Higher Education and Disability
Reprinted with permission from
HEATH the National
Clearinghouse on Post-secondary Education for Individuals with Disabilities,
Volume 14, Number 1, January/February 1995.
rights attorney Salome M. Heyward addressed the Nationís 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
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 Educationís Office for Civil rights, which monitors Sections
Ms. Heyward expressed the following
opinions about emerging legal trends relevant to higher education and disability
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
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.
way in which disability is defined is changing.
Since the 504 regulations were issued
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 lifeís major activities;
- has a record of such an impairment; or
- is regarded as having such an
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 institutionís 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.
are assuming advocacy roles at the post-secondary level.
Parents who correctly advocated for
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 studentís 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
- 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
lawsí 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
- 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).