Higher Education and Disability Law:  Emerging Issues

Reprinted with permission from HEATH the National Clearinghouse on Post-secondary Education for Individuals with Disabilities, Volume 14, Number 1, January/February 1995.

Civil rights attorney Salome M. Heyward addressed the Nation’s Capital Area Disability Support Services Coalition at its fall meeting at George Washington University. Ms. Heyward, a leading authority in the field of disability and discrimination law, has 16 years of experience in the field. She has written numerous publications concerning the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. A report on portions of her address follows.

Ms. Heyward began by telling the group that for the past three and a half years, she has been observing the development of policies implementing disability law at higher education institutions. She noted that since the passage of the Americans with Disabilities Act (ADA) in 1990, numerous court cases have been filed. Most of these cases are concerned with the rights of employees, but some may affect decisions in other areas. Since 1977, colleges and universities have been required to comply with Section 504 of the Rehabilitation Act, which spells out guidelines for facilities and programmatic access to post-secondary institutions. Relatively few cases have been brought to court in the 16 years since Section 504 was implemented. However, a great deal of disability policy was developed through letters of findings issued by the U.S. Department of Education’s Office for Civil rights, which monitors Sections 504 compliance.

Ms. Heyward expressed the following opinions about emerging legal trends relevant to higher education and disability tissues.

Trends

An emotional climate has developed surrounding the interpretation of disability laws.

Ms. Heyward indicated that as a result of the passage of the ADA, expectations among individuals with disabilities have risen regarding the nature of services and opportunities that must be provided. Campus administrators sometimes react to requests by interpreting the laws arbitrarily and by setting contradictory or inequitable policies, which contributes to the emotional climate. It is important to treat similar issues with equity. Having a regular intake procedure for all students who request accommodations would be evidence of equity, as would written procedures for requesting and using accommodations.

In making policies or setting criteria, Ms. Heyward advocated identifying the outcome [such as, a student must be able to comprehend the course material and communicate that comprehension to the instructor], but permitting the student to obtain the accommodation which will allow him or her to achieve the outcome, so long as the accommodation does not alter the fundamental nature of the course or program or impose an undue burden. Ms. Heyward advised campus officials to establish and publish clear procedures and guidelines and to maintain written documentation of all action in order to protect the institution from being found to discriminate.

She provided the following example to illustrate the importance of maintaining documentation of actions taken: A student identified himself to the designated campus official as a person with disability and presented appropriate documentation. The official recommended that the student take certain steps to obtain the necessary accommodations, and the student agreed. The official wrote down these steps on a regular intake form. In this case, the student was required to present a form to faculty members (however, this procedure is not necessarily common to all institutions). The student did not present the form to faculty members so that the accommodations could be provided. When the student began to fall behind in the course work, he then demanded the provision of the accommodations, which could not be delivered instantly. The student filed a complaint claiming that the college did not provide the accommodations which were requested. By showing the documentation of each action taken by the designated officials, the college demonstrated that it had followed nondiscriminatory procedures and had in fact attempted to accommodate the student in a timely fashion.

The way in which disability is defined is changing.

Since the 504 regulations were issued in 1977, few have questioned whether a person with a documented disability is protected by the law. Under the ADA, however, most controversies center around the question of whether the individual with a documented disability is, in fact, "disabled" under the law. Both Section 504 regulations and the ADA say that a person with a disability includes one who:

• has a substantial limitation to one or more of life’s major activities;
• has a record of such an impairment; or
• is regarded as having such an impairment.

The following example highlights the controversy surrounding what constitutes a disability: Federal enforcement agencies have held that persons with diabetes whose condition is adequately controlled by medication are "disabled." However, a federal district court recently ruled that a person with diabetes that is currently controlled by medication does not have a substantial limitation on a major life activity and is therefore not protected by the ADA. Such a precedent might call into question the status of people with other controlled disabilities.

Some faculty refuse to comply with the laws.

Ms. Heyward identified another trend: Some tenured faculty are refusing to comply with the laws. Several complaints were made by students with documented disabilities who requested additional time to complete exams (a common accommodation) and were denied this request by faculty. Some faculty members claim that their classroom is their domain and that they have the academic freedom to teach the way they believe is best. Others have said that giving one student more time is unfair to the rest of the class. The tenured faculty member who believes that his job is secure often thinks that he need not fear reprisals from the university. Faculty members have also argued that it is the institution’s responsibility to provide accommodations, not theirs. However, an institution that cannot guarantee a student with a documented disability the accommodations he or she needs may be found to be violating the laws.

Parent are assuming advocacy roles at the post-secondary level.

Parents who correctly advocated for their school-aged children under the Individuals with Disabilities Education Act often continue asserting rights and demanding services for their now-adult sons and daughters. However, the civil rights laws which protect students after they leave high school are to be invoked by the individual with the disability. Ms. Heyward explained that a parent who is taking over the student’s role often does not understand the 504 regulations or the ADA. Such parents have been know to demand a "promise" of services even before a student is admitted or enrolled. The pressure campus administrator may be unaware of what services the college can provide and may agree to deliver services which are not required or which are unreasonable. When the student shows up to "claim" the promised services and finds that they cannot be provided, he becomes angry - and so do the parents.

In these cases, the parent fail to realize that at the post-secondary level, the provision of services is a cooperative agreement between the student and the college. They fail to understand that the student must provide documentation that establishes (1) the existence of a disability and (2) his need for accommodations. Further, the student must take responsibility for assisting the institution in identifying the appropriate accommodations. Ms. Heyward told disability support service providers that they need to take the time to explain to parents that the right and responsibilities of individuals with disabilities in the post-secondary arena differ from those they experienced in the elementary and secondary environment.

Sources for Additional Information

To learn about the specific cases that are shaping disability and higher education policy, the following resources are suggested.

• Disability Accommodation Digest, a quarterly newsletter edited by Salome Heyward, provides information regarding disability discrimination laws in general, and the ADA in particular. Recent articles include The Waiver Controversy, Reasonable Accommodation: Is It Really a Compliance Standard? and Negotiating with Federal Enforcement Agencies. The Digest is available for $65 per year. You will receive a 10 percent discount if you order the previous 12 issues of the Digest. To subscribe, send a check or purchase order to Heyward, Lawton & Associates, PO Box 357, Narragansett, RI 02882-0357. (800)525-9220; Fax (401)789-5089.
  
• Enforcing the ADA - A Status Report Update from the Department of Justice is a periodic publication of the Public Access Section of the Civil Rights Division of the U.S. Department of Justice. The Document briefly summarizes recent settlements and agreements, describes various types of available technical assistance, and lists other sources of information about the ADA. To receive a current or back issue, call (800)514-0301 (Voice) or (800)514-0383 (TT). Calls from the Washington, DC area can be made to the same numbers but with the local area code: (202)514-0301 (Voice) or (202)514-0383 (TT).
  
• College Students with Disabilities: Litigation Trends, by Laura Rothstein in The Review of Litigation (Summer 1994, Vol. 13, No. 3 pp. 425-45), is an article campus administrators and disability advocates can consult to learn how recent litigation affects higher education institutions. Ms. Rothstein reviews the laws’ requirements and then identifies the following areas as those most affected by litigation: admissions, programs and services for enrolled students, physical facilities, and (confidentiality of) student records. Given the renewed attention to disability issues on campus since the passage of the ADA, Ms. Rothstein suggests that likely areas of future litigation will include the costs of providing auxiliary aids and removing physical barriers, accommodations for students with learning disabilities - especially whether certain modifications are fundamental alterations to the essential requirements of the program - and how to treat students with psychological impairments.
  
• Several AHEAD publications previously reviewed in Information from HEATH also discuss relevant disability and higher education law. For a complete publications list, contact AHEAD at PO Box 21192, Columbus, OH 43221-0192. (614)488-4972 (Voice/TT).