1. Thinking Outside the Box
Understanding Your New Mission
Within the Context of Civil Rights in America
Paul D. Grossman, J.D.
OCR, Chief Regional Civ. Rts. Atty., S.F., retired
Adj. Prof. of Disability Law, Hastings Col. of Law, U.C.
AHEAD Bd. Member; Expert Panel Member, DRA
o In support of Carol Funckes and the AHEAD
Professional Development Standing Committee
2. Why We Must Persist in Our Mission
“The arc of the moral universe is long, but it bends towards justice.”
Martin Luther King quoting 19th century abolitionist and Unitarian minister Theodore
Parker
3. Caveat
These materials are provided for informational purposes only and are not to be
construed as legal advice. You should seek independent or house counsel to resolve the
legal issues that you are responsible for addressing. Further, any policy or procedure
additions or revisions under consideration should be reviewed by your college’s legal
counsel prior to implementation.
4. USE AND PERMISSIONS
This material has been provided for your personal use. Any duplication or distribution
requires the written consent of Paul D. Grossman and AHEAD
5. Taking It One More Step
This Power Point is indexed to Colker and Grossman, The Law of Disability
Discrimination for Higher Education Professionals (Lexis-Nexis, 2014).
The topic of this presentation, the roots and evolution of American disability law, may
be found may be found in Colker and Grossman at Chapter 1, pp. 1-17.
This book is available through Lexis-Nexis at the following link:
http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=r
elatedProducts&prodId=prod20900324
Annual updates are available free of charge
at: http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageNa
me=relatedProducts&core=&parent=&catId=cat80050&prodId=prod20900324
6. Three Objectives
7. Objective I
Through three personal stories expand your own insight into why it is critically
important for persons with disabilities to attend college and persist to graduation
8. Objective II
Through a brief history lesson, tell you why each of you has a connection to the
American civil rights experience.
9. Objective III
Provide you with the legitimate and compelling case for the admission, inclusion, and
accommodation of students with disabilities in higher education
10. Three Personal Stories
11. My Story
 Anyone can drop out of school
 “It only gets better”
 How I learned, may not be how you learn or how your professors and department
chair learn
 Recognize that many people are not equally strong across all domains
o You students need to know their strengths, weaknesses, learning style
o Develop their compensatory skills
12. My Story
How your students will accomplish their jobs after they graduate is largely their problem
and they are best qualified to address that challenge
o Self-selection in employment
o Self-mitigation and accommodation
13. My Philosophy for Success
Moses Maimonides, a medieval Jewish philosopher:
 If I am not for myself, who will be?
 If I am not for others, who am I?
 If not now, when?
14. My Brother’s Story
 My brother’s strange decision as to how to spend his last days on earth
 Appreciate that while students with disabilities are struggling in school, they are
growing, becoming more of a complete human-being
o Learning the importance of learning, a life-long activity
o More of a citizen – more of a chance to be a leader
o
o
A wiser consumer
More of a chance to be a professional
15. The Story of Mary Lee Vance, Ph.D.
 A stupid parking ticket issued by the Santa Monica Police Dept.
 Even as an individual with a disability, I didn’t get it.
 = “Nothing about us, without us.”
 But only if individuals with disabilities can make it past the “gatekeeper”
16. A CIVIL RIGHTS PERSPECTIVE ON DISABILITY RIGHTS
17. A Very Important Civil Rights Endeavor
 Admission of students with disabilities, makes your college “a guardian of the
humanity of our society”
 A society that does not respect the rights of its most vulnerable individuals, may
destroy itself from within
18. A True “Miners’ Canary”
The Last people, August Sandler, 1921
Normalizing the Holocaust
19. T4--”Legitimate” Extermination
 A program of euthanasia in Nazi Germany begun in 1939
 Physicians were directed to judge patients "incurably sick, by critical medical
examination," and then administer to these patients a "mercy death."
 Various other rationales for the program improving the gene pool of Germany and
cost savings in welfare and medical care.

The program officially ran to August 1941, during which 70,273 people were killed at
various extermination centers located at psychiatric hospitals in Germany and
Austria; unofficially to the end of the war killing 200,000 people more.
 Many of the practices that had been instituted under the program right up until the
defeat of Germany in 1945.
 The technology that was developed under Action T4, particularly the use of lethal
gas to perform mass murder, was subsequently used in the extermination camps.
20. Disability Legal History: The Disability Holocaust
 The sterilization codes of the Nazis were based on American law and practices
(Virginia and majority of other states)
 30,000 lobotomies performed in the U.S. in 1936 --- last state eugenics law repealed
1968
21. Isn’t This a Tad Hyperbolic?
 In America there will never be a disability holocaust





But we have so very far to go:
50% unemployment rate for persons with disabilities 25 years after the ADA; 90%
for persons with psychiatric disabilities
36% of students without disabilities drop-out of college; the figure for students with
disabilities is 47%; the figure for students with psychiatric disabilities is 86%
The Supreme Court has been so hostile to implementation of the ADA that Congress
had to rewrite the law
Olmstead v. LC (S.Ct. 1990), disability desegregation, remains only partially
implemented
22. We Have Far to Go
 Our criminal justice system is a disaster:
o Many of police shootings classified as racial confrontations are actually about
disability
o Our primary mental health care delivery system is our prisons and jails --- Ryker’s
Island Warden
o Court rooms are inaccessible to both defendants and juries with disabilities
o Prisons are inaccessible to convicted individuals with disabilities
23. We Have Far to Go
 Because of limited or nonexistent disability transit systems, many disabled
individuals are still segregated from society and from work
 Technology is proving to be a two edged sword:
o Uber and Lyft
o On-line learning, as a whole, inaccessible
24. We Have Far to Go
 Our democracy is inaccessible:
o 80% of voting sites in New York were found by a Federal Court to be inaccessible;
o no registrars in Alameda County were trained in setting up and operating
adaptive voting machines
o So many court houses are inaccessible that persons with disabilities cannot serve
on juries – We have no peers to judge us.
25. We Have Far to Go
 Our cities are inaccessible
o Both LA and NY, unsuccessfully argued in court that they had no duty under
Section 504 or the ADA, to take individuals with disabilities unique needs into
account in their emergency planning procedures
o Two-thirds of New York Subway stations are inaccessible
26. We Have Far to Go
 Many of our college campuses are inaccessible


Williams v. Southern Univ. & Agric. & Mech. College, 2012 U.S. Dist. LEXIS 145852,
2012 WL 4829488 (M.D. La. Oct. 10, 2012)
o No way to access her classroom – no ramps or ramps that were too steep
o No way to go to the bathroom or empty her catheter bag
o No one responsible for moving her classes to an accessible space
o No response to her complaints
Digital faces to the world are consistently inaccessible
27. We Have Far to Go
 The U.S. is supposed to be the world’s disability rights model and leader
o We are
o But, Congress will not ratify the UN Convention on the Rights of Persons with
Disabilities due to complaints from the home-schooling association
28. If individuals with disabilities don’t get a higher education, who will address these
injustices?
Again, “nothing about us without us”
29. AS INDIVIDUALS WITH DISABILITIES, OUR STUDENTS HAVE CIVIL RIGHTS
These Rights Came from the Sacrifices of People of Color and Our Own Colleagues with
Disabilities
30. What Laws Protect Our Students?
 Section 504 of the Rehabilitation Act of 1973
o Implementing regulations
o OCR compliance letters (complaint or compliance reviews)
o “Dear colleague” letters and Q & A’s
 Titles II or III of the American’s with Disabilities Act of 1990, as amended in 2008
o Implementing regulations
o “Dear colleague” letters and Q & A’s
o Direct and Amicus Briefs and Statements of Interest
o NPRMs
o As to Title II, OCR compliance letters (complaint or compliance reviews
31. What Laws Protect Our Students?
 The Federal Fair Housing Act (FHA) 42 U.S.C. § 3604
 State disability anti-discrimination laws – damages are easier to get
 State access law
 In California and several other states Section 508 of the Rehabilitation Act
 Local human relations ordinances
o Employment
o Services
o Housing and zoning
32. Noncompliance Can Be Expensive
 Institutional liability!
o Nearly everyone at your school is protected
o Nearly everyone can get your school in trouble
 OCR remedies
 DOJ remedies
 Judicial remedies
o Injunctive
o Legal costs
o Deliberate indifference punitive and exemplary monetary relief
33. How Did These Laws, Laws that Protect the Civil Rights of My Students, Come About?
34. “Connections”
James Burke would ask, “What do the rights of a few monolingual Cantonese-speaking
children in Chinatown, San Francisco have to do with your job?”
The answer, as you shall see, is: “everything.”
35. An Integral Part of American Civil Rights History
 The disability laws that we enforce are an integral and legitimate part of the
development of Civil Rights Law in America
 Disability rights are founded on the earlier Civil Rights movements in which some of
us participated and learned
 The disability rights movement includes bravery and sacrifices of our own
36. 6 Historic Stages in Civil Rights Law, Culminating in Disability Law (1)
 Stage 1: Slavery/Emancipation
 State 2: Eliminate segregation—(may be overt; may be by law--de jure
discrimination)
 Stage 3: Equal treatment of similarly-situated individuals (“disparate treatment;”
“intentional discrimination” is directly proven or inferred; “irrational discrimination”
37. Stages in Development of Civil Rights Principles (2)
 Stage 4: Removal of “unnecessary headwinds” (not essential or non-fundamental
requirements) (disparate impact) Griggs v. Duke Power (S.Ct. 1971); Alexander v.
Choate (S.Ct. 1985) -- intent not a necessary element of proof. May, in business , be
“rational”
 Stage 5: Recognition that identical treatment is not always equal treatment—Lau v.
Nichols (S.Ct. 1974)
(Pertinent information in Colker and Grossman at pp. 6-7)
38. Stages in Development of Civil Rights Principles
 Stage 6: Accommodation
o Just a little more than disparate impact
o Qualification includes some degree of accommodation
o Southeastern Community College v. Davis (S. Ct. 1978) as clarified in Alexander
v. Choate (S.Ct. 1985)
(Pertinent information in Colker and Grossman at pp. 6-7)
39. Will There Be a Stage 7?
 Individuals with disabilities will gain in influence
 Wound warriors will assert their historic influence on civil rights, carrying their
special legitimacy
 Technology and technology law will advance
o And we may move toward—
o Universal Design
40. Differences between Disability and Traditional Civil Rights Law Basic Principles?
 Segregation or different treatment is sometimes lawful and even required—but only
to a point. This leads to the “search for the middle ground”
 Process is not just pertinent, it may be preeminent (Wynne v. Tufts University II, 976
F.2d 791 (1st Cir. 1992); Bd. of Ed. v. Rowley, S.Ct. 1982)
 Disability discrimination, as a discrete issue is rarely unconstitutional and is not
entitled to any form of heightened scrutiny (City of Cleburne v. Cleburne
Independent Living Center, S. Ct. 1985)
41. The Disability Rights that Americans Have Today Came About Through the Sacrifices
and Courage of Students with Disabilities Who Had No Protections
42. U.S. Disability Rights History:
 Getting the 504 regulations issued
o A 35 word law without a regulation that had almost no value
o No regulations adopted under Presidents Nixon or Ford
o President Carter and Secretary Califano appeared to be stalling
o Direct action by people assumed to be too weak to assert themselves succeeded
43. Where are they now? Judy Heumann
 Assistant Secretary of the Office of Special Education and Rehabilitation Services at
the US Dept. of Ed. from 1993 to 2001
 World Bank first Advisor on Disability and Development, 2002-2006
 Current Special Advisor on Disability Rights for the US State Department
44. See It for Yourself, Share It With Your Students
 “The Power of 504” Part 1 http://www.youtube.com/watch?v=HMC5UuiIQkI
 “The Power of 504” Part 2 http://www.youtube.com/watch?v=5vOM0-IOrKg
 Pop quiz – “crip lit. or crip history”
45. Your Students Are An Asset To Your Academic Community!
46. Diversity
 Students with disabilities are a legitimate and important element of diversity in the
classroom just as are students of color, women, LGBTQ individuals
 Even the Supreme Court recognizes diversity as a compelling interest important
enough to balance with other compelling interests
 My classroom experience with students with disabilities
47. Diversity
 Meeting the needs of students with disabilities leads to new ways of teaching
o E.g., Guckenburger v. Boston University II
o My classroom
48. Optional Part II (Time Permitting)
49. It All Begins with Southeastern Community College v. Davis (S.Ct. 1979)
 THE FIRST ACCOMMODATION CASE
Pertinent information in Colker and Grossman at pp. 9; 10; 63; 171; 244; 318; 331.
50. Ms. Davis Wants to Be a Nurse
 May a nursing school impose a physical qualification on an otherwise qualified deaf
person and thereby lawfully exclude her from admission?
 Davis is an LVN wants to become an RN
o She is academically qualified and has a sound professional record to as an RN
o Prior to admission, during an interview, Southeastern Community College
discovered that she “suffers from a serious hearing disability.”
o State Director of Nursing advised that she would not be safe, school assembled
full faculty, consulted with other schools and came to the same conclusion
 Davis was denied admission and sued
51. Two Extreme Positions
 But for (waive what I can’t do because of my disability)
o Excuse me from surgical rotations
o Have doctors remove their masks
 In spite of (excuse nothing)
o Section 504 prohibits only denying admission purposely, arbitrarily, or
irrationally on the basis of disability
o Not unlike old fashioned animus-based, purposeful racial discrimination
o Court says this is “closer to the plain meaning “ of the statute. However look
where it goes next
52. A New Model: A Middle Ground- Justice Powell
 “Section 504 … does not compel educational institutions to disregard [disability] or
make substantial modifications to allow disabled persons to participate.”
 There is a duty to make “modifications” provided that they are not “fundamental...”
53. In This Case, It is Fundamental
 Fundamental alteration would be required
o No way to do it safely– the college looked
o Would have to waive skills expected of nurses in North Carolina
o Would require lowering standards
o Academic freedom includes reasonable physical qualifications for nursing
 However:
o Insistence on past practices can discriminate
o Technology may change what is fundamental
54. lt’s the Law. Is it good public policy?
55. Accommodation Principles (1)
 Accommodation is not a guarantee of an outcome
 Students are not entitled to accommodations
 after-the-fact
o Documentation of disability
o Documentation that the requested accommodation is necessary and logical
related to the documented functional limitations
 Nothing is inherently exempt from the duty to accommodate
o Not papers to be done at home
o Not internships
o Not laboratory exercises
o Not a long standing written rule with no prior exceptions -- PGA v. Martin (S.Ct.
2001)
Pertinent information in Colker and Grossman at pp. 9; 10; 63; 171; 244; 318; 331.
56. Accommodation Principles (2)
 Accommodation may require “affirmative conduct,” treating the student
“differently” and “preferentially”
o “If we do it for you, then …”
o “Fairness” to other students does not matter; however their legitimate
expectations do
57. Accommodation Principles (3)
 The duty to accommodate has its limits
 A fundamental alteration. Consider:
o Purpose of the program
o Academic standards
o Impact on course continuity!
o Qualification standards
o State licensing requirements
o A direct threat to health and safety of others
o A personal service
58. With Universal Design Students with Disabilities Could Be Even More of an Asset
59. Universal Design, the Ultimate Innovation
 Students with disabilities aren’t the only students to find the way in which
knowledge is shared is inaccessible
 Spread the innovations made to help students with disabilities to all students
o Increase retention
o Increase persistence to graduation
60. Universal Design, the Ultimate Innovation
 For students with disabilities
o Removes emphasis on eligibility
o Diminishes isolation and stigma
o Solution to “veterans’ problem”
 For the mission of your DSS office
o Elevates role from gatekeeper to source of innovation
o Makes DSS more central to the mission of the college
61. Universal Design Example From My Classroom
 Syllabus is completed well in advance of first day of class
 Textbook is in multiple formats
 All lectures are recorded
 Every lecture has a detailed PowerPoint which is posted before class and left up until
the end of the semester
62. Universal Design Example
 Guest lecturers include persons who are deaf, blind, mobility impaired
 Guest lecturers who approach the disability rights professions from a wide variety of
circumstances --- NPO, government, government-sponsored, solo and big firm, etc.
63. Universal Design Example
 Students may take either of two formats of final examination



Variable weight class participation
In class exam
o A word, not a time limit for all students
o Two pages of notes for all students
Research project students may submit and early draft for feedback
64. CONCLUDING SUMMARY
65. Conclusions
 Admitting, educating and accommodating students with disabilities is a civil rights
matter; one deeply connected to the broader American Civil Rights experience.
 Educating students with disabilities provides them and our society with highly
necessary and unique benefits.
 Educating post-secondary students with disabilities represents an important
opportunity to advance instructional design for all students.