College Students and Disability Law

248

College Students and Disability Law

Stephen B. Thomas, Kent State University

This article briefly reviews Section 504 and the Americans with Disabilities Act of 1990 and identifies the criteria that are used to determine whether a student is both "disabled" and "qualified." Then,

specific areas of admission, accommodation, and dismissal are examined. Finally, guidelines are presented that may be used by professors and administrators in their efforts to provide qualified students

with disabilities with nondiscriminatory access to higher education.

Today, there are more students with documented disabilities

in higher education than ever before-140,142 freshmen reported having a disability in 1996 (HEATH Resource Center,

1998). That figure represents over 9% of all freshmen (HEATH

Resource Center, 1998), as compared with only 2.6% in 1978

(HEATH Resource Center, 1995). Although the process has

been slow,

colleges

and universities

(hereafter referred to

as

&dquo;colleges&dquo;) have made their programs more and more accessible, sometimes in good faith, sometimes due to coercion by

federal agencies and courts. Only modest progress was made

between 1973 (the passage of Section 504 of the Rehabilitation Act) and 1990 (the passage of the Americans with

Disabilities Act; ADA); however, once the ADA was passed

and amended and regulations were promulgated, institutions

that had made little or no progress in making their buildings

and programs accessible increased their efforts. Presumably,

this increase in part is because of the slightly broader coverage of the ADA, publicity surrounding the passage of the

ADA, an increase in the number of administrative appeals and

lawsuits, and growth in the number of students requesting accommodation. The greater demand for accommodation can be

attributed primarily to the fact that 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, and

have become increasingly aware of their rights to accommodation while in higher education.

Of particular significance in recent years has been the

growth in the number of students with learning disabilities.

Over 35% of the freshmen in 1996 who reported having a disability were purported to have a learning disability-an increase from 24.9% in 1991 (HEATH Resource Center, 1998).

The growth in the number of students with learning disabilities has created a new challenge to professors and colleges.

Over the years, there has been considerable resistance by proAddress:

fessors 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.

This situation is ameliorated somewhat by the assistance

provided by administrative units such as Student Disability

Services (SDS). This and similar units are responsible for reviewing documentation provided by students and for making

a determination as to eligibility status and appropriate accommodations and adjustments, if any. However, such units

often are inadequately funded, given the growth in the number of students requesting accommodation, and seldom have

experts on staff who are knowledgeable about the wide range

of disabilities that colleges are now attempting to accommodate.

Organizationally, this article briefly reviews Section 504

and the ADA and identifies the criteria that are used to determine whether a student is &dquo;disabled.&dquo; Then, specific areas of

admission, accommodation, and dismissal are examined.

Finally, guidelines are presented that may be used by professors and administrators in their efforts to provide qualified

students with disabilities with nondiscriminatory access to

higher education.

Legal Protection for College Students

with Disabilities

Prior to

1973, the only federal law that provided extensive

for persons with disabilities was the Fourteenth

Amendment. That law requires states to provide for the equal

protection of persons within their respective jurisdictions and

protection

Stephen B. Thomas, 455 Dansel St., Kent, OH 44240

(e-mail: sthomas@emerald.educ.kent.edu)

249

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 where state action is responsible for a violation of federal

constitutional or statutory rights (see Thomas & Russo, 1995,

pp. 10-15). However, these laws failed to provide persons

with disabilities with specific protection, as had already been

done for persons claiming race, gender, and many other forms

of discrimination. In response to this apparent void, Congress

enacted two statutes (i.e., the Rehabilitation Act and the ADA)

to provide additional protection and to extend coverage into

the private sector.

to

Section 504

Act of 1973

of the Rehabilitation

Section 504

stipulates that no otherwise qualified person due

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. ¡ì 794(a)). Note that this statute applies only to public

and private &dquo;recipients&dquo; of federal aid (see Table 1). However,

nearly all public and most private colleges are recipients.

Moreover, if aid is received anywhere within a college, the

entire institution is required to comply with the act¡¯s provito

sions. To demonstrate compliance, a college must file an assurance of compliance (i.e., a document attesting to the fact

that the institution does not discriminate based on disability),

provide notice to participants that the recipient¡¯s program does

not discriminate based on disability, identify a specific employee to coordinate compliance, conduct a self-evaluation,

engage in voluntary action to correct those circumstances that

may have limited the participation of students with disabilities, adopt grievance procedures, and remediate violations

of the act (McCarthy, Cambron-McCabe, & Thomas, 1998,

TABLE 1.

Note.

ADA

=

p. 168). The Office for Civil Rights (OCR) is responsible for

much of the enforcement of Section 504 in educational institutions.

Americans with Disabilities Act of 1990

In addition to Section 504, Title II of the ADA 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. ¡ì 12132). The

OCR also is responsible for the enforcement of Title II of

ADA.

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, advan-

tages, or accommodations they provide (42 U.S.C. ¡ì 12182(a)).

Discrimination, harassment, constructive dismissal (i.e., forc-

ing a student to withdraw),

and retaliation (i.e., adverse treatdirected 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

(see, e.g., &dquo;Doe&dquo; v Marshall, 1995; Kapiolani Community

College, 1997; Ostrach u Regents of University of California,

1997; Rothman u Emory University, 1997; Wood v President

and Trustees of Spring Hill College, 1992). Private colleges

(including nonrecipient institutions) operate places of public

accommodation and must, therefore, comply with Title III.

The DOJ is responsible for the enforcement of Title III.

The aforementioned section provided brief discussions

of Section 504 and the ADA. Due to these laws, all public and

private colleges are required to demonstrate compliance with

applicable federal mandates. Where violations of either Secment

Applicability of Selected Federal Laws Related to Disability

Americans with Disabilities Act of 1990;

Recipient recipient of federal financial assistance.

=

250

tion 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.

Qualifying as a Person with a Disability

A person with

disability is anyone who has a physical (e.g.,

quadriplegia) 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; see also

34 C.F.R. ¡ì 104.3). 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

a

or

able

training&dquo; approach, the court found that although the

plaintiff read at approximately the same level as an average

person, her reading skills were below that of a typical law or

even college student. Accordingly, the court held that she was

otherwise qualified and had been discriminated against due to

disability; the court then required the board to accommodate

her in her effort to retake the examination and to provide reimbursement for prior test taking when accommodations were

not provided.

Another federal district court employed a third option

that is similar to the second when it concluded that the plaintiff in its case (i.e., a football player who had been declared

academically ineligible to compete in intercollegiate athletics) should have his ability to learn compared to the average

unimpaired student (Bowers u NCAA, 1998, p. 475). To this

court, the term population meant &dquo;student population&dquo; in this

context as compared to &dquo;general population.&dquo;

In contrast, another federal district court used

(i.e., all essential nonacademic admissions criteria) either with

without accommodation.

For a person to qualify as disabled, the disability must

&dquo;substantially limit&dquo; a major life activity. Clearly, &dquo;substantial&dquo; connotes something more than trivial or minor, but federal courts have disagreed beyond that point. At least four

options exist as evidenced by recent case law: &dquo;in comparison to most people in the general population&dquo;; &dquo;in comparison to the average person having comparable training, skills,

and abilities&dquo;; &dquo;in comparison to the average unimpaired student&dquo; ; and &dquo;the disparity between inherent capacity and performance.&dquo; The first of these options was discussed in Price

v National Board of Medical Examiners ( 1997), where three

medical school students with attention-deficit/hyperactivity

disorder failed to qualify as disabled because their individual

abilities, notwithstanding their disabilities, still exceeded

those of most people in the general population. Comparisons

between actual and potential performance were insufficient

alone, while comparisons of the plaintiffs¡¯ respective performance levels to those of other medical school students were

unnecessary. Federal regulations for the ADA support the

&dquo;general population&dquo; approach and state that a person is substantially limited when his or her life activities are &dquo;restricted

as to the conditions, manner, or duration under which they

can be performed in comparison to most people&dquo; (emphasis

added) (28 C.F.R. App. B to Part 36).

A second approach was used by the district court in Bartlett u New York State Board of Law Examiners ( 1997), when

an applicant was denied accommodation to take a state bar

examination. After considering the &dquo;average person&dquo; benchmark, the court selected the Equal Employment Opportunity

Commission standard for working (as compared to the life

activity of learning) in which &dquo;substantially limits&dquo; was defined as occurring when a person is &dquo;significantly restricted in

the ability to perform either a class of jobs or a broad range of

jobs in various classes as compared to the average person having comparable training, skills and abilities&dquo; (emphasis added)

(29 C.F.R. ¡ì 1630.2(j)(3)(i)). Consistent with this &dquo;comparor

a

fourth

option when it proposed that in some instances a disparity between inherent capacity and performance permits the inference that the individual has a learning disability, even though

such an individual¡¯s performance may meet or exceed that of

the ordinary person (Pazer v New York State Board of Law

Examiners, 1994). However, the court did recognize that each

had to be assessed on its merits and that every low

achiever would not necessarily qualify as disabled (see, e.g.,

Tatum u NCAA, 1998, where another court held that a student¡¯s poor performance was due to a lack of motivation, preparation, and effort, rather than disability).

Given these inconsistent interpretations by lower courts,

it is important that Congress or appellate courts resolve the

threshold standard for &dquo;substantially limits.&dquo; Presumably, if

testing agencies and colleges ultimately are held to the standard for &dquo;working,&dquo; given that both degrees and licensure are

required for employment, the demand for accommodation

could increase significantly. Nonetheless, once it is determined that a plaintiff is impaired and that such impairment

substantially limits a major life activity, it then is necessary

to ascertain whether the plaintiff also is &dquo;otherwise qualified.&dquo;

case

Otherwise

Qualified

Actually, only Section 504 employs the term &dquo;otherwise

qualified&dquo; (29 U.S.C. ¡ì 794(a)); the ADA specifies only that

the person with a disability be &dquo;qualified&dquo; (42 U.S.C. ¡ì

12112). However, for all practical purposes, the terms are

equivalent-that is, the person must be able to meet the essential eligibility requirements of a program, with or without

reasonable accommodation, in spite of the restrictions imposed by the disability. In a related case, the Supreme Court

reviewed an appeal by an applicant who was denied admission to a nursing program solely due to a serious hearing

disability (Southeastern Community College u Davis, 1979).

After exploring possible options, college officials determined

251

that there existed no reasonable accommodation that would

allow the plaintiff to safely participate in or receive the benefits of the nursing program given her dependence on lip reading. She had requested that she not be required to take clinical

courses and that a full-time supervisor be assigned to her.

Accordingly, her participation would have required major program modifications and the lowering of standards. In ruling

for the college, the Supreme Court held that the plaintiff was

not otherwise qualified and that legitimate physical requirements at times may be necessary (see also County of Los

Angeles u Kling, 1985). Furthermore, the Court noted that Section 504 did not require affirmative action, but conceded that

the distinction between accommodation and affirmative action might not always be clear.

In 1985, the Court provided additional direction when it

proposed that reasonable accommodation would allow a qualified person with a disability to have meaningful access to

a program or activity but would not require &dquo;substantial&dquo;

changes, adjustments, or modifications to an existing program,

or &dquo;fundamental&dquo; alterations in the nature of the program,

with the latter representing affirmative action (Alexander v.

Choate, 1985). With this less-than-efficacious guidance, however, it is not surprising that courts and colleges continue to

struggle in their efforts to identify reasonable accommodations and procedures that will allow for nondiscriminatory admissions and participation.

Admission

This section includes a discussion of preadmission activities,

the process used for making admissions decisions, judicial

deference that typically is given by courts, and the use of probationary admission practices. Case examples are provided

for each.

Preadmission Activities

activities include the completion of

of

the

forms,

payment fees, interviews, and testing. The apmust

be completed honestly and accurately and subplication

mitted prior to deadline. However, with few exceptions (e.g.,

efforts to correct past discrimination or voluntary action to

overcome prior limited participation of students with disabilities ; 34 C.F.R. ¡ì 104.42(c)), colleges may not make preadmission inquiries as to whether an applicant has a disability,

although postadmission inquiries may be made on a confidential basis when the disability may require accommodation

(34 C.F.R. ¡ì 104.42(b)). Also, colleges may not use a test,

first-year grades, or other criteria that have a disproportionate adverse effect on students with disabilities, unless the criteria have been validated as predictors of success in the

program and alternate measures of admission with less disparate impact are not available. Importantly, the burden of

showing that an appropriate alternative is available rests with

Typically, preadmission

the assistant secretary of education. Nonetheless, those tests

that are used must accurately reflect the applicant¡¯s aptitude

or achievement level (or whatever other factor the test purports to measure), rather than the applicant¡¯s impaired sensory, manual, or speaking skills (34 C.F.R. ¡ì 104.44(c); see

also University of Minnesota, 1995). And, admissions tests

that are designed to accommodate persons with disabilities

must be offered as often as are other admissions tests and

be made available in facilities that are accessible (34 C.F.R.

¡ì 104.42(b)(3)).

Testing accommodations may include provisions such as

large print, Braille, additional time, oral instruction, or readTwo caveats, however: Students without disabilities need

accommodated; testing services need not provide an

accommodation to a student with a disability that would &dquo;advantage&dquo; the applicant rather than simply &dquo;accommodate&dquo; his

or her disability. For example, one court has ruled that to reers.

not be

quire testing boards to grant accommodations without proof

of qualifying disabilities would allow persons to advance to

professional positions through the &dquo;proverbial back door&dquo;

(Price u National Board of Medical Examiners, 1997, p. 422).

Where appropriate and needed accommodations are

provided by testing groups (e.g., National Testing Service), it

is common that college officials are alerted (e.g., with the

placement of an asterisk by the score) to the fact that the test

was not taken under standard conditions. When an application includes a nonstandardized score, it becomes even more

important for admissions officers to thoroughly scrutinize the

candidate¡¯s file. Although the accommodated score is not necessarily comparable to an unaccommodated score, it does

provide an additional piece of information that can be used

to determine whether a student is qualified. Thus, officials

should not devalue or fail to consider the score.

In 1995, the Seventh Circuit had a case in which a law

school applicant had been denied admission based in part on

his low GPA and LSAT score (Mallett v Marquette University,

1995; see also University of Michigan, 1991 ). The examination

was nonstandard because of accommodations that were provided by the testing service. The testing service had even suggested that the test results be interpreted with great sensitivity

and that additional criteria be used. In compliance with these

recommendations, the law school admissions committee considered the score, but also gave careful attention to plaintiff¡¯s

entire file, including life experiences and background.

Following a careful review, the committee concluded that the

applicant was not qualified for admission. The plaintiff then

sued, claiming a violation of Section 504. The lower court

granted summary judgment (i.e., disposition of a controversy

without a trial when there is no genuine dispute over factual

issues) for the university; that decision was upheld on appeal.

Making the Admission Decision

Once all data are in and the admission file has been completed,

officials then attempt to determine which candidates are qual-

252

ified for admission and, in selective programs, which are comparatively better qualified. Generally, the same procedures

(e.g., grade-point average, scores on standardized and locally

administered tests, evaluation of writing samples, letters of

reference, performance during an oral interview, extracurricular activities, work and life experiences) may be used during the processing of admissions for students with and without

disabilities (Baker u Board of Regents of Kansas, 1993; Department of Justice Opinion Letter, 1996). But, admission procedures should not be designed to arbitrarily deny (e.g., to

accept evaluations performed only by MDs or PhDs when

those by persons with lesser degrees would be satisfactory) or

unnecessarily delay the admission of students with disabilities (e.g., a requirement for excessive or redundant documentation ; Guckenberger u Boston University, 1997). Moreover,

after college officials have made agreements with students as

to the requirements for admission or readmission, such agreement should be adhered to (Agron v Trustees of Columbia

University, 1993).

Although admission to many undergraduate programs is

by a single person on the basis of paper credentials, most graduate and professional programs use multiple

criteria and involve multiple people in the process. Many

determined

programs now use their own variation of a holistic model in

an effort to assess the qualities and abilities that each individual candidate could bring to the program. Although timeconsuming, such a process provides faculty and admissions

officials with comprehensive information on which to base

life-changing decisions. However, even where holistic models are not employed, most admissions officials still use multiple criteria and attempt to identify those candidates who are

best qualified from among the pool of applicants. Although a

difficult task, faculty generally undertake the process in good

faith and their decisions have typically received deference by

the courts (Southeasten Community College v. Davis, 1979).

Deference by the Courts

Over 40 years ago, the Supreme Court acknowledged that academic freedom includes the right to decide who may teach,

what is taught, how to teach, and who may be admitted to

study (Sweezy u New Hampshire, 1957, p. 263). Accordingly,

unless a related decision is arbitrary or discriminatory, lower

courts have been directed to give deference to the judgment

of educators. In a due process Fourteenth Amendment context, the Supreme Court declared that academic decisions require even less stringent procedural requirements than do

decisions based on discipline (Board of Curators of University

of Missouri u Horowitz, 1978; see also Jansen u Emory University, 1977; Lewin u Medical College of Hampton Roads,

1996). The High Court in Regents of University of Michigan

u Ewing (1985) argued that

_

when judges

a

genuinely

are asked to review the substance of

academic decision, ... they should

show great respect for the faculty¡¯s professional

judgment. Plainly, they may not override it unless

it is such a substantial departure from accepted academic norms as to demonstrate that the person or

committee responsible did not actually exercise

professional judgment. (at 225)

Many lower courts have applied this reasoning when reviewing disability discrimination cases (see, e.g., Betts u Rector

and Visitors of the University of Virginia, 1997; Doherty v.

Southern College of Optometry, 1989). In Doe u New York

University (1981), the Second Circuit proposed that

are particularly ill-equipped to evaluate academic performance ... For this reason, although

the Act requires us rather than the institution to

make the final determination of whether a handicapped individual is otherwise qualified, ... considerable judicial deference must be paid to the

evaluation made by the institution itself, absent

proof that its standards and its application of them

serve no purpose other than to deny an education

to handicapped persons. (at 776; see also Wynne v.

Tufts University School of Medicine, 1991, p. 25;

but see University of California Santa Cruz, 1993)

courts

In Doe, a former student with psychiatric and mental disorders (i.e., personality disorder, self-destructive acts, antisocial behavior) was denied readmission to a medical school

(see also Gent v Radford University, 1997). She had a lengthy

record of self-abuse, suicide attempts, and attacks on others.

In upholding the university¡¯s decision not to readmit, the court

reasoned that even if the risk of recurrence of her prior behaviors was only minimal, the university may legitimately

consider that fact in determining whether the plaintiff was

more or less qualified than were other applicants (see also Anderson u University of Wisconsin, 1988; Gill u Franklin Pierce

Law Center, 1995).

Professional judgment apparently was not exercised,

however, in a Tenth Circuit case where a previously denied

student with multiple sclerosis was found to be otherwise qualified for admission to a psychiatric residency program (Pushkin u Regents of the University of Colorado, 1981; see also

Carlin u Trustees of Boston University, 1995). When viewed

in the aggregate, the testimony and written records supported

the position that the plaintiff was denied admission based on

&dquo;assumptions of inability&dquo; and &dquo;assumed disabilities.&dquo; One of

the faculty involved in the admissions decision proposed that

although the plaintiff was teachable, face-to-face interaction

would stir feelings of guilt, pity, and rage in his clients and

that such a working environment would be too much to ask

of them or of him. Other faculty viewed him as angry, emotionally upset, of questionable health, and of less overall quality as compared to most doctors interviewed for the program.

Despite the virtual consensus of university officials as to the

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download