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College Students and Disability Law

By: Stephen B. Thomas

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 11 colleges") 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 professors 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 "disabled." 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 protection 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 to 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.

Section 504 of the Rehabilitation Act of 1973

Section 504 stipulates that no otherwise qualified person due to 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. § 794(a)). Note that this statute applies only to public and private "recipients" 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 provisions. 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, 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. § 12132). The OCR also is responsible for the enforcement of Title 11 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, advantages, or accommodations they provide (42 U.S.C. § 12182(a)). Discrimination, harassment, constructive dismissal (i.e., forcing a student to withdraw), and retaliation (i.e., adverse treatment directed 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., "Doe " v. Marshall, 1995; Kapiolani Community College, 1997; Ostrach v. Regents of University of California, 1997; Rothman v. 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 111. 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 Section 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.

Table 1. Applicability of Selected Federal Laws Related to Disability
Federal law Compliance by public recipient required Compliance by public nonrecipient required Compliance by private recipient required Compliance by private nonrecipient required
Fourteenth Amendment equal protection clause yes yes No No
Fourteenth Amendment due process clause yes yes No No
Section 1983 yes yes No No
Section 504 yes No yes No
ADA Title II yes yes No No
ADA Title III No No yes yes

Note. ADA = Americans with Disabilities Act of 1990; Recipient = recipient of federal financial assistance.

Qualifying as a person with a disability

A person with a disability is anyone who has a physical (e.g., quadriplegia) or 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. § 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 (i.e., all essential nonacademic admissions criteria) either with or without accommodation.

For a person to qualify as disabled, the disability must substantially limit" a major life activity. Clearly, "'substantial" 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: "in comparison to most people in the general population"; "in comparison to the average person having comparable training, skills, and abilities"; "in comparison to the average unimpaired student"; and "the disparity between inherent capacity and performance." 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 "general population" approach and state that a person is substantially limited when his or her life activities are "restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people"' (emphasis added) (28 C.F.R. App. B to Part 36).

A second approach was used by the district court in Bartlett v. New York State Board of Law Examiners (1997), when an applicant was denied accommodation to take a state bar examination. After considering the "average person" benchmark, the court selected the Equal Employment Opportunity Commission standard for working (as compared to the life activity of learning) in which "substantially limits" was defined as occurring when a person is "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" (emphasis added) (29 C.F.R. § 1630.2(j)(3)(i)). Consistent with this "comparable training" 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 v. NCAA, 1998, p. 475). To this court, the term population meant "student population" in this context as compared to "general population."

In contrast, another federal district court used 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 case had to be assessed on its merits and that every low achiever would not necessarily qualify as disabled (see, e.g., Tatum v. 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 "substantially limits." Presumably, if testing agencies and colleges ultimately are held to the standard for "working," 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 "otherwise qualified."

Otherwise qualified

Actually, only Section 504 employs the term "otherwise qualified" (29 U.S.C. § 794(a)); the ADA specifies only that the person with a disability be "qualified" (42 U.S.C. § 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 v. Davis, 1979). After exploring possible options, college officials determined that there existed no reasonable accommodation that would allow the plaintiff to safely participate in or receive the benefits of the nursing pro gram 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 v. 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 "substantial" changes, adjustments. or modifications to an existing program, or "fundamental" 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

Typically, preadmission activities include the completion of forms, the payment of fees, interviews, and testing. The application must be completed honestly and accurately and submitted 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. § 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. § 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 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. § 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. § 104.42(b)(3)).

Testing accommodations may include provisions such as large print, Braille, additional time, oral instruction, or readers. Two caveats, however: Students without disabilities need not be accommodated; testing services need not provide an accommodation to a student with a disability that would "advantage" the applicant rather than simply "accommodate"' his or her disability. For example, one court has ruled that to require testing boards to grant accommodations without proof of qualifying disabilities would allow persons to advance to professional positions through the "proverbial back door" (Price v. 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, 199 1). 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 qualified 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 v. 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 v. 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 determined 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 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 time consuming, 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 v. 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 v. Horowitz, 1978; see also Jansen v. Emory University, 1977; Lewin v. Medical College of Hampton Roads, 1996). The High Court in Regents of University of Michigan v. Ewing (1985) argued that

when judges are asked to review the substance of a genuinely 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 v. Rector and Visitors of the University of Virginia, 1997; Doherty v. Southern College of Optometry, 1989). In Doe v. New York University (198 1), the Second Circuit proposed that

courts 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)

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 v. University of Wisconsin, 1988; Gill v. 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 v. Regents of the University of Colorado, 198 1; see also Carlin v. 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 assumptions of inability" and "assumed disabilities." 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 plaintiff's comparative qualifications, the trial court concluded that the plaintiff was otherwise qualified and ordered his admission. That decision was upheld on appeal.

Probationary admission

At times, colleges elect to place students in remedial, preadmission, or special programs, rather than admit them to regular programs. This often occurs when the traditional indicators of success are low, but the student still shows the potential to succeed (possibly during an interview or review of the applicant's portfolio). Many probationary students prove that they are capable of meeting program requirements and eventually graduate; others, however, never fulfill their perceived potential and drop out or are academically dismissed (see section below).

In Maine, a transfer student with a learning disability and Tourette's syndrome was assigned to a program specifically for students with learning disabilities, rather than admitted into the regular program (Halasz v. University of New England, 1993). The plaintiff's college GPA and standardized test scores were low; moreover, he received the lowest possible scores on both timed an d untimed reading tests. While in the special program, the plaintiff received regular advising, peer tutoring, some taped texts, proctored untimed tests, and oral tests. Moreover, readers and writing and reading specialists assisted him. However, the plaintiff failed to produce at a level that would support his admission to the regular undergraduate program. The student then filed suit claiming disability discrimination. The court disagreed and held that the plaintiff was not otherwise qualified for regular admission.

Similarly, in 1996 in Virginia a federal district court refused to provide a preliminary injunction (i.e., an order issued prior to the resolution of the complaint, given foreseeable injury to the plaintiff and the likelihood of success of the claim) and later (1997) granted summary judgment in a case where a postbaccalaureate student with a learning disability failed to show that he was otherwise qualified for medical school (Betts v. Rector and Visitors of University of Virginia). The plaintiff had difficulties with short-term memory and reading speed, uneven cognitive processing skills, and a mild learning disability. The program to which he had previously been admitted was designed to assist economically disadvantaged and minority students in their efforts to prepare for medical school. Once officials learned of the plaintiff's disabilities, they provided accommodation in each of his classes by increasing the time for him to take course examinations. Although the plaintiff's performance improved with this accommodation, it was the opinion of officials that his performance in the aggregate was insufficient for admission.

As noted, students with disabilities may not be discriminated against in the admissions process. As such, colleges will find that although all students can be expected to meet legitimate admissions requirements, officials will need to provide an individualized assessment of the qualifications of students with disabilities to ensure that traditional criteria have not arbitrarily screened out otherwise qualified applicants. Also, being qualified may at times require the college to provide the applicant/ student with appropriate and reasonable accommodations.

Accommodations

Many courts have argued that if a college student is able to establish that he or she is disabled and qualified, colleges have a responsibility to explore alternative accommodations that would allow the student to participate in the institution's program on a nondiscriminatory basis. These courts have been of the opinion that although neither the ADA nor Section 504 includes the express "duty to investigate," the mandate to provide reasonable accommodation would be meaningless without such a duty and colleges would be incapable of determining whether a student was otherwise qualified if they failed to explore available options (Nathanson v. Medical College of Pennsylvania, 1991, p. 1383; Wynne v. Tufts University School of Medicine, 1992, p. 795). This position is further supported by the OCR, which concluded that when a college reviews the qualifications of students with disabilities, it needs to assess each student's ability to succeed given new learning strategies, effective academic adjustments, and technologies, and not make decisions that reflect stereotypical views. Moreover, at times it may be necessary to consult experts (e.g., when dealing with students purporting to have learning disabilities) to determine the nature and extent of possible accommodations (DePaul University, 1993). If the duty to investigate possible accommodations does in fact exist, that duty should be met when officials submit a factual record indicating that they researched and considered alternatives (including their feasibility, cost, and effect on the academic program; see Wynne v. Tufts University School of Medicine, 1991, pp. 25-26).

Not all courts have agreed that the duty to investigate exists. For example, the Supreme Court of Ohio reviewed a case filed by a student who was blind who claimed that reasonable accommodations would have enabled her to qualify for admission to a medical program (Ohio Civil Rights Commission v. Case Western Reserve University, 1996). The medical school denied her application and purported that she was not qualified because she would not be able to "observe" or "perform in a reasonably independent manner" as was required by the Association of American Medical Colleges (a national organization to which all medical colleges in the United States belong). Furthermore, she would not be able to exercise independent judgment when reading EKGs or Xrays, start an I.V., draw blood, participate in the surgery clerkship, react to emergency situations, or take night call. The plaintiff cited the experience of a former Temple University student who is now a practicing psychiatrist and argued that if she were provided accommodations such as books on tape and readers, had modified lectures, and was assigned an aide to describe tables and charts, she too would be able to meet program requirements. The court disagreed and concluded that no identified accommodation would enable the plaintiff to meet basic core requirements that were expected of all students and that her participation in the program could prove unsafe to clients. To the court, there was no duty to investigate under either state or federal law. Therefore, the institution's failure to contact Temple University to explore possible options did not discriminate against the plaintiff. The court upheld the denial of the plaintiff's admission.

Nonetheless, assuming that the duty to investigate is implied within federal law, colleges still would not be expected to provide accommodations until the student notifies officials of his or her disability and provides the necessary corroborating documentation. The student cannot rely on professors to "witness the symptoms suffered" and draw conclusions as to the nature and extent of the disability (Aloia v. New York Law School, 1988, p. 6; see also Goodwin v. Keuka College, 1995; Rossomando v. Board of Regents of University of Nebraska, 1998; Salehpour v. University of Tennessee, 1998; Salvador v. Bennett, 1986; Scott v. Western State University College of Law, 1997). This position is indirectly supported by the ADA in an employment context: The term "discriminate" is defined as "not making reasonable accommodations to the known . . . limitations of an otherwise qualified individual with a disability" (emphasis added) (42 U.S.C. § 12112(b) (5)(A); see also Tips v. Regents of Texas Tech University, 1996).

Once a student has sufficiently documented that he or she has a qualifying disability, a college is responsible for providing reasonable accommodations or modifications that do not result in unfair advantage, require significant alteration to the program or activity, result in the lowering of academic or technical standards, or cause the college to incur undue financial hardship. When accommodations are necessary they must be provided in a timely fashion (Smith v. State University of New York, 1997) and include, but are not limited to, adjustments in. time lines for the completion of degree requirements, substitutions for course requirements, adaptation of specific courses in the way they are delivered, the use of tape recorders in classrooms (San Francisco State University, 1997), auxiliary aids such as interpreters (Indiana Department Of Human Services v. Firth, 1992), readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, or the use of a guide dog in campus buildings (34 C.F.R. § 104.44(b)). However, colleges are not required to provide personal health care attendants, readers for personal use or study, or other personal devices or services (34 C.F.R. § 104.44(d)(2)).

One of the more extreme requests for accommodation was addressed in Maczaczyj v. New York (1997). In that case, a college applicant suffered from an anxiety disorder, social phobia., emotional trauma, and panic attacks, which occurred when he was forced to interact with others (see also WAY v. Medical College of Hampton Roads, 1993). Moreover, he was a former drug addict and alcoholic and resisted taking medications that could have made social interaction less stressful. To accommodate this disability the plaintiff requested that the master's program in liberal studies be made available to him through distance learning, as his undergraduate course of study had been. University officials noted that the delivery of the program through telecommunications was feasible, but that it required a deliberate design and pedagogy distinctly different from the current program and that it would have to be developed and approved by the state education department prior to implementation. In the alternative offered the student, a number of accommodations were proposed-he could bring a friend or advisor with him to class; have access to a vacant room where he could isolate himself whenever he felt the need; be excused from "'social" activities related to the residency portion of the program; and have his choice of location within meeting areas during residency. In denying the plaintiff a preliminary injunction, the court reasoned that although the plaintiff showed that he would suffer injury without a court order requiring that accommodation be provided, he had failed to show that his requested accommodation was reasonable.

Also, in a decision dealing with retention, the Fifth Circuit held that a law student's requests that the center allow him to be a part-time student, to continue to take exams at home, and to reduce the GPA requirement would result in fundamental alteration of the school's academic standards (McGregor v. Louisiana State University Board of Super visors, 1993). The student had been provided with virtually unlimited office hours by one professor, tutorial assistance, additional time to complete some exams, special furniture and equipment, and a student proctor to assist in personal care.

Thus, all requests for accommodation have not been found reasonable. However, educators should not conclude that accommodation is seldom necessary. Most requests by students with documented disabilities are within reason and are provided without controversy or court action. Reasonableness by the student in expectations, and by the college in its willingness to address the student's needs in good faith, can result in the efficient delivery of necessary services. Such services will allow the student to enter the college and to participate in its programs and activities. However, there will be times when students with disabilities, like other students, will be dismissed from colleges because of violations of behavior codes or the failure to meet academic requirements. These issues are discussed below.

Dismissal

Students who violate criminal law or a college's code of conduct (e.g., by selling drugs, carrying weapons, engaging in solicitation, or committing acts of violence, plagiarism, or cheating) may be disciplined by college officials (Childress v. Clement, 1998; South Suburban College, 1998). Assuming that allegations of wrongdoing are sufficiently documented, appropriate due process has been provided, and all students have been subjected to the same procedures, it is unlikely that a resulting disciplinary decision will be overturned by the courts. Also, unlike children with disabilities under IDEA, higher education students are not necessarily shielded from discipline simply because they are able to show that their behavior is disability related. In most instances, such students will not be otherwise qualified for retention.

In addition to disciplinary dismissal, some students with disabilities may be placed on probation or dismissed for failure to meet grade or other academic requirements (Amir v. Saint Louis University, 1999; Cheeney v. Highland Community College, 1993; Kasemeier v. Indiana University, 1996; Murphy v. Franklin Pierce Law Center, 1995; Texas Wesleyan University, 1998; Villanueva v. Columbia University, 1990). But, requirements imposed by colleges must be both reasonable and essential to the program; they may not be arbitrary or used in such a way as to deny students with disabilities equal access and opportunity (Salve Regina College v. Russell, 1991).

For a student with a disability to succeed in a suit claiming discriminatory dismissal, he or she must be otherwise qualified and be able to show that the university knew of the disability and failed to accommodate (Nathanson v. Medical College of Pennsylvania, 1991; Rossomando v. Board of Regents of University of Nebraska, 1998), provided inappropriate or inadequate accommodation (Rodgers v. Curators of University of Missouri, 1998; Wong v. Regents of the University of California, 1999), or discriminated in other ways on the basis of the student's disability. Proof of a violation is required; conclusory allegations, improbable inferences, and unsupported speculation are insufficient to substantiate a claim (Doe v. Harvard, 1994).

Most students challenging academic dismissal decisions have difficulty showing that they are otherwise qualified; some even have difficulty supporting the claim that they are disabled. For example, in Schuler v. University of Minnesota (1986), the Eighth Circuit held that the disabilities a former psychology doctoral student alleged (i.e., test-taking phobia, neurotic dependency upon her professors, and inability to communicate with her professors due to her right-brain dominance and their left-brain dominance) were insufficient to support a cause of action under Section 504 and that she was not otherwise qualified for retention in the program (see also Doe v. Washington University, 1991; Zukle v. Regents of the University of California, 1999).

Being otherwise qualified proved pivotal in Ellis v. Morehouse School of Medicine (1996), where a federal district court granted summary judgment to a medical school and upheld the dismissal of a student with dyslexia who failed to meet academic requirements even with accommodations provided by the university (e.g., decelerated first-year program, double time to complete examinations). The plaintiff complained that his attending physicians in surgery did not know that he was learning disabled and thus failed to accommodate him. In its defense, the university argued that no accommodation was possible in the clinical experience given that a surgeon would be required to process information promptly and accurately.

Academic, field, internship, and clinical requirements like those in Ellis generally are found to be essential portions of degree programs and are seldom waived for students claim ing either physical or mental disabilities (see, e.g., Everett v. Cobb County School District, 1998). For example. in Doherty v. Southern College of Optometry (1988), the Sixth Circuit held that a former optometry student with retinitis pigmentosa and an associated neurological condition affecting his motor skills was unable to meet necessary clinical proficiency requirements with certain techniques and instruments and was not otherwise qualified. The court reasoned that to waive an essential program requirement would be a substantial, rather than a reasonable, accommodation and was not therefore required.

The case law just examined relates to both disciplinary and academic dismissals. Disciplinary procedures used for students without disabilities also may be used for students with disabilities. However, when dealing with academic dismissals, colleges must consider whether the student with a disability has been appropriately accommodated. To assist in accommodation as well as other matters, the following guidelines are provided to assist higher education practitioners.

Guidelines for higher education practitioners

Although judicial interpretation of federal disability law is currently evolving, some guidance nevertheless can be gleaned that will enable higher education practitioners to better meet the needs of students with disabilities and to protect themselves from unnecessary expenditure and litigation.

  1. Establish and publish reasonable and sufficient guidelines for students to follow in their efforts to document a disability (e.g., a former IEP; documentation from an appropriately licensed professional).
  2. Review financial aid practices and remove where possible any provisions that result in discrimination against, or otherwise adversely affect, students with disabilities.
  3. Review admission procedures to ensure that they do not arbitrarily deny or unnecessarily delay the admission of students with disabilities.
  4. Make reasonable efforts to keep abreast of new technologies and instructional methodologies that may assist a student with a disability to be otherwise qualified.
  5. Within the Student Disability Services (SDS) staff, employ one or more individuals who has knowledge of disability law and assessment of disabilities in adults.
  6. Ensure that SDS is sufficiently staffed and adequately funded to address the increasing number of inquiries and demands for accommodation.
  7. Engage in the in-service training of administrators, staff, and professors regarding the need for accommodation and access.
  8. Periodically assess buildings and grounds to determine accessibility.
  9. Examine academic and disciplinary procedures to eliminate those that would impermissibly discriminate against students with disabilities.
  10. Handle inquiries and requests for accommodation in a timely fashion.
  11. Investigate allegations of noncompliance and discrimination promptly and efficiently.

Following these guidelines should make integration of students with disabilities into the marketplace of ideas less frustrating for the student, less controversial for the faculty, and more efficient for the college. Importantly, federal law does not require the admission, retention, or graduation of a student because he or she is disabled. Rather it requires nondiscrimination and accommodation; it requires colleges to give qualified students with disabilities the opportunity to succeed or to fail.

References

References

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Agron v. Trustees of Columbia University, 88 Civ. 6294, 1993 U.S. Dist. LEXIS 4565 S.D. N.Y. March 31, 1993).

Alexander v. Choate, 469 U.S. 287 (1985).

Aloia v. New York Law School, No. 88 Civ. 3184, 1988 U.S. Dist. LEXIS 7769 (S.D. N.Y. July 25, 1988).

Americans with Disabilities Act of 1990, 42 U.S.C. § 12102 et seq. (1998); title II, § 12131 et seq. (1998); 28 C.F.R. §§ 35.101-35.191 (1998); title III, § 12181 et seq. (1998); 28 C.F.R. §§ 36.101-36.608 (1998); Appendix A to Part 36 (Standards for Accessible Design; 1998); Appendix B (Preamble to Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; 1998).

Amir v. Saint Louis University, 184 F.3d 1017 (8th Cir. 1999).

Anderson v. University of Wisconsin, 841 F.2d 737 (7th Cir. 1988).

Baker v. Board of Regents of Kansas, 991 F.2d 628 (10th Cir. 1993).

Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094 (S.D. N.Y. 1997).

Betts v. Rector and Visitors of University of Virginia, 939 F. Supp. 461 (W.D. Va. 1996).

Betts v. Rector and Visitors of University of Virginia, 967 F. Supp. 882 (W.D. Va. 1997).

Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978). Bowers v. NCAA, 9 F. Supp. 2d 460 (D. N.J. 1998).

Carlin v. Trustees of Boston University, 907 F. Supp. 509 (D. Mass. 1995). Cheeney v. Highland Community College, 819 F. Supp. 749 (N.D. 111. 1993).

Childress v. Clement, 5 F. Supp. 2d 384 (E.D. Va. 1998).

County of Los Angeles v. Kling, 474 U.S. 936 (1985).

Department of Justice (DOJ) Opinion Letter, 9 National Disability Law Reporter 315 (DOJ 1996).

DePaul University, 4 National Disability Law Reporter 157 (Office for Civil Rights 1993).

Doe v. Harvard University, Nos. 93-2051, 93-2234, 94-1589, 1994 U.S. App. LEXIS 28320 (1st Cir. October 12, 1994).

"Doe" v. Marshall, 882 F. Supp. 1504 (E.D. Penn. 1995).

Doe v. New York University, 666 F.2d 761 (2d Cir. 1981).

Doe v. Washington University, 780 F. Supp. 628 (E.D. Mo. 1991).

Doherty v. Southern College of Optometry, 862 F.2d 570 (6th Cir. 1988), reh'g denied, cert. denied, 493 U.S. 810 (1989).

Ellis v. Morehouse School of Medicine, 925 F. Supp. 1529 (N.D. Ga. 1996).

Everett v. Cobb County School District, 138 F.3d 1407 (1 11th Cir. 1998). (This case includes Kennesaw State College among the defendants.)

Gent v. Radford University, 976 F. Supp. 391 (W.D. Va. 1997).

Gill v. Franklin Pierce Law Center, 899 F. Supp. 850 (D. N.H. 1995).

Goodwin v. Keuka College, 929 F. Supp. 90 (W.D. N.Y. 1995).

Guckenberger v. Boston University, 974 F. Supp. 106 (D. Mass. 1997).

Halasz v. University of New England, 816 F. Supp. 37 (D. Me. 1993).

HEATH Resource Center. (1995). College freshmen with disabilities. Washington, DC: American Council on Education.

HEATH Resource Center. (1998). Profile of 1996 college freshmen with disabilities. Washington, DC: American Council on Education.

Indiana Department of Human Services v. Firth. 590 N.E.2d 154 (Ind. Ct. App. 1992).

Individuals with Disabilities Education Act of 1990, 20 U.S.C. § 1400 et seq.

Jansen v. Emory University, 440 F. Supp. 1060 (N.D. Ga. 1977).

Kapiolani Community College, 12 National Disability Law Reporter 45 (Office for Civil Rights 1997).

Kasemeier v. Indiana University, 8 National Disability Law Reporter 408 (7th Cir. 1996).

Lewin v. Medical College of Hampton Roads. 910 F. Supp. 1161 (E.D. Va. 1996).

Maczaczyj v. New York, 956 F. Supp. 403 (W.D. N.Y. 1997).

Mallett v. Marquette University, 65 F.3d 170 (7th Cir. 1995).

McCarthy, M. M., Cambron-McCabe, N. H., & Thomas, S. B. (1998). Public school law: Teachers' and students' rights (4th ed.). Needham Heights, MA: Allyn & Bacon.

McGregor v. Louisiana State University Board of Supervisors, 3 F.3d 850 (5th Cir. 1993).

Morse v. University of Vermont, 973 F.2d 122 (.2d Cir. 1992).

Murphy v. Franklin Pierce Law Center, 882 F. Supp. 1176 (D.N.H. 1994), aff' d without published opinion, 56 F.3d 59 (1 st Cir. 1995).

Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368 (3d Cir. 199 1).

Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E. 2d 1376 (Ohio 1996).

Ostrach v. Regents of the University of California, 957 F. Supp. 196 (E.D. Cal. 1997).

Pazer v. New York State Board of Law Examiners, 849 F. Supp. 284 (S.D. N.Y. 1994).

Price v. National Board of Medical Examiners. 966 F. Supp. 419 (S.D. W. Va. 1997).

Pushkin v. Regents of the University of Colorado, 658 F.2d 1372 (10th Cir. 1981).

Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985).

Rehabilitation Act of 1973, as amended by the Rehabilitation Act Amendments of 1974, 29 U.S.C. § 794 (1998); 34 C.F.R. §§ 104.1-104-47 (1998).

Rodgers v. Curators of University of Missouri, 135 F.3d 1216 (8th Cir. 1998).

Rossomando v. Board of Regents of University of Nebraska, 12 National Disability Law Reporter 268 (D.C. Neb. 1998).

Rothman v. Emory University, 123 F.3d 446 (7th Cir. 1997).

Salehpour v. University of Tennessee, No. 97-5468, 1998 U.S. App. LEXIS 21381 (6th Cir. August 27, 1998).

Salvador v. Bennett, 800 F.2d 97 (7th Cir. 1986.).

Stephen B. Thomas, Kent State University The Journal of Special Education, Vol.33/NO.4/2000, pp. 248-257<