Students with Disabilities in
Postsecondary Education:
Legal Considerations
A Presentation for the
Disability Training Network
for the TAMU System
Antonis Katsiyannis, EdD
Consider...
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Discuss legislative mandates regarding individuals
with disabilities in postsecondary settings
Define reasonable accommodations
What is the “average person” approach and what
are the implications of applying such an approach?
Discuss implications of the Sutton trilogy court
cases
Participation Rates
Participation of student with disabilities in postsecondary
education has been increasing steadily
1995-1996 --six percent
1999-2000-- nine percent
2003-2004 --11.3% of undergraduates reported having a
disability.
2003-2004, 25.3% reported an orthopedic condition,
21.9% a mental illness or depression, and 17.4% a
health impairment, 10.9% an Attention Deficit
Disorder, 7.4% a learning disability; 3.8% a visual
impairment, and 4.9% a hearing impairment (National
Center for Education Statistics, 2006)
NLTS-2
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The NLTS2 report shows that the incidence of
students with disabilities completing high school
rather than dropping out increased by 17 percentage
points between 1987 and 2003.
During the same period, their postsecondary
education participation more than doubled to 32
percent.
In 2003, 70 percent of students with disabilities who
had been out of school for up to two years had
paying jobs, compared to only 55 percent in 1987.
Legislation –IDEA 2004
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IDEA 2004 requires “measurable
postsecondary goals based upon age
appropriate transition assessments related
to training, education, employment, and,
where appropriate, independent living skills.”
Higher Education Act
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Sections 762 and 763 of the Title VII, Part D, of the
Higher Education Act of 1965, as amended by the
Higher Education Amendments of 1998 (P.L. 105244), authorized demonstration projects to ensure
students with disabilities receive a quality higher
education program. Section 762 of the statute
authorizes grants to institutions of higher education
to “provide professional development and technical
assistance in order for students with learning
disabilities to receive a quality postsecondary
education”
Legislation- Section 504
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Section 504, a Civil Rights Act, intended to
eliminate discrimination on a basis of a
disability, included specific provisions in
Subpart E that apply to postsecondary
education programs or activities, including
postsecondary vocational education
programs or activities receiving federal
financial assistance.
Legislation-Section 504
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Section 504 requires that qualified individuals with
disabilities
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may not be denied admission or be subjected to
discrimination on the basis of a disability (104.2).
must have access to “academic, research, occupational
training, housing, health insurance, counseling, financial aid,
physical education, athletics, recreation, transportation,
other extracurricular, or other postsecondary education aid,
benefits, or services to which this subpart applies.” (104.3).
An institution must make modifications to its academic
requirements as are necessary to ensure non discrimination
(e.g., length of time for the completion of degree
requirements, course substitution required for graduation,
and course delivery)(104.4)
Legislation-Section 504
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Institutions are also required to provide auxiliary aids
such as taped texts, interpreters, readers in libraries,
and modified classroom equipment. Recipients are
not required to provide devices or services of a
personal nature (e.g., attendants, readers for
personal use) (104.4).
Institutions must provide comparable, convenient,
and accessible housing to handicapped students at
the same cost as to others (Section 104.5).
Institutions should also ensure access physical
education courses and athletics, counseling and
placement services and social organizations for
which the institution provides significant assistance
Legislation-ADA
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Title II of the Americans with Disabilities Act
of 1990 (ADA) prohibits state and local
governments from discriminating on the basis
of disability. Title II applies to public colleges,
universities, and graduate and professional
schools. The requirements regarding the
provision of auxiliary aids and services
described in Subpart E of Section 504 are
generally applicable under Title II.
Enforcement
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The Office of Civil Rights in the U.S. Department of
Education enforces both Section 504 and Title II of
ADA
According to guidance provided by the U.S.
Department of Education (2006), institutions are not
required provided a free appropriate public
education (mandated for school age children) but
rather provide appropriate academic adjustment.
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These adjustments though will be considered only upon
request and are intended to ensure equal educational
opportunity.
Adjustments which lower or substantial changes in
requirements are nor covered.
Definition
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A physical or mental impairment that
substantially limits one or more major life
activities of such individual
A record of such an impairment
Being regarded as having such an
impairment
Mental Impairment
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Any mental or psychological disorder such as
mental retardation, organic brain syndrome,
emotional or mental illness, and specific
learning disabilities (EECO)
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Examples-bipolar disorder, anxiety disorders,
obsessive-compulsive disorders…irritability, poor
judgment do not qualify
Test anxiety in itself not a disorder-must meet
criteria of generalized anxiety disorder to qualify
Major Life Activity
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Basic activities that the average person in the
general population can perform with little or
no difficulty
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Caring for one self performing manual tasks,
walking, seeing, hearing, speaking, breathing,
learning, and working
Reeves case-panic disorder with agoraphobiaunable to take vacation, go alone to the mall,
crossing bridges or going through a
tunnel…”everyday mobility” limitation-NOT
covered.
Substantially Limited
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Unable to perform a mjor life cativity that the
average person in the general population can
perform
Significantly restricted as to the condition,
manner or duration under which an individual
can perform a particular major life activity
Eligibility Process
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Institutions may establish reasonable standards for
documenting one’s disability from professionals such
as a physician, psychologist or other qualified
diagnostician.
Costs associated with necessary evaluations are
born by the individual with a disability.
Cost for needed adjustments, however, is the
responsibility of the institutions (U.S. Department of
Education, 2006).
Necessary auxiliary aids and services must be
provided in a timely fashion, including during the
period an eligibility is taking place (U.S. Department
of Education, 1998).
IDEA
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FAPE
Child find
Procedural safeguards
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Special education and related services demand more of
schools than non discrimination and reasonable
accommodations under Section 504
Tutoring may be a related service under IDEA but not
under ADA
Health services-OT/PT viewed as individualized services
and therefore not required under Section 504
Litigation
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Southeastern Community College v. Davis (1979)-A
student with a severe hearing impairment was
denied admission to a nursing program. The court
concluded that an otherwise qualified person is one
who is able to meet all of a program's
requirements in spite of his disability and that
institutions have the right to set and maintain
standards unless they are arbitrary. The Court further
noted that though the lines between lawful refusal
and illegal discrimination may not be always clear,
refusal to modify and existing program might
become unreasonable and discriminatory if there is
no consideration given to latest developments and
advances in technology.
Litigation
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Doe v. New York University (1981)- A medical
student was denied readmission based on
a history of violent and self destructive
behavior. The court held that the student's
psychological disorder was a disability but
that her exclusion was not a violation of
Section 504 because of the risk she
presented to herself and others.
Litigation
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Pushkin v. Regents of the University of
Colorado (1981)-the court held that decisions
based on the possible reactions of others,
not on risk, violated the central intent of
Section 504. Pushkin was denied admission
to a psychiatric residency program-did not
have the necessary emotional stability to
contend with patients' reactions to his
disability. Pushkin has Multiple Sclerosis and
uses a wheelchair.
Litigation
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Alexander v. Choate (1985)-the Court ruled that
accommodations that fundamentally alter the nature of
the benefit or program are not reasonable. The Court
further established that the definition of otherwise
qualified was to include the ability to meet a standard
or participate in a program with reasonable
modifications or accommodations
Wynne v. Tufts (1991)-an institution must be able to
document the legitimacy of the standard to a student's
academic program, the expertise brought to bear in
searching for reasonable accommodations, and how
any denied accommodations would either
fundamentally alter the academic program in question
or present the institution with an undue hardship.
Litigation-Eligibility
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McGuinness v. University of New Mexico School of
Medicine-a student alleged that he had a disability
because he had an anxiety disorder that substantially
limited his "academic functioning." His disorder
manifested itself when he took chemistry and
mathematics tests. The court ruled that although anxiety
disorder qualifies as impairment under the ADA, its
manifestation in only two subjects did not result in a
limitation of a major life activity. Further, even if this
impairment limited a major life activity, that limitation
would not be substantial. Finally, the court stated that
alternate study habits may resolve the effects of test
anxiety in the same manner as eyeglasses correct
impaired vision so that it does not constitute a disability
under the ADA.
Average Person Standard
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Another area of controversy has been the eligibility of
students with learning disabilities, particularly in light of
the standard applied. The ADA defines "disability" as an
impairment that substantially limits a major life activity.
This limitation is supposed to be determined with
reference not to one's innate abilities, but to the skills of
the average American citizen.
In contrast, Denbo (2003) argued that courts should
compare them to a similarly educated group and not to
the general population. Literal application of the
regulations would make it virtually impossible for anyone
with a college or graduate degree to be protected under
the ADA or Section 504
Average Person Standard-Litigation
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In Price v. National Board of Medical Examiners
(1997), the court employed the "average person in
the general population" formula in concluding that
three medical students who were denied additional
time and separate rooms for the United States
Medical Licensing Examination (USMLE) were not
disabled for purposes of the ADA.
Consequently, unless an individual is functionally
impaired as compared with the average person in
the general population, he or she should not receive
unfair advantages (Wilhelm, 2003)
The Sutton Trilogy
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Sutton v. United Air Lines, Inc.(1999)- the Court held
that the determination of whether an individual is
disabled should be made with reference to measures
that mitigate the individual's impairment, including, in
this instance, eyeglasses and contact lenses.
Albertson's, Inc. v. Kirkingburg (1999)-individual had
amblyopia--an uncorrectable condition that left him
with 20/200 vision in his left eye and thus effectively
monocular vision. The Court ruled that while
monocularity inevitably leads to some loss of
horizontal field of vision and depth perception
monocularity does not invariably cause a substantial
limitation of a major life activity
Murphy v. United Parcel Service, Inc.(1999)-the
individual was not qualified because medication was
sufficient to control his high blood pressure
Sutton Trilogy-Implications
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These cases stand for the principle that a person is
not "substantially limited" if a disability can be
mitigated (e.g., medication) and if the disability
does not limit a person in a "major life activity."
(Knauff, 2001).
Potentially, an individual who has epilepsy is not
entitled to disability discrimination legal protection if
the medication controls the seizures (Rothstein,
2004).
Court rulings addressing ADA disability
definition/eligibility in a manner to restrict inclusion
are in contrast to current medical and mental health
approaches to disability definition that expand
inclusion (Ranseen & Parks, 2005)
Issues
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Definition
Mental and substance Abuse Impairments
Accommodations
Licensure process-reporting obligations
Standardized tests-”flag”
Accessible Technology: on-line courses
Off –campus programming-study abroad
Architectural barriers
Consider...




Discuss legislative mandates regarding individuals
with disabilities in postsecondary settings
Define reasonable accommodations
What is the “average person” approach and what
are the implications of applying such an approach?
Discuss implications of the Sutton trilogy court
cases