21st Annual National Conference on Law and Higher Education
Stetson University College of Law
Clearwater Beach, Florida
February 10-12, 2000
THE SCOPE OF THE UNIVERSITY’S RESPONSIBILITY TO
ACCOMMODATE DISABLED STUDENTS
Teri B. Goldman
Blackwell Sanders Peper Martin, LLP
St. Louis, Missouri
Post-secondary students with disabilities are protected from discrimination
by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, et seq.
(“Section 504”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et
seq. (“ADA”). These laws prohibit discrimination on the basis of disability,1 and
as applied to colleges and universities, require institutions to make reasonable
accommodations for students with disabilities. In most instances, the two statutes
impose parallel requirements upon colleges and universities, and court
interpretations of the two are largely interchangeable.
The enrollment of persons with disabilities in post-secondary education
has increased. This may be partly a result of the identification requirements of the
1
Section 504 provides:
No otherwise qualified individual with handicaps in the United States, as defined in
section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .
The ADA provides:
[n]o individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges advantages, or
accommodations of any place of public accommodation . . . .
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Individuals with Disabilities Education Act (“IDEA”).2 It also may be the result
of the expansion of post-secondary educational opportunities to previously
unrepresented populations as well as the spiral effect of legislation resulting from
the requirements to accommodate disabled students. With this increased
enrollment, there has been a concomitant increase in the litigation with respect to
the accommodations that colleges and universities must make for disabled
students. In such litigation, to prevail on a disability claim, a student must prove
that (a) he or she is disabled or handicapped within the meaning of the laws, (b)
the student is otherwise qualified for participation in the educational program, and
(c) the institution denied the students request for a reasonable accommodation.
See Bercovitch v. Baldwin School, Inc. 133 F. 3d 141, 154 (1st Cir. 1998)
(applying ADA and Section 504 to private school); Axelrod v. Phillips Academy,
Andover, 46 F. Supp. 2d 72, 83 (D. Mass. 1999) (applying ADA to private high
school).3 Each of these elements implicates an institution’s policies and
procedures.
Definition of Disability. Many higher education disability cases address
whether a student is “disabled” under federal law. Under both Section 504 and
the ADA, a disability is defined as “a physical or mental impairment which
substantially limits one or more . . . major life activities.” See 29 U.S.C. §§
706(8)(B); 42 U.S.C. § 12102(2)(A). Federal regulations further define “major
life activities” to include such functions as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking, learning, and working. 45
C.F.R. § 48(j)(2)(ii). The Supreme Court added its interpretation to these
The IDEA is a federal law that provides a substantive right to a “free appropriate public
education” to all children with disabilities. 20 U.S.C. § 1400 et seq.
2
3
Section 504 imposes the additional requirement that the institution receives federal funds.
See 29 U.S.C. § 794(b)(2)(A); Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir. 1981);
Pushkin v. Regents of Univ. of Color., 658 F.2d 1372, 1384 (210th Cir. 1981).
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definitions in a trilogy of 1999 employment cases that promise to have a
significant impact on the threshold requirements for student claims.
Some impairments obviously substantially limit a major life activity. For
example, a person who is blind is substantially limited in the major life activity of
seeing. However, what about the individual who is near-sighted? Whether an
impairment substantially limits a major life activity is determined on a case-bycase basis. Sometimes, such impairments limit activities if the impairment goes
untreated, but is not limiting when the individual is treated and takes corrective
medication or other measures. In the past, courts have disagreed about whether
the effect of the impairment should be evaluated with or without such mitigating
measures. However, this issue was settled by the Supreme Court’s recent
decisions in Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999), Murphy v.
United Parcel Service, Inc., 119 S. Ct. 2133 (1999), and Albertsons, Inc. v.
Kirkingburg, 119 S. Ct. 2169 (1999). In each of these cases, the Court concluded
that mitigating measures must be considered in making the determination as to
whether an individual is disabled for purposes of the ADA.
In Sutton, the plaintiffs were twin sisters who were near-sighted. 119 S.
G. at 2143. They had been working as pilots for many years; but, when they
applied to be commercial pilots for United Airlines, they were turned away. The
twins had 20/20 vision when wearing glasses, but without correction their vision
was worse than 20/100, which was the weakest uncorrected vision United would
accept among their pilots. The twins claimed that they were disabled because,
without mitigating measures (corrective lenses), their impairments would be
disabling, and that when United refused to hire them because of their impairment,
the company regarded them as disabled. See Id. at 2143-44.
The Court held that the twins were not disabled under the ADA because
they are not “substantially limited in a major life activity” when they wear
glasses. Concluding that ADA plaintiffs’ impairments are to be evaluated in their
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mitigated state, the Court rejected plaintiffs’ argument that they should be
evaluated in their unmedicated state as an “impermissible interpretation,” contrary
to the plain meaning of the ADA. See Id. at 2145-46. The Court’s conclusion
was predicated on several grounds. First, the definition of disability as an
impairment that “substantially limits” a major life activity is in the present
indicative tense, indicating that it applies to people as they stand before an
employer (or a court) in the real world, not as they “might,” “could,” or “would”
if they did not mitigate their impairments. See Id. at 2146-47. Second, the ADA
requires that disability be determined on an individual basis, rather than by
lumping all individuals with some impairment into an automatically disabled
group. See Id. at 2147. Third, the initial “findings” section of the ADA identifies
43 million disabled Americans. The Court viewed this headcount as strong
evidence in support of its reading of the ADA because (a) requiring inclusion of
all individuals who would be disabled if unmitigated would result in many more
“disabled” Americans -- more than 160 million -- than provided for in the statute;
and (b) the studies on which the 43 million was apparently based reflect the
assumption that only those who are disabled even when mitigation is taken into
account are truly disabled. See Id. at 2146-49.
The Court also concluded that merely because United imposed a physical
requirement on job applicants did not mean it viewed individuals who could not
meet that requirement as disabled. Rather, an employer violates the ADA only
when it bases an adverse employment action on a “real or imagined” impairment
that is regarded as substantially limiting a major life activity. Id. at 2150. As the
Court explained, “an employer is free to decide that physical characteristics or
mental conditions that do not rise to the level of an impairment . . . are preferable
to others, just as it is free to decide that some limiting, but not substantially
limiting, impairments make individuals less than ideally suited for a job.” Id.
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Thus, assuming without deciding that “working” is a major life activity
(an assumption about which the Court expressed serious doubt), the Court
reasoned that, at most, United regarded Sutton’s vision impairment as precluding
her from working only as a commercial airline pilot. In that situation, working in
that limited capacity did not qualify as a major life activity because airline pilot is
not a “broad class of jobs.” Therefore, the plaintiff was not substantially limited
in her ability to work. See Id. at 2151-52.
Similarly, the plaintiff in Murphy, whose job as a mechanic required him
to drive large trucks on road calls and in road tests, was fired when he could not
qualify for a valid U.S. Department of Transportation (“DOT”) health card
because his blood pressure exceeded DOT health standards. See Id. See also
Murphy v. United Parcel Service, 946 F.Supp. 872, 875-76 (D. Kan. 1996)
(detailed factual findings), aff’d, 119 S. Ct. 2133 (1999). Without that card, the
plaintiff could not legally engage in an essential part of his job. However, with
his blood pressure medication, he was able to perform all of the daily activities an
unimpaired person could, other than repetitively lift very large weight. Without
the medication, the plaintiff’s blood pressure would have been high enough to
require hospitalization.
In pursuing an ADA claim, Murphy alleged that he was entitled to
protection under the ADA because he was disabled by his high blood pressure,
which would incapacitate, if not kill, him if he stopped mitigating its effects with
medication. Moreover, he argued that even if he wasn’t disabled, UPS regarded
him as disabled. However, as in Sutton, the Court held against him, incorporating
Sutton’s reasoning by reference. The Court concluded that, like Sutton, Murphy
must be assessed in his mitigated state, that is, while medicated. See Id. at
2137-39.
The plaintiff in Albertson’s, also a truck driver, was fired when he did not
qualify for a DOT health card. 119 S.Ct. 2165-66. The plaintiff in that case
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suffered from severe amblyopia, or “lazy eye,” such that he is practically blind in
one eye. However, he managed to adapt to his vision impairment, and was able to
perform most functions as any other person with normal stereoscopic vision.
Unlike Murphy, however, this plaintiff obtained a waiver from the DOT as part of
a study on the safety performance of monocular drivers. His employer, though,
refused to reinstate him and instead continued to rely on the base DOT
requirements. See Id.
Speaking to the issue of disability, the Court corrected the lower court’s
approach to disability determination. Id. at 2167. First, the Court stated that
merely performing a major life activity in a “different manner” was not a
“significant restriction” and, therefore, does not substantially limit that activity.
Rather, the ADA is concerned “only with limitations that are in fact substantial,”
not with those that are merely different. See Id. at 2168. Second, courts must
consider a plaintiff’s ability to compensate for his impairment. Mitigation by the
body’s own systems must be considered on the same basis as mitigation by
medication and other treatment. See Id. at 2168-69. Third, the Court emphasized
that all disability determinations must be made on an individualized basis. See Id.
at 2169.
Now, when determining whether an individual is “substantially limited” in
a major life activity, a court must consider the effects of any corrective measures
that person is taking, including medication. See Sutton, 119 S. Ct. at 2146-47
(“`disability’ exists only where an impairment ‘substantially limits’ a major life
activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if
mitigating measures were not taken”); Murphy, 119 S. Ct. at 2137. But in a more
general sense, Sutton, Murphy, and Albertsons indicate that plaintiffs should be
viewed as they are in real life, taking into account the impairments from which
they suffer and the things they do to mitigate those impairments.
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Taken together, these cases emphasize that the ADA requires
individualized disability assessments. Thus, students clearly cannot base their
claims of disability on a mere diagnosis. Moreover, colleges and universities
should not base decisions about reasonable accommodations solely on a student’s
diagnosis. For colleges and universities, the implication of the Court’s trilogy of
cases means policies and procedures should be designed to avoid decisions with
respect to student’s disabilities that are based on broad classifications of
impairments or on stereotypes about the significance of the limitation created by
the impairments from which students suffer. Significantly, the mere fact that
mitigation exists does not necessarily mean that an individual is not disabled.
Under the ADA or 504, an attempt at mitigation may fail; it may reduce the
severity of an impairment, but not to a level at which it ceases to be disabling; or
it may be disabling in its own right. This means that institutions must have
legitimate, nondiscriminatory, and individualized explanations for adverse
decisions regarding who is deemed disabled or what accommodations will be
provided.
This recent Supreme Court precedent already has been applied in the
higher education setting. More specifically, in Pacella v. Tufts University School
of Dental Medicine, 66 F. Supp. 2d 234 (D. Mass. 1999), the plaintiff, a former
student who suffered from severe amblyopia and myopia, sued under Section 504
and the ADA after he was dismissed for failing to perform at an acceptable
academic level. With corrective lenses, plaintiff still suffered from slightly
myopic monocular vision which left him without depth perception. However, he
used visual cues to compensate for the lack of depth perception and the corrective
lenses “allowed him to function ‘like a normal person [except it was] a little bit
harder for him [to read] really fine print.’” Based on this fact, the court concluded
that such an impairment did not sufficiently distinguish him from the general
population so as to be a substantial limitation on the major life activity of seeing.
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In analyzing the merits of the plaintiff’s case, the court credited the plaintiff’s
statements that he had some problems with academic instructional devices such as
the blackboard and overhead projector, that he could not use a coded answer sheet
normally, and that he was somewhat slower than his classmates when he
performed assignments requiring relief delineation. Although the court
acknowledged these problems could limit the general process of learning in many
settings, the plaintiff failed to demonstrate he was substantially limited in his
ability to learn. Accordingly, the court granted summary judgment in favor of the
University because the plaintiff was not disabled as defined under the federal
laws. See also Bercovitch, 133 F.3d at 155-56 (recognizing that Attention Deficit
Hyperactivity Disorder could be disability, court nevertheless held that, under
individualized determination, plaintiff did not demonstrate such an impairment
substantially limited his learning ability, because plaintiff’s grades remained
above average).
Otherwise Qualified. The Albertson decision also is significant because
it held that the plaintiff was not an otherwise qualified individual. This issue
arises in ADA and 504 cases because, even if a student has a physical or mental
impairment that substantially limits a major life activity, the student also must
demonstrate that he or she is “otherwise qualified” to participate in the college or
university program at issue. The federal regulations define a qualified person
with a disability as “with respect to post-secondary and vocational education
services, a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient’s education program or
activity.” 45 C.F.R. 84.(3)(k)(3).4
Under the IDEA, there is no “otherwise qualified” standard. All states mandate school
attendance for certain aged children and, therefore, a public school district cannot deny admission
to or participation in its general programs to students with IDEA disabilities.
4
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Applying this standard in the seminal Section 504 case, the United States
Supreme Court held that a nursing school could refuse admission to its program to
a deaf applicant because she did not have the requisite auditory skills to be
otherwise qualified. Southeastern Community College v. Davis, 442 U.S. 397
(1979). In that case, the applicant’s hearing disability substantially interfered
with her ability to understand speech and to participate in program’s
clinical training without very close individual supervision. Id. at 409-10.
Because the applicant’s participation in the nursing program would have resulted
in a fundamental alteration in the normal training program, the Court concluded
that the college did not discriminate on the basis of disability when it denied
admission. Id. As stated by the Court:
In this case, however, it is clear that Southeastern’s
unwillingness to make major adjustments in its nursing
program does not constitute such discrimination. The
uncontroverted testimony of several members of
Southeastern’s staff and faculty established that the purpose
of its program was to train persons who could serve the
nursing profession in all customary ways. This type of
purpose, far from reflecting any animus against
handicapped individuals, is shared by many if not most of
the institutions that train persons to render professional
services. It is undisputed that respondent could not
participate in Southeastern’s nursing program unless the
standards were substantially lowered. Section 504 imposes
no requirements upon an educational institution to lower or
to effect substantial modifications of standards to
accommodate a handicapped person.
Id. at 413.
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Thus, the Court defined an “otherwise qualified person” as “one who is
able to meet all of a program’s requirements in spite of his handicap.” Id. at 406.
Significantly, in articulating this definition, the Court specifically noted the
federal regulations that “explicitly excludes ‘devices or services of a personal
nature’ from the kinds of auxiliary aids” that an institution must provide and,
therefore, concluded that the nursing school was not required to give “close,
individual attention” to the plaintiff as a means to enable her to take part in the
school’s clinical program. Id. at 409 (citing 45 C.F.R. § 84.44(d)(2)) (emphasis
added). See also Aloia v. New York Law School, 1988 U.S. Dist. LEXIS 7769
(S.D.N.Y. 1988) (finding that law school’s refusal to waive its minimum GPA
requirement for student with “central nervous system metabolic disorder” was not
unreasonable or discriminatory where “law school has an obvious interest in
maintaining meaningful academic standards” and “to preserve the school’s
reputation”); cf. Doherty v. Southern College of Optometry , 659 F. Supp. 662,
672 (W.D. Tenn. 1987) (finding that refusal to alter physical education
requirement for history degree would clearly be unreasonable and discriminatory).
In Albertsons, the Supreme Court held that even if the plaintiff had been
disabled, he was not otherwise qualified for the job of truck driver because he did
not meet the general federal vision standards to which his employer adhered. The
waiver the plaintiff received from the DOT did not obviate the DOT’s own
regulations, especially when the waiver was part of an experiment to determine
whether monocular drivers are safe, and not a determination that it was safe for
the plaintiff to drive. Thus, the Court held it was unreasonable to place the
burden on the employer to prove that the DOT’s own safety regulation was a
legitimate qualification when the DOT itself continued to adhere to it for most
purposes.
Murphy, Sutton, and Albertsons all indicate that employers are entitled to
use physical qualification standards for employment decisions without
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automatically exposing themselves to liability for “regarded as” discrimination as
long as those standards or qualifications are not set at a level that substantially
limits a major life activity. Employers may classify employees and applicants on
the basis of their physical qualifications as long as those qualifications do not
amount to disabilities. The fact that all three cases involved safety standards in
industries where safety is a primary concern may indicate a certain sensitivity
with respect to issues relating to safety even though there did not appear to be
comprehensive or authoritative evidence of the need for these standards in the
record.
The Albertsons Court also expressed doubt about the Equal Employment
Opportunity Commission’s interpretive guideline that permits employer-imposed
safety-related job qualifications in response to a “direct threat,” “which might
impose a higher burden on employers to justify safety-related qualification
standards than other job requirements.” The Court noted that, “it might be
questioned whether the Government’s interpretation . . . is a sound one.”
Albertsons 119 S. Ct. at n.15 (citing 29 C.F.R. pt. 1630, App., §§1630.10,
1630.15(b)-(c) (1998)). Safety issues have been treated with the same deference
in the context of higher education. See Ascani v. Hofstra University, No. 987756, 1999 U.S. App. LEXIS 7654, *1-4 (7th Cir. Apr. 9, 1999) (unpublished
summary judgment order) (affirming summary judgment against former graduate
student’s claims that she was expelled because of her mental illness; holding that,
even when behavior derives from disability, student who threatens professor is not
“otherwise qualified”).
Whether an individual is “otherwise qualified” can be inextricably
intertwined with whether an accommodation is reasonable. See Axelrod, 46 F.
Supp. 2d at 83-84 (student with Attention Deficit Hyperactivity Disorder was not
“otherwise qualified” when school made accommodations for disorder, but still
failed to meet the academic standards; court deferred to school’s prescribed
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academic standards). Similarly, in Bercovitch, the court held that a student with
Attention Deficit Hyperactivity Disorder was not otherwise qualified because he
failed to meet the disciplinary requirements of the school. 133 F.3d at 154-55
(applying Section 504 and ADA). Significantly, the court stated that a “school’s
code of conduct is an integral aspect of a productive learning environment” and
the “law does not require an academic program to compromise its integral criteria
to accommodate a disabled individual.” Id. As noted by the court, “many of the
issues that arise in the ‘qualified’ analysis, also arise in the context of the
‘reasonable modifications’ or ‘undue burden’ analysis. That is, if more than
reasonable modifications are required of an institution in order to accommodate
an individual, then that individual is not qualified for the program.” Id. at 154.
Reasonable Accommodations. Although federal law does not mandate
an individualized program for every higher education student with a disability as
does the IDEA, it does require colleges and universities to make reasonable
accommodations on an individually determined basis. For guidance on what
constitutes a reasonable accommodation, the Section 504 regulations merely
require the following:
Academic requirements. A recipient to which this subpart
applies shall make such modifications to its academic
requirements as are necessary to ensure that such
requirements do not discriminate or have the effect of
discriminating, on the basis of handicap, against a qualified
handicapped applicant or student. Academic requirements
that the recipient can demonstrate are essential to the
program of instruction being pursued by such student or to
any directly related licensing requirement will not be
regarded as discriminatory within the meaning of this
section. Modifications may include changes in the length
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of time permitted for the completion of degree
requirements, substitution of specific courses required for
the completion of degree requirements, and adoption of the
manner in which specific courses are conducted.
34 C.F.R. § 104.44(a).
Thus, Section 504 simply requires that institutions of higher education
provide disabled students with those reasonable accommodations that are
necessary to prevent discrimination on the basis of disability. Moreover, federal
law does not require colleges and universities to take affirmative steps to identify
those students who might be covered by the Act. Rather, as noted by one court, to
be liable, an academic institution must have, or reasonably be expected to have,
knowledge of a student’s disability. Wynne v. Tufts Univ. Sch. of Medicine, 976
F.2d 791 (1st Cir. 1992), cert. denied, 123 L.Ed.2d 470 (1993). See also
Nathanson v. Medical College of Pennsylvania, 1990 U.S. Dist. LEXIS 3055, at
*9-10 (E.D. Pa. 1990) (noting that “defendant had no apparent legal obligation to
anticipate plaintiff’s alleged needs” and, although a higher education institution
must make its programs accessible to otherwise qualified handicapped
individuals, that does not mean that “an institution must foresee every discomfort
that a program participant may have”); Murphy v. Franklin Pierce Law Center,
1995 U.S. App. LEXIS 13474 (1st Cir. 1995) (“Because Murphy never informed
the Law Center that the diplopia was interfering with her ability to perform until
after the end of her fourth semester, it is not chargeable with notice of this
handicap before then”).
Accordingly, institutions of higher education do not have to take steps to
locate and identify every student who might satisfy the definition of disabled
under Section 504. Indeed, the applicable regulations specifically prohibits
colleges and universities that receive federal funds from asking if an applicant is
handicapped, although such schools may do so confidentially after an individual
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has been admitted for the purpose of providing reasonable accommodation. 45
C.F.R. § 84.42(b)(4). However, educational institutions may be put on notice that
a student has a handicapping condition and requires reasonable accommodation
with less than direct notice. See Nathanson v. Medical College of Pennsylvania,
926 F.2d 1368 (3d Cir. 1991) (finding sufficient evidence to raise issue of fact as
to whether medical college had reason to know that plaintiff was handicapped
where she met with administrator and informed her that she had neck and back
injuries that prevented her from attending classes even where the handicap was
not visibly obvious and plaintiff did not make a direct request for
accommodation); Doe v. New York Univ., 666 F.2d 761 (2nd Cir. 1981) (noting
that long history of mental impairments indicated that former medical student was
handicapped individual). Thus, colleges and universities should have procedures
to determine if a disabling condition exists and whether such students are
otherwise qualified in spite of the handicap using the recent Supreme Court cases
as guidance.
Moreover, the federal regulations require colleges and universities that
receive federal funding to make reasonable accommodations to the “known
physical or mental limitations” of otherwise qualified individuals unless the
recipient can show that such an accommodation “would impose an undue
hardship on the operation of its program.” 45 C.F.R. § 84.12(a). As applied to
institutions of higher education, the Section 504 regulations require the provision
of some “auxiliary aids” to prevent discrimination on the basis of disability. The
pertinent regulation provides that
(1) A recipient to which this subpart applies shall take such steps as are
necessary to ensure that no handicapped student is denied the benefits of,
excluded from participation in, or otherwise subjected to discrimination
under the education program or activity operated by the recipient because
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of the absence of educational auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective
methods of making orally delivered materials available to students with
hearing impairments, readers in libraries for students with visual
impairments, classroom equipment adapted for use by students with
manual impairments, and other similar services and actions. Recipients
need not provide attendants, individually prescribed devices, readers for
personal use or study, or other devices or services of a personal nature.
45 C.F.R. § 84.44(d) (emphasis added).
The limiting language of § 84.44(d)(2) that expressly provides that a
recipient need not provide devices or services of a personal nature may limit the
litigation over auxiliary aids that current plagues public school districts with
respect to IDEA matters. To date, courts have not interpreted Section 504’s
reasonable accommodations or auxiliary aids provisions as broadly as the IDEA’s
FAPE provisions and have allowed colleges to cite costs and the effect on the
academic program as factors in denying requested services. The Bercovitch
decision, arising out of a primary school setting, provides guidance for
distinguishing the institutional obligations required under the ADA and Section
504 from the obligations required by the IDEA. See Bercovitch, 133 F.3d at 15254 (ADA and Section 504 doe not transform school into special needs school;
school need not modify its discipline policy top accommodate disabled student).
However, to prevail if litigation ensues over such issues, officials within
the institution must have assessed the situation and come to a justifiable reason
for denying a student’s request. As noted in the leading case on this issue, “[i]f an
institution submits undisputed facts demonstrating that the relevant officials
within the institution considered alternative means, their feasibility, cost and
effect on the academic program, and came to a rationally justifiable conclusion
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that the available alternatives would result either in lowering academic standards
or requiring substantial program alternation, the court could rule as a matter of
law that the institution had met its duty of seeking reasonable accommodation.”
Wynne, 932 F.2d at 26. See also Guckenberger v. Boston Univ., 8 F. Supp. 2d 82
(D. Mass. May 29, 1998) (rejecting claim of class action plaintiffs with learning
disabilities that university should provide course substitution for the College of
Arts and Sciences’ foreign language requirements and concluding that “so long as
an academic institution rationally, without pretext, exercises its deliberate
professional judgment not to permit course substitutions for an academic
requirement in a liberal arts curriculum, the ADA does not authorize the courts to
intervene even if a majority of other comparable academic institutions disagree”).
Cf. Barnes v. Converse College, 436 F. Supp. 635, 637 (D.S.C. 1977) (finding
that plaintiff was otherwise qualified handicapped person who could adequately
perform in academic class in which she wished to be enrolled with aid of
interpreter, noting that cost of interpreter for the course was only $750 and
holding that college was obligated to provide and pay for interpreter pursuant to
Section 504); U.S. v. Bd. of Trustees for Univ. of Alabama, 908 F.2d 740 (11th Cir.
1990) (finding that UAB’s auxiliary aids policy that indicated that it would not
provide interpreters or other “costly” aids and directing students to seek free
interpreter services provided by state’s vocational rehabilitation service or other
sources violated Section 504).
Although Section 504 as applied to post-secondary institutions is not as
procedurally and substantively burdensome as the IDEA, colleges and universities
must have procedures and practices in place to address the needs of their disabled
students. First, all institutions of higher education should have procedures to
determine if a student’s asserted disability constitutes a substantial limitation on a
major life activity, thus entitling the student to reasonable accommodations. As
part of this process, an institution is not required to accept the student’s or the
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student’s doctor’s or psychologist’s bare claim that the student is handicapped.
Rather, the institution can and should be prepared to request recent outside
assessments that substantiate a particular handicapping condition or to conduct its
own evaluation if the disability is such that it is unclear as to whether a substantial
limitation exists. As part of this process, the institution may need to seek
guidance from individuals who have expertise in the specific disability.
Similarly, the institution must be prepared to acknowledge the existence of
handicapping conditions even where a student has not directly notified the
institution of Section 504 eligibility and requested reasonable accommodation.
Thus, if a student has provided sufficient indication of a condition that puts the
institution on notice that a Section 504 disability may exist and requests
accommodations, the institution must properly respond.
Assuming the institution determines that the student qualifies for the
protection of Section 504, it then needs to have a procedure by which students can
request reasonable accommodations. The institution then must be prepared to
respond to such requests and to justify the denial of any requests that it believes
would alter the fundamental nature of its academic programs or would constitute
undue hardships. Such responses and denials should not be ad hoc, unilateral
administrative decisions, but should be based on an inquiry that satisfies the
Wynne standard. If the institution follows such procedures, it is highly likely that
a court will give that decision the oft-articulated deference due to academic
decisions and highly unlikely that a court will second-guess the determination. In
addition, each institution must determine whether the student or administration
will be responsible for communicating the agreed upon reasonable
accommodations to necessary faculty and must ensure that faculty implements all
necessary reasonable accommodations.
Finally, the institution must train appropriate individuals with respect to
the differing requirements of IDEA and Section 504. Those individuals can be in
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the forefront of orienting the institution’s Section 504 (and some previously
identified IDEA) students to those differences. These students must be made
aware that the extensive IDEA support system is no longer available and that they
will have to meet the institution’s academic requirements to remain otherwise
qualified. Proper orientation may well reduce the unrealistic expectations that
such students may have and may assist in avoiding litigation.
By ensuring that such processes are in place, institutions of higher
education should be positioned to appropriately respond to student requests for
reasonable accommodation under Section 504 and to limit expansion of Section
504’s scope as it now applies to disabled students enrolled in colleges and
universities.
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