no remote. see a theme? $$$$$]

Scholars question the legality and morality of Cornell’s refusal to consider requests from faculty to teach online — even requests “premised on the need for a disability accommodation.”

By Elizabeth Redden
August 13, 2021

Cornell University said this week it will not consider any faculty requests to teach remotely instead of in person, not even from those seeking accommodations for chronic illnesses or disabilities.

Scholars questioned the legality and the wisdom of Cornell’s stance in light of the ongoing COVID-19 pandemic. The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to individuals with disabilities who are qualified to fulfill the “essential functions” of a given job.

Michael Kotlikoff, Cornell’s provost, and Lisa Nishii, vice provost for undergraduate education, said in a letter to faculty and instructional staff Wednesday that Cornell has determined that face-to-face instruction is vital to the resumption of “normal operations.”

“In-person teaching is considered essential for all faculty members and instructional staff with teaching responsibilities,” Kotlikoff and Nishii wrote. “Accordingly, the university will not approve requests, including those premised on the need for a disability accommodation, to substitute remote teaching for normal in-person instruction. For individuals with disabilities, the university routinely works to explore a wide array of possible workplace accommodations. Any faculty member in need of any disability-based accommodation should contact the Medical Leaves Administration office (MLA). For individuals who are not able to perform the essential functions of their position because of a disability, MLA can advise them of other options, including the availability of a medical leave.”

Some criticized the policy as unfeeling toward faculty who are immunocompromised or who have other medical conditions that make them more vulnerable to severe outcomes should they contract COVID-19.

“We teach because we enjoy it, and it’s rewarding,” said Rebecca Harrison, a Ph.D. Candidate in Cornell’s Department of Science & Technology Studies who represented graduate students on Cornell’s reopening committee last year. “And all of a sudden when we don’t feel supported, or our health matters less than the institution’s success, it’s demoralizing and eventually it’s not sustainable.”

Ruth Colker, an expert on disability law and the Distinguished University Professor and Heck Faust Memorial Chair in Constitutional Law at Ohio State University, questioned the legality of Cornell’s approach. “I would say they got bad legal advice,” she said. “Historically, employers have been given some deference if they put in writing what the essential qualifications are before the person made the request for accommodations. But we have an unusual situation right here because last year Cornell and other universities told students that they could accept their tuition and provide them with an appropriate education through all-online instruction.”

Colker added that the process of seeking reasonable accommodation is “supposed to be an interactive good-faith dialogue, in this case between an employer and an employee. The employer is supposed to refrain from having a priori conclusions about what would be reasonable in a particular circumstance, That’s why I’m shocked by Cornell putting this in writing in the way they did. It seems to me they’re violating that basic principle.”

Arlene S. Kanter, a professor of law and director of the Disability Law & Policy Program at Syracuse University, agreed.

“The whole point of the ADA is to provide an opportunity for an employee to have an individualized, interactive conversation with their employer about the appropriateness of an accommodation,” she said. “Blanket rules that would prohibit an individual with a disability from showing that in their individual case they’re entitled to an accommodation would be disfavored by any court throughout the country.”

Kanter also said that while employers do not have to provide an accommodation if doing so would present an “undue hardship,” she thinks a university would be unsuccessful in arguing that allowing a professor with a documented disability to teach online would present such a hardship.

“For the past year and a half people have been teaching remotely,” she said. “If they could do it then, why would it be an undue hardship now?”

Cornell declined requests for an interview about the policy on Thursday. In their letter, Kotlikoff and Nishii emphasized the safety protocols Cornell has put in place. The university is mandating vaccination against COVID-19, as well as requiring students to wear face masks indoors and to participate in surveillance testing.

“As has been repeatedly demonstrated over the course of the pandemic, the university has taken a careful and rigorously scientific approach to such risks, aimed at pursuing its academic mission while placing the highest priority on campus and community health,” they wrote. “Our plan for the fall semester is designed to minimize the risk of virus transmission and provide a safe environment for learning and discovery. While some transmission has been observed elsewhere among groups of people with substantial vaccination rates (for example, the CDC reported on a cluster in Provincetown, Mass., where roughly three-quarters of those involved were vaccinated), our on-campus vaccination rate of 94 percent is higher than those other instances. Moreover, the populations in which these outbreaks occurred were not protected by regular testing, nor did they use masks at the level that they will be used by the Cornell community.”

Sami Schalk, an associate professor of gender and women’s studies at the University of Wisconsin-Madison, said Cornell’s protocols are “great safety measures that will protect probably the vast majority of their campus. But there are many disabled folks or immunocompromised people who have been pretty hyper-isolated over the past year and a half. To force them out, it’s just unconscionable.”

Schalk said that while she’s heard from other professors that their institutions have verbally discouraged faculty from seeking remote teaching as an ADA accommodation, she was surprised by Cornell putting such a policy in writing. “It is hard enough for disabled people to work and learn at many universities and this will force people out in a way that sets us back in terms of disabled people having access to higher ed,” she said.

Ellen Samuels, a disabilities studies expert at UW Madison and a professor in the departments of English and gender and women’s studies, called Cornell’s policy “morally questionable” and one that “flies in the face of all the claims about diversity, equity and inclusion that universities are fond of making these days.”

“You’re taking a group of people who worked very hard and took a lot of personal risk to keep the university going and now the university is turning around and saying, not only will we not grant you the ability to make your own choices about how much risk to take this fall, but we won’t even consider fully documented ADA accommodations requests that go through the usual university channels — even though the number of people who can make those requests and access that medical documentation is so small at a large university like Cornell,” Samuels said. “The message that’s being sent is we care so little about your labor and your safety that we’re willing to risk breaking the law in order to force you into the classroom.”