MEMORANDUM - Stetson University



21st Annual National Conference on Law and Higher Education

Stetson University College of Law

Clearwater Beach, Florida

February 10-12, 2000

THE SCOPE OF THE UNIVERSITY’S RESPONSIBILITY TO ACCOMMODATE DISABLED STUDENTS

Teri B. Goldman

Blackwell Sanders Peper Martin, LLP

St. Louis, Missouri

Post-secondary students with disabilities are protected from discrimination by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, et seq. (“Section 504”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”). These laws prohibit discrimination on the basis of disability,[1] and as applied to colleges and universities, require institutions to make reasonable accommodations for students with disabilities. In most instances, the two statutes impose parallel requirements upon colleges and universities, and court interpretations of the two are largely interchangeable.

The enrollment of persons with disabilities in post-secondary education has increased. This may be partly a result of the identification requirements of the Individuals with Disabilities Education Act (“IDEA”).[2] It also may be the result of the expansion of post-secondary educational opportunities to previously unrepresented populations as well as the spiral effect of legislation resulting from the requirements to accommodate disabled students. With this increased enrollment, there has been a concomitant increase in the litigation with respect to the accommodations that colleges and universities must make for disabled students. In such litigation, to prevail on a disability claim, a student must prove that (a) he or she is disabled or handicapped within the meaning of the laws, (b) the student is otherwise qualified for participation in the educational program, and (c) the institution denied the students request for a reasonable accommodation. See Bercovitch v. Baldwin School, Inc. 133 F. 3d 141, 154 (1st Cir. 1998) (applying ADA and Section 504 to private school); Axelrod v. Phillips Academy, Andover, 46 F. Supp. 2d 72, 83 (D. Mass. 1999) (applying ADA to private high school).[3] Each of these elements implicates an institution’s policies and procedures.

Definition of Disability. Many higher education disability cases address whether a student is “disabled” under federal law. Under both Section 504 and the ADA, a disability is defined as “a physical or mental impairment which substantially limits one or more . . . major life activities.” See 29 U.S.C. §§ 706(8)(B); 42 U.S.C. § 12102(2)(A). Federal regulations further define “major life activities” to include such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, learning, and working. 45 C.F.R. § 48(j)(2)(ii). The Supreme Court added its interpretation to these definitions in a trilogy of 1999 employment cases that promise to have a significant impact on the threshold requirements for student claims.

Some impairments obviously substantially limit a major life activity. For example, a person who is blind is substantially limited in the major life activity of seeing. However, what about the individual who is near-sighted? Whether an impairment substantially limits a major life activity is determined on a case-by-case basis. Sometimes, such impairments limit activities if the impairment goes untreated, but is not limiting when the individual is treated and takes corrective medication or other measures. In the past, courts have disagreed about whether the effect of the impairment should be evaluated with or without such mitigating measures. However, this issue was settled by the Supreme Court’s recent decisions in Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999), Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999), and Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2169 (1999). In each of these cases, the Court concluded that mitigating measures must be considered in making the determination as to whether an individual is disabled for purposes of the ADA.

In Sutton, the plaintiffs were twin sisters who were near-sighted. 119 S. G. at 2143. They had been working as pilots for many years; but, when they applied to be commercial pilots for United Airlines, they were turned away. The twins had 20/20 vision when wearing glasses, but without correction their vision was worse than 20/100, which was the weakest uncorrected vision United would accept among their pilots. The twins claimed that they were disabled because, without mitigating measures (corrective lenses), their impairments would be disabling, and that when United refused to hire them because of their impairment, the company regarded them as disabled. See Id. at 2143-44.

The Court held that the twins were not disabled under the ADA because they are not “substantially limited in a major life activity” when they wear glasses. Concluding that ADA plaintiffs’ impairments are to be evaluated in their mitigated state, the Court rejected plaintiffs’ argument that they should be evaluated in their unmedicated state as an “impermissible interpretation,” contrary to the plain meaning of the ADA. See Id. at 2145-46. The Court’s conclusion was predicated on several grounds. First, the definition of disability as an impairment that “substantially limits” a major life activity is in the present indicative tense, indicating that it applies to people as they stand before an employer (or a court) in the real world, not as they “might,” “could,” or “would” if they did not mitigate their impairments. See Id. at 2146-47. Second, the ADA requires that disability be determined on an individual basis, rather than by lumping all individuals with some impairment into an automatically disabled group. See Id. at 2147. Third, the initial “findings” section of the ADA identifies 43 million disabled Americans. The Court viewed this headcount as strong evidence in support of its reading of the ADA because (a) requiring inclusion of all individuals who would be disabled if unmitigated would result in many more “disabled” Americans -- more than 160 million -- than provided for in the statute; and (b) the studies on which the 43 million was apparently based reflect the assumption that only those who are disabled even when mitigation is taken into account are truly disabled. See Id. at 2146-49.

The Court also concluded that merely because United imposed a physical requirement on job applicants did not mean it viewed individuals who could not meet that requirement as disabled. Rather, an employer violates the ADA only when it bases an adverse employment action on a “real or imagined” impairment that is regarded as substantially limiting a major life activity. Id. at 2150. As the Court explained, “an employer is free to decide that physical characteristics or mental conditions that do not rise to the level of an impairment . . . are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” Id.

Thus, assuming without deciding that “working” is a major life activity (an assumption about which the Court expressed serious doubt), the Court reasoned that, at most, United regarded Sutton’s vision impairment as precluding her from working only as a commercial airline pilot. In that situation, working in that limited capacity did not qualify as a major life activity because airline pilot is not a “broad class of jobs.” Therefore, the plaintiff was not substantially limited in her ability to work. See Id. at 2151-52.

Similarly, the plaintiff in Murphy, whose job as a mechanic required him to drive large trucks on road calls and in road tests, was fired when he could not qualify for a valid U.S. Department of Transportation (“DOT”) health card because his blood pressure exceeded DOT health standards. See Id. See also Murphy v. United Parcel Service, 946 F.Supp. 872, 875-76 (D. Kan. 1996) (detailed factual findings), aff’d, 119 S. Ct. 2133 (1999). Without that card, the plaintiff could not legally engage in an essential part of his job. However, with his blood pressure medication, he was able to perform all of the daily activities an unimpaired person could, other than repetitively lift very large weight. Without the medication, the plaintiff’s blood pressure would have been high enough to require hospitalization.

In pursuing an ADA claim, Murphy alleged that he was entitled to protection under the ADA because he was disabled by his high blood pressure, which would incapacitate, if not kill, him if he stopped mitigating its effects with medication. Moreover, he argued that even if he wasn’t disabled, UPS regarded him as disabled. However, as in Sutton, the Court held against him, incorporating Sutton’s reasoning by reference. The Court concluded that, like Sutton, Murphy must be assessed in his mitigated state, that is, while medicated. See Id. at 2137-39.

The plaintiff in Albertson’s, also a truck driver, was fired when he did not qualify for a DOT health card. 119 S.Ct. 2165-66. The plaintiff in that case suffered from severe amblyopia, or “lazy eye,” such that he is practically blind in one eye. However, he managed to adapt to his vision impairment, and was able to perform most functions as any other person with normal stereoscopic vision. Unlike Murphy, however, this plaintiff obtained a waiver from the DOT as part of a study on the safety performance of monocular drivers. His employer, though, refused to reinstate him and instead continued to rely on the base DOT requirements. See Id.

Speaking to the issue of disability, the Court corrected the lower court’s approach to disability determination. Id. at 2167. First, the Court stated that merely performing a major life activity in a “different manner” was not a “significant restriction” and, therefore, does not substantially limit that activity. Rather, the ADA is concerned “only with limitations that are in fact substantial,” not with those that are merely different. See Id. at 2168. Second, courts must consider a plaintiff’s ability to compensate for his impairment. Mitigation by the body’s own systems must be considered on the same basis as mitigation by medication and other treatment. See Id. at 2168-69. Third, the Court emphasized that all disability determinations must be made on an individualized basis. See Id. at 2169.

Now, when determining whether an individual is “substantially limited” in a major life activity, a court must consider the effects of any corrective measures that person is taking, including medication. See Sutton, 119 S. Ct. at 2146-47 (“`disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken”); Murphy, 119 S. Ct. at 2137. But in a more general sense, Sutton, Murphy, and Albertsons indicate that plaintiffs should be viewed as they are in real life, taking into account the impairments from which they suffer and the things they do to mitigate those impairments.

Taken together, these cases emphasize that the ADA requires individualized disability assessments. Thus, students clearly cannot base their claims of disability on a mere diagnosis. Moreover, colleges and universities should not base decisions about reasonable accommodations solely on a student’s diagnosis. For colleges and universities, the implication of the Court’s trilogy of cases means policies and procedures should be designed to avoid decisions with respect to student’s disabilities that are based on broad classifications of impairments or on stereotypes about the significance of the limitation created by the impairments from which students suffer. Significantly, the mere fact that mitigation exists does not necessarily mean that an individual is not disabled. Under the ADA or 504, an attempt at mitigation may fail; it may reduce the severity of an impairment, but not to a level at which it ceases to be disabling; or it may be disabling in its own right. This means that institutions must have legitimate, nondiscriminatory, and individualized explanations for adverse decisions regarding who is deemed disabled or what accommodations will be provided.

This recent Supreme Court precedent already has been applied in the higher education setting. More specifically, in Pacella v. Tufts University School of Dental Medicine, 66 F. Supp. 2d 234 (D. Mass. 1999), the plaintiff, a former student who suffered from severe amblyopia and myopia, sued under Section 504 and the ADA after he was dismissed for failing to perform at an acceptable academic level. With corrective lenses, plaintiff still suffered from slightly myopic monocular vision which left him without depth perception. However, he used visual cues to compensate for the lack of depth perception and the corrective lenses “allowed him to function ‘like a normal person [except it was] a little bit harder for him [to read] really fine print.’” Based on this fact, the court concluded that such an impairment did not sufficiently distinguish him from the general population so as to be a substantial limitation on the major life activity of seeing. In analyzing the merits of the plaintiff’s case, the court credited the plaintiff’s statements that he had some problems with academic instructional devices such as the blackboard and overhead projector, that he could not use a coded answer sheet normally, and that he was somewhat slower than his classmates when he performed assignments requiring relief delineation. Although the court acknowledged these problems could limit the general process of learning in many settings, the plaintiff failed to demonstrate he was substantially limited in his ability to learn. Accordingly, the court granted summary judgment in favor of the University because the plaintiff was not disabled as defined under the federal laws. See also Bercovitch, 133 F.3d at 155-56 (recognizing that Attention Deficit Hyperactivity Disorder could be disability, court nevertheless held that, under individualized determination, plaintiff did not demonstrate such an impairment substantially limited his learning ability, because plaintiff’s grades remained above average).

Otherwise Qualified. The Albertson decision also is significant because it held that the plaintiff was not an otherwise qualified individual. This issue arises in ADA and 504 cases because, even if a student has a physical or mental impairment that substantially limits a major life activity, the student also must demonstrate that he or she is “otherwise qualified” to participate in the college or university program at issue. The federal regulations define a qualified person with a disability as “with respect to post-secondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity.” 45 C.F.R. 84.(3)(k)(3).[4]

Applying this standard in the seminal Section 504 case, the United States Supreme Court held that a nursing school could refuse admission to its program to a deaf applicant because she did not have the requisite auditory skills to be otherwise qualified. Southeastern Community College v. Davis, 442 U.S. 397 (1979). In that case, the applicant’s hearing disability substantially interfered with her ability to understand speech and to participate in program’s

clinical training without very close individual supervision. Id. at 409-10. Because the applicant’s participation in the nursing program would have resulted in a fundamental alteration in the normal training program, the Court concluded that the college did not discriminate on the basis of disability when it denied admission. Id. As stated by the Court:

In this case, however, it is clear that Southeastern’s unwillingness to make major adjustments in its nursing program does not constitute such discrimination. The uncontroverted testimony of several members of Southeastern’s staff and faculty established that the purpose of its program was to train persons who could serve the nursing profession in all customary ways. This type of purpose, far from reflecting any animus against handicapped individuals, is shared by many if not most of the institutions that train persons to render professional services. It is undisputed that respondent could not participate in Southeastern’s nursing program unless the standards were substantially lowered. Section 504 imposes no requirements upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.

Id. at 413.

Thus, the Court defined an “otherwise qualified person” as “one who is able to meet all of a program’s requirements in spite of his handicap.” Id. at 406. Significantly, in articulating this definition, the Court specifically noted the federal regulations that “explicitly excludes ‘devices or services of a personal nature’ from the kinds of auxiliary aids” that an institution must provide and, therefore, concluded that the nursing school was not required to give “close, individual attention” to the plaintiff as a means to enable her to take part in the school’s clinical program. Id. at 409 (citing 45 C.F.R. § 84.44(d)(2)) (emphasis added). See also Aloia v. New York Law School, 1988 U.S. Dist. LEXIS 7769 (S.D.N.Y. 1988) (finding that law school’s refusal to waive its minimum GPA requirement for student with “central nervous system metabolic disorder” was not unreasonable or discriminatory where “law school has an obvious interest in maintaining meaningful academic standards” and “to preserve the school’s reputation”); cf. Doherty v. Southern College of Optometry , 659 F. Supp. 662, 672 (W.D. Tenn. 1987) (finding that refusal to alter physical education requirement for history degree would clearly be unreasonable and discriminatory).

In Albertsons, the Supreme Court held that even if the plaintiff had been disabled, he was not otherwise qualified for the job of truck driver because he did not meet the general federal vision standards to which his employer adhered. The waiver the plaintiff received from the DOT did not obviate the DOT’s own regulations, especially when the waiver was part of an experiment to determine whether monocular drivers are safe, and not a determination that it was safe for the plaintiff to drive. Thus, the Court held it was unreasonable to place the burden on the employer to prove that the DOT’s own safety regulation was a legitimate qualification when the DOT itself continued to adhere to it for most purposes.

Murphy, Sutton, and Albertsons all indicate that employers are entitled to use physical qualification standards for employment decisions without automatically exposing themselves to liability for “regarded as” discrimination as long as those standards or qualifications are not set at a level that substantially limits a major life activity. Employers may classify employees and applicants on the basis of their physical qualifications as long as those qualifications do not amount to disabilities. The fact that all three cases involved safety standards in industries where safety is a primary concern may indicate a certain sensitivity with respect to issues relating to safety even though there did not appear to be comprehensive or authoritative evidence of the need for these standards in the record.

The Albertsons Court also expressed doubt about the Equal Employment Opportunity Commission’s interpretive guideline that permits employer-imposed safety-related job qualifications in response to a “direct threat,” “which might impose a higher burden on employers to justify safety-related qualification standards than other job requirements.” The Court noted that, “it might be questioned whether the Government’s interpretation . . . is a sound one.” Albertsons 119 S. Ct. at n.15 (citing 29 C.F.R. pt. 1630, App., §§1630.10, 1630.15(b)-(c) (1998)). Safety issues have been treated with the same deference in the context of higher education. See Ascani v. Hofstra University, No. 98-7756, 1999 U.S. App. LEXIS 7654, *1-4 (7th Cir. Apr. 9, 1999) (unpublished summary judgment order) (affirming summary judgment against former graduate student’s claims that she was expelled because of her mental illness; holding that, even when behavior derives from disability, student who threatens professor is not “otherwise qualified”).

Whether an individual is “otherwise qualified” can be inextricably intertwined with whether an accommodation is reasonable. See Axelrod, 46 F. Supp. 2d at 83-84 (student with Attention Deficit Hyperactivity Disorder was not “otherwise qualified” when school made accommodations for disorder, but still failed to meet the academic standards; court deferred to school’s prescribed academic standards). Similarly, in Bercovitch, the court held that a student with Attention Deficit Hyperactivity Disorder was not otherwise qualified because he failed to meet the disciplinary requirements of the school. 133 F.3d at 154-55 (applying Section 504 and ADA). Significantly, the court stated that a “school’s code of conduct is an integral aspect of a productive learning environment” and the “law does not require an academic program to compromise its integral criteria to accommodate a disabled individual.” Id. As noted by the court, “many of the issues that arise in the ‘qualified’ analysis, also arise in the context of the ‘reasonable modifications’ or ‘undue burden’ analysis. That is, if more than reasonable modifications are required of an institution in order to accommodate an individual, then that individual is not qualified for the program.” Id. at 154.

Reasonable Accommodations. Although federal law does not mandate an individualized program for every higher education student with a disability as does the IDEA, it does require colleges and universities to make reasonable accommodations on an individually determined basis. For guidance on what constitutes a reasonable accommodation, the Section 504 regulations merely require the following:

Academic requirements. A recipient to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the program of instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adoption of the manner in which specific courses are conducted.

34 C.F.R. § 104.44(a).

Thus, Section 504 simply requires that institutions of higher education provide disabled students with those reasonable accommodations that are necessary to prevent discrimination on the basis of disability. Moreover, federal law does not require colleges and universities to take affirmative steps to identify those students who might be covered by the Act. Rather, as noted by one court, to be liable, an academic institution must have, or reasonably be expected to have, knowledge of a student’s disability. Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791 (1st Cir. 1992), cert. denied, 123 L.Ed.2d 470 (1993). See also Nathanson v. Medical College of Pennsylvania, 1990 U.S. Dist. LEXIS 3055, at *9-10 (E.D. Pa. 1990) (noting that “defendant had no apparent legal obligation to anticipate plaintiff’s alleged needs” and, although a higher education institution must make its programs accessible to otherwise qualified handicapped individuals, that does not mean that “an institution must foresee every discomfort that a program participant may have”); Murphy v. Franklin Pierce Law Center, 1995 U.S. App. LEXIS 13474 (1st Cir. 1995) (“Because Murphy never informed the Law Center that the diplopia was interfering with her ability to perform until after the end of her fourth semester, it is not chargeable with notice of this handicap before then”).

Accordingly, institutions of higher education do not have to take steps to locate and identify every student who might satisfy the definition of disabled under Section 504. Indeed, the applicable regulations specifically prohibits colleges and universities that receive federal funds from asking if an applicant is handicapped, although such schools may do so confidentially after an individual has been admitted for the purpose of providing reasonable accommodation. 45 C.F.R. § 84.42(b)(4). However, educational institutions may be put on notice that a student has a handicapping condition and requires reasonable accommodation with less than direct notice. See Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991) (finding sufficient evidence to raise issue of fact as to whether medical college had reason to know that plaintiff was handicapped where she met with administrator and informed her that she had neck and back injuries that prevented her from attending classes even where the handicap was not visibly obvious and plaintiff did not make a direct request for accommodation); Doe v. New York Univ., 666 F.2d 761 (2nd Cir. 1981) (noting that long history of mental impairments indicated that former medical student was handicapped individual). Thus, colleges and universities should have procedures to determine if a disabling condition exists and whether such students are otherwise qualified in spite of the handicap using the recent Supreme Court cases as guidance.

Moreover, the federal regulations require colleges and universities that receive federal funding to make reasonable accommodations to the “known physical or mental limitations” of otherwise qualified individuals unless the recipient can show that such an accommodation “would impose an undue hardship on the operation of its program.” 45 C.F.R. § 84.12(a). As applied to institutions of higher education, the Section 504 regulations require the provision of some “auxiliary aids” to prevent discrimination on the basis of disability. The pertinent regulation provides that

(1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

(2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.

45 C.F.R. § 84.44(d) (emphasis added).

The limiting language of § 84.44(d)(2) that expressly provides that a recipient need not provide devices or services of a personal nature may limit the litigation over auxiliary aids that current plagues public school districts with respect to IDEA matters. To date, courts have not interpreted Section 504’s reasonable accommodations or auxiliary aids provisions as broadly as the IDEA’s FAPE provisions and have allowed colleges to cite costs and the effect on the academic program as factors in denying requested services. The Bercovitch decision, arising out of a primary school setting, provides guidance for distinguishing the institutional obligations required under the ADA and Section 504 from the obligations required by the IDEA. See Bercovitch, 133 F.3d at 152-54 (ADA and Section 504 doe not transform school into special needs school; school need not modify its discipline policy top accommodate disabled student).

However, to prevail if litigation ensues over such issues, officials within the institution must have assessed the situation and come to a justifiable reason for denying a student’s request. As noted in the leading case on this issue, “[i]f an institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alternation, the court could rule as a matter of law that the institution had met its duty of seeking reasonable accommodation.” Wynne, 932 F.2d at 26. See also Guckenberger v. Boston Univ., 8 F. Supp. 2d 82 (D. Mass. May 29, 1998) (rejecting claim of class action plaintiffs with learning disabilities that university should provide course substitution for the College of Arts and Sciences’ foreign language requirements and concluding that “so long as an academic institution rationally, without pretext, exercises its deliberate professional judgment not to permit course substitutions for an academic requirement in a liberal arts curriculum, the ADA does not authorize the courts to intervene even if a majority of other comparable academic institutions disagree”). Cf. Barnes v. Converse College, 436 F. Supp. 635, 637 (D.S.C. 1977) (finding that plaintiff was otherwise qualified handicapped person who could adequately perform in academic class in which she wished to be enrolled with aid of interpreter, noting that cost of interpreter for the course was only $750 and holding that college was obligated to provide and pay for interpreter pursuant to Section 504); U.S. v. Bd. of Trustees for Univ. of Alabama, 908 F.2d 740 (11th Cir. 1990) (finding that UAB’s auxiliary aids policy that indicated that it would not provide interpreters or other “costly” aids and directing students to seek free interpreter services provided by state’s vocational rehabilitation service or other sources violated Section 504).

Although Section 504 as applied to post-secondary institutions is not as procedurally and substantively burdensome as the IDEA, colleges and universities must have procedures and practices in place to address the needs of their disabled students. First, all institutions of higher education should have procedures to determine if a student’s asserted disability constitutes a substantial limitation on a major life activity, thus entitling the student to reasonable accommodations. As part of this process, an institution is not required to accept the student’s or the student’s doctor’s or psychologist’s bare claim that the student is handicapped. Rather, the institution can and should be prepared to request recent outside assessments that substantiate a particular handicapping condition or to conduct its own evaluation if the disability is such that it is unclear as to whether a substantial limitation exists. As part of this process, the institution may need to seek guidance from individuals who have expertise in the specific disability.

Similarly, the institution must be prepared to acknowledge the existence of handicapping conditions even where a student has not directly notified the institution of Section 504 eligibility and requested reasonable accommodation. Thus, if a student has provided sufficient indication of a condition that puts the institution on notice that a Section 504 disability may exist and requests accommodations, the institution must properly respond.

Assuming the institution determines that the student qualifies for the protection of Section 504, it then needs to have a procedure by which students can request reasonable accommodations. The institution then must be prepared to respond to such requests and to justify the denial of any requests that it believes would alter the fundamental nature of its academic programs or would constitute undue hardships. Such responses and denials should not be ad hoc, unilateral administrative decisions, but should be based on an inquiry that satisfies the Wynne standard. If the institution follows such procedures, it is highly likely that a court will give that decision the oft-articulated deference due to academic decisions and highly unlikely that a court will second-guess the determination. In addition, each institution must determine whether the student or administration will be responsible for communicating the agreed upon reasonable accommodations to necessary faculty and must ensure that faculty implements all necessary reasonable accommodations.

Finally, the institution must train appropriate individuals with respect to the differing requirements of IDEA and Section 504. Those individuals can be in the forefront of orienting the institution’s Section 504 (and some previously identified IDEA) students to those differences. These students must be made aware that the extensive IDEA support system is no longer available and that they will have to meet the institution’s academic requirements to remain otherwise qualified. Proper orientation may well reduce the unrealistic expectations that such students may have and may assist in avoiding litigation.

By ensuring that such processes are in place, institutions of higher education should be positioned to appropriately respond to student requests for reasonable accommodation under Section 504 and to limit expansion of Section 504’s scope as it now applies to disabled students enrolled in colleges and universities.

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[1] Section 504 provides:

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .

The ADA provides:

[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges advantages, or accommodations of any place of public accommodation . . . .

[2] The IDEA is a federal law that provides a substantive right to a “free appropriate public education” to all children with disabilities. 20 U.S.C. § 1400 et seq.

[3] Section 504 imposes the additional requirement that the institution receives federal funds. See 29 U.S.C. § 794(b)(2)(A); Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir. 1981); Pushkin v. Regents of Univ. of Color., 658 F.2d 1372, 1384 (210th Cir. 1981).

[4] Under the IDEA, there is no “otherwise qualified” standard. All states mandate school attendance for certain aged children and, therefore, a public school district cannot deny admission to or participation in its general programs to students with IDEA disabilities.

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