SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
NORTHERN MICHIGAN UNIVERSITY
UNDER THE AMERICANS WITH DISABILITIES ACT

I. INTRODUCTION

1. The parties (Parties) to this Settlement Agreement are the United States of America (United States) and Northern Michigan University (NMU or the University).

II. RECITALS

2. NMU is a four-year public university located in Marquette, Michigan.  NMU is a public entity within the meaning of the ADA, 42 U.S.C. § 12131(1)(B), and is therefore subject to Title II of the ADA, 42 U.S.C. §§ 12131-34, as amended (Title II), and its implementing regulation, 28 C.F.R. Part 35. 
3. The United States Department of Justice (Department) is responsible for administering and enforcing Title II and its implementing regulation, 28 C.F.R. Part 35.
4. This Agreement arises out of a complaint filed with the U.S. Department of Justice, Civil Rights Division, Disability Rights Section that alleged that NMU discriminated against an individual with a disability in violation of Title II.  Specifically, the Complainant alleged that NMU threatened to dis-enroll her and required her to submit to a psychological assessment and sign a behavioral agreement after she sent a chat message to a friend and fellow NMU student in which she told her friend that she has Major Depressive Disorder and her doctors are concerned that she is at risk for suicide.  The Complainant further alleged that the behavioral agreement prohibited her from engaging in any discussion of suicidal thoughts or actions with residents of her dorm, friends, or other students.  According to the Complainant, NMU took this action toward her pursuant to NMU’s Policy Relating to Student Self-Destructive Behavior.
5. In addition to the Complainant, the United States identified three (3) other current or former NMU students who alleged that NMU discriminated against them based on disability in violation Title II.  Specifically, these individuals alleged that NMU required them to: (1) meet with the Dean of Students or the Associate Dean of Students, who threatened them with disciplinary action for sharing suicidal or self-destructive thoughts with other NMU students; (2) undergo mandatory psychological assessments to maintain enrollment; (3) abide by certain conditions to maintain enrollment; and/or (4) involuntarily withdraw from NMU.  These current/former students alleged that NMU took these actions toward them pursuant to NMU’s Policy Relating to Student Self-Destructive Behavior.
6. During the course of its investigation, the Department gathered and reviewed information from the Complainant, other NMU students, and NMU.  Information the Department gathered during the course of its investigation substantiated the allegations described in Paragraphs 4 and 5, above.  Through its investigation, the United States determined that NMU’s Policy Relating to Student Self-Destructive Behavior does not reflect or impose legitimate safety requirements within the meaning of Title II of the ADA.  The United States also determined that NMU’s Dean of Students office took adverse action against NMU students with mental health disabilities who did not pose an actual risk of serious self-harm.  This action was precipitated, in some cases, by information the office received through the “Behavioral Concerns” section of the Dean of Students’ webpage, where anyone may anonymously report concerns.
7. NMU denies that it has violated Title II in any way.

III. STATEMENT OF CONSIDERATION

8. The Parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in protracted litigation.  The Parties have therefore voluntarily entered into this Settlement Agreement (Agreement).
9. In consideration of this Agreement, the United States agrees to close its investigation (DJ 204-38-127) without further enforcement action related to the facts in paragraphs 4-6, except as provided in Paragraph 23, below.
10. The Parties agree and acknowledge that this consideration is adequate and sufficient.

THEREFORE, the Parties, through their authorized representatives, hereby stipulate and agree as follows:

IV. TITLE II OBLIGATIONS AND ACTIONS TO BE TAKEN BY NMU

11. NMU will comply with the requirements of Title II of the ADA, 42 U.S.C. §§ 12131-34, as amended, and its implementing regulation, 28 C.F.R. Part 35.  Title II mandates that “no qualified individual with a disability will, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a).  Mental health conditions such as Major Depressive Disorder and Anxiety Disorder that substantially limit major life activities like eating, sleeping, learning, concentrating, thinking, communicating, and interacting with others are disabilities within the meaning of the ADA.  28 C.F.R. §§ 35.104, 35.108, 35.108(2)(iii)(K).  The ADA’s prohibition on discrimination requires that:
1. NMU, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability, deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit or service. 28 C.F.R. § 35.130(b)(1)(i);
2. NMU, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability, afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others. 28 C.F.R. § 35.130(b)(1)(ii);
3. NMU, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability, otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.  28 C.F.R. § 35.130(b)(1)(vii);
4. NMU will make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless NMU can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7)(i); and
5. NMU will not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R. § 35.130(b)(8).
12. ADA/Non-Discrimination Policy.  NMU will create an “ADA/Non-Discrimination Policy” that documents the requirements of Title II and its implementing regulation.  Specifically, NMU will:
1. Within thirty (30) calendar days, draft an “ADA/Non-Discrimination Policy” to include:
1. NMU does not discriminate against applicants or students on the basis of disability, including persons with mental health disabilities;
2. Applicants and students with disabilities have an equal opportunity to participate in or benefit from the services, programs, and activities provided by NMU;
3. NMU will make reasonable modifications to its policies, practices and procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless making the modifications would fundamentally alter the nature of the service, program, or activity;
4. For all reasonable modification determinations, NMU will conduct an individualized assessment and case-by-case determination as to whether and what modification(s) can be made to allow a student with a disability to participate in the services, programs, and activities at NMU, and to continue to participate in and benefit from NMU’s services, programs, and activities while receiving treatment for a health condition; and
5. NMU will not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.   
2. Once the United States approves the policy in accordance with Paragraph 16, NMU will promptly post the policy in the online version of NMU’s Student Handbook and in all subsequent versions of NMU’s Student Handbook for the term of this Agreement.  NMU will also promptly post the policy at http://www.nmu.edu/policies for the term of this Agreement.
13. Reasonable Accommodation Policy.  NMU will create a “Reasonable Accommodation Policy” that documents the requirements of Title II of the ADA and its implementing regulation.  Specifically NMU will:
1. Within thirty (30) calendar days, draft a “Reasonable Accommodation Policy” to include:
1. NMU is committed to providing students with disabilities an equal opportunity to participate in and benefit from its services, programs, and activities:
2. NMU provides students with reasonable accommodations in a timely manner when such accommodations are necessary to afford services, programs, and activities to individuals with disabilities, unless providing the accommodation would fundamentally alter the nature of the service, program, or activity;
3. Students with disabilities may request academic accommodations; housing and dining accommodations; modifications to University policies, rules, and regulations; environmental adjustments such as the removal of architectural, communication, or transportation barriers; and auxiliary aids and services;
4. Students should submit all requests for reasonable accommodations to NMU’s Disability Services office;
5. NMU’s Disability Services office uses an interactive process of consulting with the student and conducts an individualized assessment of each student to determine on a case-by-case basis whether and what accommodations can be made to allow a student with a disability to participate in and benefit from the services, programs, and activities at NMU, and to continue to participate in and benefit from the University’s services, programs, and activities while receiving treatment for a health condition. 
2. Once the United States approves the policy in accordance with Paragraph 16, NMU will promptly post the policy in the online version of NMU’s Student Handbook and in all subsequent versions of NMU’s Student Handbook for the term of this Agreement.  NMU will also promptly post the policy at http://www.nmu.edu/policies and http://www.nmu.edu/disabilityservices/home-page for the term of this Agreement.
14. Policy Relating to Student Self-Destructive Behavior.  While a public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.  See 28 C.F.R. § 35.130(h).  Within ten (10) calendar days, NMU will remove its Policy Relating to Student Self-Destructive Behavior from http://www.nmu.edu/policies and any other websites, handbooks, and other locations where the policy is located or referenced.  Any new proposed policy relating to student self-destructive behavior during the duration of this Agreement must be provided to the United States in accordance with Paragraph 16 of this Agreement, below.
15. Withdrawal Policies, Practices and Procedures. NMU will revise its withdrawal policies, practices, and procedures to bring them into compliance with the requirements of Title II and its implementing regulation.  NMU will refrain from using any withdrawal policy, practice, procedure, or document that discriminates on the basis of disability.  Specifically, NMU will:
    1. Within ninety (90) calendar days, revise its Voluntary Psychological Withdrawal Policy to include:
    1. The length of voluntary psychological withdrawals and any conditions for return will be based on an individualized assessment of each student and the best available medical evidence, with careful consideration given to the opinions and recommendations of the student’s treating physician or mental health professional, if available;
    2. Any student who takes a voluntary psychological withdrawal for a set length of time or with set conditions for return may seek early return from, or an extension of, the set length of time, or a change in the conditions for return.  This request will be considered after an individualized assessment of the student and appropriate medical evidence, as described above;
    3. If NMU requires a student who seeks to return from a voluntary psychological withdrawal to submit medical information, it will be in the form of the Treatment Provider Form, attached as Attachment A; and
    4. Any student whose request to return from a voluntary psychological withdrawal is denied (1) will receive a detailed written explanation of NMU’s decision not to allow the student to return, and (2) may appeal the denial of return. The policy will describe the appeals process for students who wish to make such appeal.
    2. Once the United States approves the revised Voluntary Psychological Withdrawal Policy in accordance with Paragraph 16, Defendants will promptly post the policies in the online version of NMU’s Student Handbook and in all subsequent versions of NMU’s Student Handbook for the term of this Agreement.  NMU will also promptly post the policy at http://www.nmu.edu/policies for the term of this Agreement.
16. Development and Adoption of Policies.  Upon the creation or revision of any policy, procedure, or document resulting from Paragraphs 12-15, NMU will provide a copy of such policy, procedure, or document to the United States for its approval.  The United States may provide changes to the policies or other documents when necessary to bring the policies or documents into compliance with the ADA.  NMU will adopt any changes to the policies and procedures made by the United States and will implement the revised policies for the term of this Agreement.
17. Dean of Students’ Webpage.  Within ten (10) calendar days, NMU will modify the portion of the Dean of Students’ webpage (https://www.nmu.edu/dso/) dedicated to “Behavioral Concerns.”  Specifically, NMU will replace the term “behavioral concerns” with the term “conduct concerns” on the Dean of Students’ webpage and the accompanying form (http://www.nmu.edu/dso/node/72).  To the extent that NMU students, staff, faculty, or community members contact the Dean of Students’ office to report concerns about a student’s self-harming behavior during the term of this Agreement, the Dean of Student (or designee) will do an individualized assessment of the student in order to evaluate actual risk before taking any action against the student.  As part of this individualized assessment, the Dean of Students (or designee) will consider such factors as the source and content of the information received, whether that information is reliable, and whether it is indicative of sufficient risk to justify further investigation by the University.
18. Training.  Within sixty (60) calendar days, NMU will develop a training program (ADA Training) that will be provided to the individuals identified in this paragraph within ninety (90) calendar days.  NMU will provide ADA training to: (1) the Assistant Vice President/Dean of Students and the Associate Dean of Students; (2) all Counseling and Consultation Services staff; (3) all faculty and staff responsible for receiving, evaluating, and/or deciding requests from students for reasonable accommodations; and (4) all faculty and staff responsible for receiving, evaluating, and or deciding requests from students to withdraw from NMU for physical or mental health reasons and/or requests to return from such withdrawals.
1. The ADA Training will address:
1. the requirements of Title II of the ADA, with a focus on mental health discrimination in the post-secondary education context;
2. a general overview of the terms and obligations of this Agreement (NMU will provide a copy of this Agreement to each training participant);
3. NMU’s nondiscrimination obligations under Title II of the ADA, including specifically the obligations outlined in Paragraph 11 of this Agreement as well as the policy changes outlined in Paragraphs 12-15 of this Agreement.
2. The ADA Training will be conducted by an individual or individuals with substantive legal knowledge of the ADA and who is/are not an employee(s) of NMU.  The ADA Training will be conducted live, with a group opportunity to pose questions to the individual(s) conducting the training at the conclusion of the training session.
3. For persons who must receive ADA Training pursuant to this Agreement, but who did not receive training on the designated training date required under this Agreement (for instance, because they were on leave from NMU or because they began their affiliation with NMU subsequent to the training date), NMU will provide the ADA Training to such persons within sixty (60) calendar days after the individual’s affiliation with NMU in a position covered by the ADA Training or within sixty (60) calendar days of their return to NMU (for instance, from leave).  Any training provided under this subparagraph may either be provided live or via a video recording of a previous live session of the ADA Training.  If the ADA Training is provided via a video recording, the trainer(s) meeting the requirements of the immediately preceding subparagraph will be accessible to directly answer any questions a participant may have after viewing the video presentation.
4. NMU will send the United States the proposed curriculum for the training, as well as the name(s), qualifications (including resume(s)), and contact information of the individual(s) who will conduct the training, within forty-five (45) calendar days.  NMU will incorporate the United States’ proposed changes to the training curriculum.  
5. For each session of the ADA Training conducted under this Agreement (including for each instance of the ADA Training conducted on a non-designated training date pursuant to subsection c of this paragraph), NMU will maintain attendance logs reflecting the date of the training, names and titles of attendees, and the attendees’ signatures.
19. Reporting. 
1. Initial Report: In ninety (90) calendar days, NMU will submit a report to the United States confirming its implementation of the policies referenced in Paragraphs 12-15, as well as its fulfillment to that date of the training requirements to date in Paragraph 18.  NMU will provide the United States with copies of the ADA Training attendance logs maintained to date pursuant to Paragraph 18(e).
2. Subsequent Reports: Every six (6) months, NMU will submit a report to the United States regarding its compliance with the Agreement.  This report will include, for the period subsequent to its immediate prior report to the United States, the following:
1. All dates of any ADA Trainings conducted pursuant to this Agreement;
2. Copies of all attendance logs from any and all ADA Trainings conducted pursuant to this Agreement;
3. Its continued fulfillment of the publication obligations of Paragraph 12-15; and
4. Copies of any written explanations NMU provided to students pursuant to Paragraph 14(a)(iv).
3. Immediate Reports: During the term of this Agreement, NMU will notify the United States within ten (10) calendar days of NMU’s:
   1. Decision to involuntarily withdraw any student for psychological reasons. Such notification shall include all documents (including, but not limited to, internal and external email correspondence) relating to the decision. 
   2. Knowledge of any lawsuit, complaint, charge, or other allegation that NMU has engaged in disability-based discrimination and/or violated the ADA.  Such notice will include, at a minimum, a description of the nature of the allegation, the name(s) of the individual(s) bringing the allegation, and all documentation possessed by NMU relevant to the allegation. 

V. MONETARY DAMAGES TO AGGRIEVED PERSONS

20. Within thirty (30) calendar days of NMU’s receipt of the completed releases attached hereto as Attachment B and receipt of completed IRS Form W-9’s for each individual, NMU agrees to pay a total of one hundred seventy-three thousand five hundred dollars ($173,500) in damages to the aggrieved persons identified by the United States in Attachment C.  NMU will make these payments in the amounts specified in Attachment C by checks made payable to the aggrieved persons in their full legal names as identified in the completed versions of Attachment B.  NMU will deliver these checks by overnight mail to counsel for the United States.

IMPLEMENTATION AND ENFORCEMENT

21. The United States may review compliance with this Agreement at any time.  NMU agrees to cooperate with the United States in any review of compliance with this Agreement.  Upon reasonable notice, NMU will permit counsel for the United States to inspect all non-privileged records pertinent to this Agreement.
22. The Parties will endeavor in good faith to resolve informally any differences regarding interpretation of or compliance with this Agreement prior to initiating court action.  If the United States believes that NMU has failed to perform in a timely manner any act required by this Agreement, or has otherwise not acted in conformance with any provision thereof, whether intentionally or not, the United States will notify NMU in writing of its concerns.  NMU will have thirty (30) calendar days from the date of the United States’ notification to cure the breach.
23. If the Parties are unable to reach a resolution within thirty (30) calendar days, the United States may file a lawsuit for breach of this Agreement, or any provision thereof, in the United States District Court for the District of Western Michigan.  In any such action, NMU consents to and agrees not to contest the exercise of jurisdiction over it by this Court.  NMU further acknowledges that venue in this Court is appropriate and agree not to raise any challenge on this basis.
24. In the event the United States files a civil action as contemplated by Paragraph 23, above, to remedy breach of this Agreement, the United States may seek, and the Court may grant as relief, the following: (1) an order mandating specific performance of any term or provision in this Agreement, without regard to whether monetary relief would be adequate; and (2) any additional relief that may be authorized by law or equity.  If such civil action is filed, NMU expressly agrees not to count the time during which this Agreement is in place, or use the terms or existence of this Agreement, to plead, argue, or otherwise raise statute of limitations, estoppel, or laches as defenses.
25. Failure by the United States to enforce any provision of this Agreement will not operate as a waiver of the United States’ right or ability to enforce any provision of this Agreement.

VII. DURATION, EXECUTION AND OTHER TERMS

26. The effective date of this Agreement is the date of the last signature below.  All durations specified in this Agreement run from the effective date of this Agreement unless otherwise indicated.
27. This Agreement may be executed in multiple counterparts, each of which together will be considered an original but all of which will constitute one agreement.  Facsimiles of signatures and electronically transmitted signatures will constitute acceptable, binding signatures for purposes of this Agreement.
28. This Agreement will remain in effect for three (3) years.
29. This Agreement and the attachments hereto constitute the complete agreement between the Parties on the matters raised herein.  No prior or contemporaneous communications, either written or oral, or prior drafts will be relevant or admissible for purposes of determining the meaning of any provision herein or in any other proceeding.
30. The undersigned represent and warrant that they are fully authorized to execute this Agreement on behalf of the entities indicated below.
31. This Agreement is governed by and will be interpreted under the laws of the United States.  For purposes of construing or interpreting this Agreement, it will be deemed to have been drafted by all Parties and will not be construed or interpreted against any party for that reason in any subsequent dispute.
32. Except where this Agreement expressly conditions or predicates performance of a duty or obligation upon the performance of a duty or obligation by another party, the performance of one party’s duties or obligations under this Agreement will not be discharged or excused by the actual or alleged breach of the duties and obligations by another party.
33. Should any provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions will not be affected thereby and said illegal or invalid part, term or provision will be deemed not to be a part of this Agreement.
34. The Parties agree that they will defend this Agreement against any challenge by any third party.  In the event that this Agreement or any of its terms are challenged by a third party in a court other than the United States District Court for the Western District of Michigan, the Parties agree that they will seek removal and/or transfer to the United States District Court for the Western District of Michigan.
35. This Agreement may be modified only with the written consent of the Parties.  Any modification must be in writing and signed by the Parties through their authorized representatives.
36. This Agreement is not intended to remedy any other potential violations of the ADA or any other law that is not specifically addressed in this Agreement.  Nothing in this Agreement changes NMU’s obligation to otherwise comply with the requirements of the ADA. 

AGREED AND CONSENTED TO:

FOR THE UNITED STATES OF AMERICA:

FOR NORTHERN MICHIGAN UNIVERSITY:

Attachment A: TREATMENT PROVIDER FORM

Dear Provider: You have been asked to complete this form as part of the process by which students returning from extended time away from campus are transitioned back into the university.  We want to ensure that students are able to participate in Northern Michigan University’s campus community, with or without reasonable accommodations, and that we put in place all that is necessary to help students be successful.  Your assessment and recommendations are an integral part of this process.  Please contact the ___________________ at ____________ if you have any questions or concerns.  Please mail completed forms to: ________________________________ or fax to our confidential fax line ________________. 

PART I: TO BE COMPLETED BY STUDENT

Name of student:____________________________ Class year:       ___________________
Date of withdrawal:    _______________________________
Application to be Reinstated to:         □  Fall              □  Winter         □ Summer       Year:_______
Undergraduate college/Graduate department: _________________________________________
Provider(s) seen since withdrawal:__________________________________________________

 

I hearby authorize _____ to obtain information from the treatment provider listed below for the purposes of evaluating my request to return to NMU.  I understand that this authorization is voluntary and I may refuse to sign it.  This authorization will expire 180 days from the date on which I sign it.  I understand that I may revoke this authorization at any time by providing written notice to ____________________________. 

Signature: ______________________________       Date: ______________________________

PART II: TO BE COMPLETED BY TREATMENT PROVIDER

Name of Provider: ________________________     Degree: ____________________________
Address: ___________________________   City: ____________________ State: ______
Telephone: ________________________     Fax:________________________________
Email:  ____________________________                                                               

1.  Please describe the date(s) (i.e., beginning and end of treatment, and frequency) and type(s) of treatment provided.

2. (a) Do you have concerns about the student’s capacity to carry out substantial self-care obligations?

□  No concerns
□ Minor concerns
□ Moderate concerns
□  Student is unable or unwilling to carry out substantial self-care obligations

If you have indicated moderate concerns or believe that the student is unable or unwilling to carry out substantial self-care obligations, please explain below, including any recommendations on mitigating such concerns:

2. (b) Do you have concerns about the student as it pertains to his or her personal safety?

□  No concerns
□  Minor concerns
□  Moderate concerns
□  Student presents an actual risk of serious self-harm

If you have indicated moderate concerns or you believe the student presents an actual risk of serious self-harm, please explain below, including any recommendations on mitigating such concerns:

2. (c) Do you have concerns about the student as it pertains to the safety of others?

□  No concerns
□  Minor concerns
□  Moderate concerns
□  Student poses a significant risk to the safety of others

If you have indicated moderate concerns or you believe the student poses a significant risk to the safety of others, please explain below, including any recommendations on mitigating such concerns:

3.  Please tell us if continuing treatment is recommended upon return to school.  (Be sure to specify the type, frequency and duration of care you recommend, and the symptoms or functional difficulties that on-going treatment may need to address.)

 

Dated:  ___________________