Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Are colleges required to provide testing and accommodations for students with learning disabilities?
My daughter, who is now 28 years old, has returned to college. She went to an alternative high school and only took basic math there because she had such difficulties with math. She just took Basic College Algebra and failed it even though she went for tutoring twice a week. I have always thought she (and her father and two brothers) had a math disability.
Should the college have to provide testing and accommodations? They really have not wanted to discuss this with her.
Colleges and universities are governed by different rules than students with disabilities in elementary and high school. The law requires that in order for a student to receive accommodations based on their disability, they must provide documentation that establishes that they have the disability and why the accommodation is necessary for them, based on their disability. The college or university then must consider this information if they agree that the documentation establishes the disability and that the accommodations being requested are "reasonable." If they disagree, they must advise your daughter. She then has the right to appeal that decision or file a complaint with the federal government because they are not recognizing her disability or providing her with the needed accommodations.
Can a high school require that a student with LD declare the disability on college applications?
Does a high school have a legal right to mandate that a student with a learning disability declare the disability on college applications? Isn't there a law to protect a student's privacy?
I do not believe it is legal for a state to require that students disclose that they have a learning disability on applications for college. The only basis for disclosing the disability is when and if the student decides to request accommodations based on the disability.
Is an IEP applicable once a student graduates from high school?
My son has Asperger's and learning disabilities. He is 17 years old and will graduate from high school in the Spring of 2010. My son has had an IEP for years. There are numerous accommodations listed on his IEP.
My question is, once he moves on to a two- or four-year college, will his IEP still be of any use to him? Will he get any help?
Once a student graduates from high school with a regular education diploma, the IEP is no longer controlling. The IDEA/special education law has no legal force with respect to colleges or universities.
However, these institutions are required to provide reasonable accommodations pursuant to Section 504 and the Americans with Disabilities Act. The IEP will provide useful information to document the need for accommodations, but your son will need to contact the school's disability services office to present documentation of the disability and of the need for accommodations.
Under some circumstances, even if the student has met the technical requirements for graduation, if he or she still has significant unmet needs — such as in the areas of life skills, organizational skills, or social skills — he or she may be eligible for services beyond the twelfth grade year. But this would mean delaying graduation. In some instances, the transition plan could involve participation in community college courses with continuing support from the public school in various ways.
How can I help my adult daughter get an accommodation or exemption on her math requirements so she can and become a teacher?
My 23-year-old daughter has a well-documented, severe, and longstanding math disability. She has been told that to earn a degree in early childhood special education and to teach with a certificate in New Jersey she must pass two semesters of college-level algebra.
She is in the process of failing remedial algebra again. Can you suggest any agency or way to try to get an accommodation so that she can graduate college, take the Praxis (required exam for teachers), and teach? She has very strong verbal skills and is capable of all of the academic and practical work required for early childhood education.
It has been my experience that even typically developing preschoolers do not have to learn to do quadratic equations. I am not sure why the teacher must demonstrate that competency to teach preschool math. We appreciate any suggestions you can offer. Thank you.
I suggest that you contact the state agency responsible for teacher certification. They should have a procedure for granting waivers or accommodations for various requirements for certification. They may feel that these courses are fundamental to the preparation for the job, but as you point out, this seems questionable.
They should also have an appeal procedure to address what to do if they refuse to make an exception. In order to assure that you follow the right procedure, you and your daughter should consult with a knowdledgeable ADA/disability rights lawyer in your area for advice. You may get information on possible lawyers from COPAA, from the American Bar Association's Disability Lawyer Search engine, or by contacting the New Jersey Protection and Advocacy agency to get the New Jersey agency.
You may need expert support to make the point that the math skills being tested are not fundamental to the job for which the license is being sought. You may also be able to identify and propose other ways for satisfying the math requirement.
Can a student with a 504 plan be penalized for not passing state standardized tests?
I am wondering if you could address the issue of the state standardized tests (PSSAs in my state of PA) being used as a requirement for graduation and how this applies to children with a 504 plan. Currently, my 13-year-old son, who has cerebral palsy, has a 504 plan in place. He does not have an IEP because the district evaluated him twice and did not find identifiable learning disabilities. However, we know he is VERY behind in math, and that written expression is very difficult for him.
He consistently tests at the Basic level on the PSSAs and will be placed in different classes starting next year because the district did not meet Adequate Yearly Progress. The classes are called "standards" classes and are specifically for students who test below proficient, like my son. Also, in order to address the AYP failure of the district, passing (scoring proficient) on the PSSA tests will now be a condition of graduation. This type of plan was struck down in Alaska in 2004.
I am also concerned that putting him in these special standards classes is a violation of what his 504 protection affords him, specifically this — children with disabilities must be educated with their nondisabled peers "to the maximum extent appropriate."
Your help is much appreciated.
Thanks in advance.
Your questions raises many issues, some of which are particular to your son and the way he is being treated and some are general in relation to the impact of the state wide tests.
In relation to your concerns about the fairness of the Pennsylvania procedure, you may get useful information from the Public Interest Law Center of Philadelphia, which is involved in many of these issues, and from your state's protection and advocacy agency. Your question also raises the important issue of whether the remedial regular education class is being provided in lieu of the development of a more appropriate special education or Section 504 intervention.
In addition, your description of the situation suggests that your son may also be improperly excluded from eligibility for special education services based on criteria that are inappropriate and/or misapplied to his situation and disabilities. Even without an IEP, he may be getting fewer protections and services then he should through his Section 504 plan. There are many things that can and should be offered through a 504 plan, along with the Section 504 prohibition on discrimination against people with disabilities.
What can be disclosed in college recommendation letters regarding disabilities?
What can be disclosed in college recommendation letters regarding disabilities?
This is an important and difficult question. As a general matter, a child's status as a student with a disability is protected by IDEA and typically protected by states' school records and privacy laws.
However, the procedure used by some schools for submission of recommendations often provides an option for the student to waive the right to review the recommendation in order to allow the reviewer to write an honest appraisal of the student. Legally, a student's disability should not be disclosed without their consent, but this is an example where there is some risk that such a disclosure could occur even though the information should have been protected, absent student consent.
Is it possible to get the GPA requirement for a bachelor’s degree modified?
My son, with ADHD, has been trying to meet all graduation requirements for his bachelor's degree. The college he attended did not modify any requirements for him, nor did they modify any coursework for him.
He has met all graduation requirements but one. His grade point average is .129 below that of the graduation mark. Is there anything he can do to secure a modification of that requirement?
Thank you for your expertise and help.
I am reluctant to provide an overly broad response to your question, as there may be important details that could impact his position. It is unclear from your question whether he has previously made a formal request for accommodations, with appropriate documentation of his disability and need for accommodations, and been denied, or if he has not formally requested accommodations and the issue is coming up for the first time now.
If he requested accommodations and was denied, he may have legal arguments relating to the failure to provide the accommodations contributing to his lower performance and resulting lower grade point average. However, there are timelines that govern how much time can pass within which one can file complaints for failure to provide reasonable accommodations.
If he did not request accommodations until now, it would be difficult to argue, at this point, that the GPA requirement should be modified, when he did not seek accommodations earlier or avail himself of accommodations that might have allowed him to achieve higher grades. In general, it is difficult to obtain modifications of a GPA requirement for graduation.
He should consult the school's disability services office, review the school's disability policy, and consider consulting with a lawyer knowledgeable about higher education disability law issues. He also has the option of using the college's ADA grievance procedure or filing a complaint for disability discrimination with the Office for Civil Rights of the U.S. Department of Education.
Can a high school IEP be used to document the need for disability support services in college?
My son was diagnosed with Aspergers when he was three. He was served through special services in our county through elementary to high school. He has recently enrolled at our local university. I met with the person in charge of students with disabilities. She told me she would not accept his IEP from high school. She stated she needed a new psychological testing. What should I do?
You are interested in whether a university in which your son is enrolled is obligated to accept prior evaluations and his high school IEP. The special education system, which is based on the federal Individuals with Disabilities Education Act, is only applicable to public elementary and high schools. It is not legally controlling with respect to the obligations of public or private colleges and universities. Rather, the obligations of colleges and universities with respect to students with disabilities are defined by the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
The ADA applies to all colleges and universities, except those that are religiously controlled. Section 504 applies to all colleges and universities that receive federal funding, regardless of whether they are public, private or religiously affiliated. Students seeking accommodations in college based on their disability have the burden of identifying themselves to the school as having a disability, providing up-to-date and clinical documentation of the disability, as well as documentation of the impact of the disability on their performance and the need for reasonable accommodations to ameliorate the impact of the disability.
Public elementary and secondary schools are affirmatively responsible for identifying all children suspected of having disabilities, and, where indicated, conducting evaluations to determine if the child has a disability that meets the eligibility criteria for special education. Colleges and universities have no obligation to seek out or identify whether students have disabilities. The student must disclose the disability and provide documentation, as described above.
Colleges and universities may vary in their rules for how recent the clinical evaluations must be. The length of time since the student's last clinical evaluation was conducted may also be viewed differently depending on the identified disability, as some courts have held that some disabilities may be more chronic and consistent than others. In addition to providing clinical documentation of disability, the need for reasonable accommodations must also be documented.
If a student has been eligible for special education services or had a Section 504 plan while in elementary or secondary education, this is important evidence of the history of disability and the need for accommodation, but does not automatically require the college or university to either accept that the student has a disability or to accept the accommodations that were previously provided. Even assuming the college agrees that the student has a disability that substantially limits a major life function, the ADA and Section 504 only require the provision of "reasonable accommodations."
While the list of such accommodations is extensive, it is far more limited than the services required under the IDEA for students in elementary and secondary education. Further, the right to a particular accommodation may be individually evaluated by the college, which may decide the accommodation is not needed, is not reasonable, is unduly burdensome, or would fundamentally alter the nature of the school's programs. Students interested in receiving accommodations should contact the college or university's office of disability services.
Information on the right to accommodations in higher education can also be obtained from the website of the US Department of Education's Office for Civil Rights and from Association on Higher Education and Disability and HEATH Resource Center.
Note from LD OnLine: For more information read The Documentation Disconnect for Students with Learning Disabilities: Improving Access to Postsecondary Disability Services, a paper by the National Joint Committee on Learning Disabilities.
Can a student get twice the amount of time to complete their exams instead of time and a half?
I was recently diagnosed with ADHD and given accommodations of "time-and-a-half" on my law school exams. Unfortunately, I am still having a very difficult time finishing the exams so I requested double-time accommodations. My request was denied and both my Dean and my psychologist says double-time is too extraordinary.
Is this typical? Why is double-time extraordinary? I was under the impression I was being accommodated to help me finish the exams, which I'm sure I could do with double-time. My Dean wants me to pinpoint why I'm not finishing (i.e. due to fact patterns being too long) but it is next to impossible for me to do that, when my processing time and organizational problems are mostly to blame.
I've already paid a lot of money for a thorough reported diagnosis for the school. I don't have the time or money to take this through a court process. Am I asking for too much by requesting double-time?
Your question addresses whether you should be able to receive double time on your law school exams, rather than "time–and-a-half." Unfortunately, it is difficult to clinically and precisely tie the presence of ADHD or a learning disability to the need for a specific amount of additional time on tests. A number of schools and test organizations are tightening their documentation requirements for extra time and particularly for “extra extra” time.
Under the law, the burden is with the person requesting the accommodation to establish the need for the specific accommodation. You should also consult with the clinicians who evaluated you to enlist their help in documenting why 1 ½ time is not sufficient.
You may also want to get your tests to show problems with completion. You may also want to check with your university's disability services officer for help. See question "What can be done when a scholarship is lost because lack of accommodation causes the student to get lower grades?" for additional resources.
How does a high school senior who is on a 504 plan obtain accommodations for the SAT or ACT?
My son is a high-school senior interested in attending one of our local colleges. He is currently on a 504 plan, with accommodations for reading, writing, note and test taking. He recently took his SAT test and didn't score so well on the literary sections, as he wasn't able to finish. I'm wondering if there is a special accommodation that carries over to the SAT or ACT, so he could have more time to process the test. He was diagnosed with ADHD at age 4, has been on and off IEPs throughout his school years. He was dropped from the IEP last year due to his progress and success in his studies. I fought hard to get him on the 504 plan in hopes to have the accommodations when in need. He struggled through school and most subjects all the way until last year, his junior year. Last year he put all his might into his studies, found success and loved it. Continuing his education is something he never showed interest in, as he didn't think he could. His transcript right now is a 2.9%, which is brought down by his 1st two years in high school. He ended last year with a 3.6 and is heading in the same direction this year. How does the 504 plan transfer to higher education and do the accommodations for testing apply?
First, a child with disabilities may qualify for accommodations for the SAT and ACT, but this doesn't happen automatically. Typically, the school applies for accommodations on behalf of those students who have IEPs or 504 plans, but if they don't do this, the parent can do it. Your son can apply for accommodations on the SAT, and if granted, retake the exam with the accommodations. Typically, the accommodations on the SAT and/or ACT should parallel the accommodations the school has been providing, but this is ultimately up to the testing agency to decide. If they refuse a particular accommodation, each testing service has a procedure by which parents can appeal the denial of the requested accommodation. Both the ACT and SAT administrators are covered by the American with Disabilities Act and are required to provide reasonable accommodations for those students who are able to document the presence of a disability that impacts the ability to perform on the test and who require reasonable accommodations. Generally, the testing services require up -to-date evaluations documenting the disability, documenting that the child has an impairment in comparison to the general population and that the student requires accommodations. Generally, there needs to also be a history of disability and a history of special education or 504 eligibility, although this is not an absolute requirement.
What laws impact students with learning disabilities who wish to attend college?
Are there any laws that support learning disabled students trying to be admitted into college. Because learning disabled students do not meet the admission requirements, how will they be given a fair chance to be admitted into college.
Students with disabilities must meet the minimum requirements for admission to college. However, some schools, if made aware that a student has a disability, may use more flexible standards in the admission process, using additional data to answer whether the student should be admitted. Colleges and universities do not have one common standard for admission or for reviewing applications. Students with learning disabilities, ADHD, or other disabilities may benefit from contacting the college's disability services office before applying in order to learn whether there are any special procedures used by a particular college in assessing the application of students with disabilities. There are also two excellent guides to colleges with programs for students with disabilities; The K & W Guide to Colleges for Students with Learning Disabilities and the Peterson's Guide to Colleges for Students with Learning Disabilities or ADD. These guides not only list the types of disability support services available through the college, they also briefly describe the application procedures used by the college to assess the students that are designed to take into account the potential impact that a student's disability may have on their competitive status. For example, increasing numbers of schools no longer require the ACT or SAT test as a basis for application. For further information, go to LD OnLine's college preparation section of LD InDepth
What do you do if a college professor denies you reasonable accommodation?
I am a 45 year old male who had to go back to school because of an injury in the oil field. I was diagnosed as having ADHD by a psychiatrist. The junior college I am attending denied the accommodations I requested. I have talked to the college dean. She assured me that next year the accommodations will be reviewed by the instructor who denied them.
I lost a year because of this instructor, and I am not too sure she is actually going to assist me as far as agreeing to the accommodations on the 504 law.
Sir, can you tell me what to do about this? I am half way done on an associate's degree and I encounter an instructor who tells me my disability is an excuse to slack off from working hard like everybody else.
You have apparently been denied accommodations from a specific instructor in the course of your pursuit of an AA degree. You are to be commended for your persistence under the circumstances you described. As a preliminary matter, you should make sure that any accommodations you are entitled to are written into a formal accommodations plan approved by the community college. If the professor doesn't follow the plan, you may use the college's standard grievance procedure, you may use the college's special grievance procedure for 504 and ADA complaints, or you may file a complaint with the US Department of Education Office for Civil Rights for a violation of Section 504.Unfortunately, there is nothing that can get you back the time you have already lost, but you may want to ask that the community college arrange a meeting with the administration, the instructor and yourself, prior to the start of the new class to make sure that the instructor understands his/her obligations to provide the accommodation. You may also want to approach the college about whether a) there is some way to get credit for the class in which you were denied accommodations without having to fully retake it (some form of independent study or the like, preferably supervised by a different faculty member) and b) whether the extra fees for having to retake the course should be waived.
How can you receive accommodations on standardized tests for graduate school?
I received very late diagnoses of a Nonverbal LD and bipolar at ages 17 and 19. Both disorders are well-documented. My therapist of the last few years is a PhD in Ed Psych. She helped me apply and get funding from the DVR, which financed a good deal of college.
This semester I graduate with a BA and 3.7 from one of the best public universities in the country. I would love to be in grad school, with law being one of my first choices. The problem is I'm a bad standardized test-taker, even with accommodations. My Nonverbal LD impacts math and quantitative skills, so the logic games section would not produce good results.
I am troubled that many admissions policies do not allow for detailed consideration of how an LD might affect test results. I've read that LSAT scores are the biggest factor. I don't care about the prestige of the school, just that it's affordable and ABA-approved. A second plan is to get a PhD in a law-related field. I just think LD students should have a fair chance at law school; a low LSAT shouldn't be the eliminating factor. I plan to work as a legal assistant for a couple years before applying. Any thoughts would be great. I'm sure many people have the same question. Thanks for your help.
- Information concerning impairment in relation to the general population as well as in relation to the population that you are competing against;
- Information documenting the practical effect of the impairment earlier in your life, even if you were late diagnosed;
- Information that you received accommodations in college or elsewhere, even if not earlier in life;
- Strong statements from diagnosticians indicating the correlation of the disability to your performance, as well as the correlation of the proposed accommodation to your disability. In other words, unless there is some indication that this specific accommodation that you are seeking actually provides a meaningful support to you in relation to the diagnosed disability, you will also have trouble receiving the accommodations.
Can college professors ask their students if they received special education services in high school?
Dear Mr. Cohen,
Is it illegal for a professor or administrator to ask a college student if he or she had an IEP in high school or receives testing accommodations? If so, where can I find the legal documents to support this?
As a general matter, under the Americans with Disabilities Act, it is illegal for employers to ask questions about a person's medical or disability history or status prior to offering someone a job. There is no specific equivalent as to how educators conduct themselves, but there is a broad protection against discrimination on the basis of disability in higher education.
Further, the disclosure of disability is, by law, solely a right of the individual with the disability, not an obligation on their behalf. If the individual does not wish to disclose a disability, they should not be required to do so. Certainly, a requirement that a disability be disclosed creates an inference of discriminatory conduct with respect to how that information may be used.