ACCESS TO HIGHER EDUCATION FOR STUDENTS WITH DISABILITIES:
WHAT IS REASONABLE? WHAT IS FUNDAMENTAL? & WHO IS QUALIFIED?
L. Scott Lissner
DRAFT 5/92
Nearly twenty years ago landmark legislation, Section 504 of
the Rehabilitation Act of 1973 [1], was enacted to insure that
individuals with disabilities [2] had access to higher education.
The passage of time has not served to simplify the issues sur-
rounding access, nor allowed them to be relegated to a back
burner. Because of the changing demographics, the enactment of
the Americans With Disabilities Act [3] (ADA), and the publicity and
public awareness inspired by the ADA; institutions are likely to
face increased litigation if they do not renew their focus on
access. [4]
It is outside the focus of this review to demonstrate the
scope of this issue by fully presenting the demographics. In
brief there are 43 million Americans with disabilities, over 4.3
million students in the public school system have been identified
as entitled to legal protection, and there are over 1.5 million
colleges students with disabilities on our campuses. Based
on demographics alone we can expect the numbers of individuals with
disabilities participating in higher education to continue to
rise over the next ten year period. [5] This review will explore
the key federal legislation, and court interpretations that
guarantee access to higher education for individuals with disa-
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1. Pub. L. No. 93-112, 29 U.S.C. SS791 (1991).
2. The author recognizes that individual with disabilities is the
currently accepted language; in discussing older legislation and
court cases the author, for the sake of clarity, will use the
terms handicapped, disabled, etc. as used in the original
sources. Such terms should be considered interchangable for the
purposes of this analysis.
3. Pub. L. No. 101-336, 42 U.S.C. SS12101 (1991).
4. Hill, W.A., Americans With Disabilities Act of 1990: Signifi-
cant Overlap with Section 504 For Colleges and Universities. 18
J.C.U.L. 415-417 (1991). Rothstein, L.F., Students, Staff and
Faculty With Disabilities Current Issues for Colleges and Univer-
sities. 17 J.C.U.L. 471 (1990). Kramer, S.G. & Dorman, A.B. A
White Paper on the Americans With Disabilities Act. Proskaure,
Rose, Goetz & Mendelson. New York, NY. (1990).
5. Lissner, L.S. Students With Disabilities: The Pragmatics of
Programs and Policies. In At Risk Students, R. Hashway (Ed.).
Praeger Press, New York, NY (In Press).
--------------------
bilities. [1] The reader should keep in mind that a balance must
be struck in order to meet our dual responsibilities of providing
equal access and maintaining the mission, quality and, integrity
of academic programs.
This review will first place Rehabilitation Act into context
then examine the courts' enforcement of the regulations promul-
gated under it. The final section will provide a brief examina-
tion of the impact of the ADA on existing legislation and case
law affecting higher education.
Within the above framework, this analysis will follow the
four elements that the courts require for a complaint to be
actionable under Section 504: 1) the program must receive feder-
al financial assistance to fall in the Act's jurisdiction; 2) the
plaintiff must have a disability as defined by the Act; 3) the
plaintiff must be otherwise qualified; 4) the denial of access
must impermissibly discriminate. [2]
SECTION 504 OF THE REHABILITATION ACT OF 1973
It is important to keep in mind that the federal laws con-
cerned with access for people with disabilities are civil rights
laws. Their intent, language, and remedies are similar to those
of Title VI, Civil Rights Act of 1964, and Title IX of the Educa-
tion Amendments of 1972, which provide protection from discrimi-
nation on the basis of race and sex. The intent of this legisla-
tion is to provide qualified persons with disabilities equal
opportunities in society [8]. The congressional mandate is for
equal access not affirmative action. [9] It is also important to
note that the courts have given particular deference to the
administrative regulations developed to enforce the Rehabilita-
tion Act. This strong reliance on the regulations to establish
congressional intent is in recognition of the fact that Congress
participated in their development and formally endorsed their
final form. [10]
"No otherwise qualified handicapped individual in the
United states shall, solely by reason of his handicap,
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1. It is also beyond the present scope to fully explore the
parallell hiring issues. The reader is refered to Hill cited in
note 1 for an exploration of these issues.
2. Bonner v. Arizona Department of Corrections, 714 F. Supp. 420,
421 (1989).
8. Consoidated Rail Corp. v. Darrone, 104 S. Ct. 1250 & 1255
(1984). Beihl, R.G. Guide to the Section 505 Self Evaluation for
Colleges and Universities NACUBO, Washington D.C. (1978). Kram-
er, S.G. & Dorman, A.B. A White Paper on the Americans With
Disabilities Act. Proskaure, Rose, Goetz & Mendelson. New York,
NY. (1990).
9. Southeastern Community College v. Davis, 442 U.S. 407-412.
10. Consolodated Rail Corp. v. Darrone 104 S. Ct. 1254-1255, nn.
14-16 (1984). Nassau County v. Arline 480 U.S. 276-278 (1987).
--------------------
be excluded from participation in, be denied the bene-
fits of, or be subject to discrimination under any
program receiving federal financial assistance." [1]
The above quote from the Rehabilitation Act is the
congressional mandate from which the regulations and court
interpretations concerning access to higher education for individuals
with disabilities flows. The Rehabilitation act goes on to define
what programs and activities fall under the act's jurisdiction,
who may be considered legally handicapped, and what remedies are
available against discrimination.
The original phrasing of the Rehabilitation Act of 1973
claimed under its jurisdiction programs and activities receiving
federal financial assistance. In 1984 the supreme court decided
Grove City v. Bell [2] a sex discrimination suit brought to the
Court under title IX. The Court held that student-aid funds
received by the college crosses the threshold for receiving
federal funds and thus triggers jurisdiction. [3] In establishing
the reach of that jurisdiction the Court determined that only
those programs directly receiving the federal funds were covered.
Since the only funds reach Grove City College, a small private
institution, were student financial aid funds the only programs
prohibited against sex discrimination by title IX were those of
the Financial Aid Office. The rest of the institution could
discriminate on the basis of sex and by logical extension disa-
bility. [4]
During the same session as the ruling on Grove City College
the Court decided Consolidated Rail Corporation v.
Darrone. [5] This action was brought under Section 504. The
Court held that the scope of 504's jurisdiction should be defined
in the same narrow fashion as they had for Title IX in Grove City
5College. [6]
Congress in direct response to the threat that these cases
represented to the success and scope of the civil rights stat-
utes, enacted the Civil Rights Restoration Act (CRRA). [7] The CRRA
amended the language in Title IX of the Education Amendments,
Title VI of the Civil Rights act of 1964, The Age Discrimination
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1. Pub. L. No. 93-112 Sec. 504, 29 U.S.C. SS791
2. 465 U.S. 555
3. Id. at 564
4. Id. at 570-571.
5. 465 U.S. 624.
6. 465 U.S. 636.
7. Pub. L. 100-259, 29 U.S.C.A. SS794 (1988).
--------------------
Act of 1975 and Section 504 of the Rehabilitation Act of 1973. [1]
In the context of Section 504 the legislative record states:
"When federal financial assistance is extended to any
part of a college, university, other postsecondary
institution, or public system of higher education, all
of the operations of the institution or educational
system are covered." [2]
The amended Section 504 now includes the phrase "...program or
activity means all of the operations of..." [3]
In 1990 the United States Court of Appeals, Eleventh Circuit
heard The U.S. v. University of Alabama. [4] One of the issues in
this case was Section 504 coverage in terms of the provision
of auxiliary aids to students in non-credit non-degree courses.
The Court held that "...any doubt that section 504 was intended
to cover non-degree and non-credit programs was resolved by the
Civil Rights Restoration Act..." [5]
Having established which programs and activities are under
Section 504 jurisdiction; an examination of who is protected must
be conducted. This examination rests on the answers to two
questions. In light of the Rehabilitation Act, Who is considered
"handicapped" and who may be considered "otherwise qualified"?
The Rehabilitation Act of 1973 defines "handicapped person"
as:
"...Any person who (i) has a physical or mental disabil-
ity which substantially limits one or more of such
person's major life activities, (ii) has a record of
such an impairment, or (iii) is regarded as having such
an impairment." [6]
Congress listed three exclusions to the above definition. Ac-
tions against individuals based on their current use illegal
drugs; alcoholics whose current use of alcohol prevents them from
performing the duties, meeting the standards, or pose a direct
threat to property or safety; individuals with a contagious
disease or infection that constitutes a direct threat to the
--------------------
1. Hill, W.A., Americans With Disabilities Act of 1990: Signifi-
cant Overlap with Section 504 for Colleges and Universities. 18
J.C.U.L. 390-391.
2. S. Rep. No. 64, 100th Cong., 2d. Sess. 16, in U.S.C.C.A.N. 3,
18. (1988). Emphasis added.
3. 29 U.S.C. SS 791 Section 504 (b).
4. 908 F. 2d. 740.
5. Id. at 750.
6. Pub. L. No. 93-112, 29 U.S.C. SS791 (1991).
--------------------
safety of others have been excluded from protection under the
Rehabilitation Act. [1]
The term physical impairment has been interpreted by the
Department of Justice (DOJ) to include any physiological disorder
or condition that affects the following systems or organs: neuro-
logical, musculoskeletal, sensory, respiratory, cardiovascular,
reproductive, digestive, genitourinary, lymphatic, or endocrine,
motor, speech, or skin. The term mental impairment has been
interpreted by the DOJ to include: mental and psychological
disorders such as mental retardation, organic brain syndrome,
emotional or mental illness, and learning disabilities. The DOJ
regulations go on to define major life activities as functions
such as walking, speaking, seeing, hearing, learning, working,
self care and breathing. [2]
The courts have interpreted these regulations to include
individuals with AIDS, hypersensitivity to smoke, arrested alco-
holism and drug addiction, kleptomania, compulsive gambling,
epilepsy, learning disabilities, and diabetes. [3] The courts have
denied protection in cases involving individuals currently using
illegal drugs and alcohol; exhibiting self-destructive or violent
behaviors; or with left-handedness, post-traumatic-stress disor-
der, occasional episodes of stress, depression, and mental ex-
haustion, crossed eyes, chronic lateness. [4]
The cases where the courts have denied protection, for
reasons other than jurisdiction, fall into three categories.
The condition in question was not found to interfere in one of life's
major activities so the plaintiff is not legally handicapped; the
case fell into one of the legislated exclusions, or the plaintiff
was not otherwise qualified. The boundaries between these three
categories are at best ambiguous. The majority of the case law
concerning Section 504 has centered on this issue of establishing
the limits of protection. After reviewing the parameters of who
is protected the question of who bears the financial burden for
reasonable accommodations will be discussed
Southeastern Community College v. Davis [5] is one of the few
Supreme Court Cases involving Section 504 and student access to
higher education. Davis, a student with a severe hearing impair-
ment was denied admission to a nursing program. This case cen-
tered on defining "fundamental/essential standards" to determine
if the applicant was "otherwise qualified". This analysis was
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1. Ibid.
2. 28 C.F.R. 41 SS41.31 (1991).
3. Rothstein, L.F., Students, Staff and Faculty With Disabili-
ties: Current Issues for Colleges and Universities. 17 J.C.U.L.
472 (1991).
4. Id. at 475.
5. 442 U.S. 397 (1979).
--------------------
based on the definition of qualified handicapped person provided
in the regulations promulgated under Section 504 " With respect
to postsecondary and vocational education services, a handicapped
person who meets the academic and technical standards requisite
to admission or participation in the recipient's education pro-
gram or activity;" [1] Additional elements in the Supreme Court's
analysis included the impact on the safety of others, would the
level of accommodation required alter the nature of the benefit,
was there an undue burden on the institution and did the Rehabil
itation Act require an affirmative action stance. [30] The Supreme
Court's Opinion included the following statements (emphasis
added).
"An otherwise qualified person is one who is able to
meet all of a program's requirements in spite of his
handicap." [31]
"We do not suggest that the line between lawful refusal
to extend affirmative action and illegal discrimination
against handicapped persons always will be clear. It is
possible to envision situations where an insistence on
continuing past requirements and practices might arbi-
trarily deprive genuinely qualified handicapped persons
of the opportunity to participate in a covered program.
Technological advances can be expected to enhance oppor-
tunities to rehabilitate the handicapped or otherwise
qualify them for some useful employment. Such advances
also may enable the attainment of these goals without
imposing undue financial and administrative burdens upon
a State. Thus situations may arise where a refusal to
modify and existing program might become unreasonable
and discriminatory. [32]
The Supreme Court's decision confirmed the right of institu-
tions to set and maintain standards as long as they are not
arbitrary. In evaluating students as otherwise qualified by
seeking reasonable accommodation the Court established that
accommodations that fundamentally alter the nature of the benefit
or program are not reasonable and thus not required. The court
also examined the impact of the plaintiff's presence on the
safety of others in the specific context of the setting. Addi-
tionally, the Court held that institutions must provide an equal
opportunity but are not generally obligated to provide compensa-
tory opportunities through affirmative action. The Court's
analysis of these three elements resulted in finding for the
--------------------
1. 34 C.F.R. SS104.3 (k) (3) (1990).
30. 442 U.S. 406-414 (1979).
31. Id. at 406.
32. Id. at 412-413.
--------------------
institution. [1]
Following the Davis decision the lower courts focused on a
very literal reading of the first quote in deciding cases for the
next 5 to 6 years. The essence of the logic applied was: a) the
institution has set its standards; b) the student/applicant can
not meet these standards because of the disability; c) therefore
the student/applicant is not otherwise qualified and hence not
protected by the Rehabilitation Act of 1973.
This interpretation did not recognize the need to evaluate
either the basis of the standard nor the impact of reasonable
accommodations. Both these evaluations seem implicit in the
second quote. This literal interpretation was corrected in 1985
by the Supreme Court's opinion in Alexander v. Choate. [2]
This case involves Medicaid recipients in Tennessee who
brought a class action suite which claimed that the new policies
had a disparate impact based on disability and hence discrimina-
tory under the Rehabilitation Act. The Supreme Court's Decision
in this case is significant to higher education because it clari-
fies both the legal definition of discrimination under the Reha-
bilitation Act and the Court's position in determining "otherwise
qualified".
The Supreme Court held that proof of disparate impact does
not in and of itself prove discrimination. Proof of discrimina-
tion or discriminatory effect rests in part on the purpose or
intent of the benefit offered. The Medicaid program did not
have as its purpose "adequate health care for all recipi-
ents" but a particular package of health care. This package was
neutrally distributed without regard to disability so it was not
discriminatory even though there was a disparate impact. This
aspect of the Court's opinion suggests that in determining if a
rule or standard is discriminatory, its purpose should be taken
into account. [3]
The second significant element in this case is the Court's
discussion of Southeastern Community College v. Davis. In its
opinion, the Supreme Court notes the literal interpretation of
Southeastern Community College v. Davis by the lower courts and
modifies it (emphasis added).
"Davis thus struck a balance between the statutory
rights of the handicapped to be integrated into society
and the legitimate interest of federal grantees in
preserving the integrity of their programs: while a
grantee need not be required to make 'fundamental' or
'substantial' modifications to accommodate the handi-
capped, it may be required to make 'reasonable' ones.
The balance struck in Davis requires that an
otherwise qualified handicapped individual must be
provided with meaningful access to the benefit that the
--------------------
1. Id. at 406-415.
2. 105 S.Ct. 712 (1985).
3. Id. at 415-418.
--------------------
grantee offers. The benefit itself, of course, cannot
be defined in a way that effectively denies otherwise
qualified handicapped individuals the meaningful access
to which they are entitled; to assure meaningful access,
reasonable accommodations in the grantee's program or
benefit may have to be made." [1]
In the above interpretation of its earlier opinion, the
Supreme Court has clearly set the definition of otherwise quali-
fied to include the ability to meet a standard or participate in
a program with reasonable modifications or accommodations.
The various strands of review in the Davis decision have be
picked up by the lower courts in a number of higher education
cases. In Doe v. New York University [37] a medical student was
denied readmission based on a history violent and self destruc-
tive behavior. The court held that the student's psychological
disorder was a disability but that her exclusion was not a viola-
tion of Section 504. The court's decision was based the appre-
ciable risk she presented to herself and others. [38]
Several cases stand as a balance to Doe and offer guidance
in examining potential risk and safety issues. In Pushkin v.
Regents of the University of Colorado [39] Dr. Pushkin was denied
admittance to a psychiatric residency program. Dr. Pushkin has
Multiple Sclerosis and as a result uses a wheelchair. A faculty
committee stated that Dr. Pushkin did not have the necessary
emotional stability to contend with patients' reactions to his
disability. The court held that decisions based on the possible
reactions of others, not on risk, violated the central intent of
Section 504. [40]
In 1987 the Supreme Court decided The School Board of Nassau
County, Florida v. Arline [41]. This case involved a elementary
school teacher, Arline, who was diagnosed as having tuberculosis
in 1957. It was in remission between 1957 and 1977. In
1977, March 1978 and November 1978 hospitalized for T.B.
She was suspended with pay for the remainder of the 1978-79 year.
After a hearing she was then discharged because of her continuing
Tuberculosis and the perceived threat that it presented to
others. [42]
--------------------
1. Id. at 720.
37. 666 F.2d. 761 (1981).
38. Id. at 777.
39. 658 F.2d. 1372 (1981).
40. Id. at 1389-1390.
41. 480 U.S. 273 (1987).
42. Id. at 276-275.
--------------------
There are two aspects to the Supreme Court's finding in this
case that are relevant to higher education. First, the Court
held that a person suffering from a contagious disease could be
considered "handicapped" under the Rehabilitation Act. [1] The
Court also provided guidelines for conducting an otherwise quali-
fied inquiry. These guidelines can be readily applied to the
academic context as can bee seen in the quote below (emphasis
added).
"The remaining question is whether Arline is other-
wise qualified for the job of elementary schoolteacher.
To answer this question in most cases, the district
court will need to conduct an individualized inquiry and
make appropriate findings of fact. Such an inquiry is
essential if 504 is to achieve its goal of protecting
handicapped individuals from deprivations based on
prejudice stereotypes, of unfounded fear, . . ." [2]
"In the employment context, an otherwise qualified
person is one who can perform 'the essential functions'
of the job in question. When a handicapped person is
not able to perform the essential functions of the job,
the court must also consider whether and 'reasonable
accommodations' by the employer would enable the handi-
capped person to perform those functions. Accommodation
is not reasonable if it either imposes 'undue financial
and administrative burdens' on a grantee, or requires a
'fundamental alteration' in the nature of the program." [3]
In its opinion, the Court is clearly requiring that deci-
sions be made on a case by case contextual basis. The Court
added this test when considering otherwise qualified in the
context of contagious disease: What is the nature of the risk
(transmission), the duration of the risk, severity of the risk
(third party harm), and probability of transmission and degree of
harm. These factors should be considered in light of reasonable
medical judgments of public health officials. [46] Chalk v. U.S.
Dist. Court of California [47] extended protections offered by the
Arline decision to individuals with AIDs.
Another line of reasoning that the courts have applied in
considering the otherwise qualified issues is can the student
meet the standards of the program. In these cases it is impor-
tant to remember that the institution must reach its decision
based on the applicants abilities, not assumptions concerning
--------------------
1. Id. at 280-286.
2. Id. at 287.
3. Id. at 287 note 16.
46. Id at 288.
47. 840 F.2d 701 (1988).
--------------------
their disability. [1] In Anderson v. University of Wisconsin [2] the
Seventh Circuit Court held that the law school could deny read-
mission to an alcoholic student.
The courts opinion was based on two critical elements. The
student was still using alcohol and the institution based its
decision on Anderson's academic prospects. The court noted in
this particular case that "Nothing in the record suggest that
the University's decision was based on stereotypes about alcoholism
as opposed to honest judgments about how Anderson had performed
in fact and could be expected to perform." [3] The court broadened
this statement and provided an important precedent by adding
"Just as Title VII of the Civil Rights Act of 1964 ensures only
equal treatment and not 'correct' decisions...the Rehabilitation
Act requires only stereotype-free assessment of the person's
abilities and prospects rather than a correct decision." [4]
In 1989 a student at the University of California filed
suit, Campbell A. Dinsmore v. Charles C. Pugh and the Regents of
the University of California. [5] The student, who has dyslexia,
requested extended time on tests. This request was documented
and approved by the Disabled Student Services Office. A mathe-
matics instructor claimed "there was no such thing as a learning
disability" and refused the accommodation on the grounds of
academic freedom. [6] Attempts by Disabled Student Services failed
to resolve the impasse and the student filed suit against both
the University and the instructor under Section 504. The settle-
ment directed the University of California to establish proce-
dures for faculty to question accommodations while
protecting students' rights and required monetary damages of the
instructor. The case has not fully resolved the issue who decides an
accommodation is reasonable, the instructor, disability services,
--------------------
1. See the discussion of Davis (note 36) and Pushkin (note 40)
above.
2. 841 F. 2d. 737 (1988).
3. Id. at 741.
4. Ibid.
5. Heyward, S. Provision of Academic Accommodations: Can
faculty members be held personally liabel for failure to accommo-
date disabled students? Disability Accommodation Digest, Vol.1,
No. 1 Pages 1 and 4 (1991). [The District Court suit was settled
out of court so there is no case reported. (Phone conversation
with Salome Heward 3/6/92.)]
6. Id. at 1.
--------------------
the provost, etc. [1] While Davis [2] ( as clarified by
Alexander v. Choate [3]) addressed admission issues, it seems likely
that the courts would apply similar reasoning to in class
accommodations. Instructors could reject recommended or documented
request for accommodations either because the fundamentally alter
the course or they present an undue burden. What ever grievance
procedures are developed to handle such impasses should satisfy due
process requirements and should either allow a decision before the
accommodation is needed or provide the student with the accommodation
until the decision is made.
In 1990 Eva N. v. Brock, [4] a that case involved a K through
12 student who was both blind and mentally retarded, was decided.
A student was denied admission to the Kentucky School for The
Blind. The school claimed it was not intended or equipped to
accommodate students with mental retardation. The federal appel-
late court held in favor of the school.
This case involved actions under both Section 504 and the
Education for All Handicapped Act [5]. The courts discussion of
the Section 504 claim is one relevant aspect to colleges
and universities. In deciding whether the accommodations re-
quested would require the school to make fundamental alterations
in its program, the court looked to the schools mission state-
ment. The appellate court's reasoning followed the Supreme Court
opinions in Davis [6] and Alexander v. Choate [7]. In this instance,
as in the two Supreme Court cases discussed above, the review of
the programs purpose was applied to establish the limits of
reasonable accommodations [8]. However this case potentially broad-
ens the Supreme Court's reasoning by applying this judicial
review to the school's mission statement as compared to the more
narrowly defined program mission in Davis [9]. This broader review
of institutional mission, combined with general education re-
quirements, would seem to be the appropriate level of review for
evaluating applicants to colleges and universities who have not
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1. Rothstein, L.F. Students, Staff and Faculty with Disabili-
ties: Current Issues for Colleges and Universities. 17 J.C.U.L.
473.
2. 442 U.S. 397.
3. 105 S.Ct. 712.
4. 741 F. Supp. 626 (1990).
5. Pub. L. 94-142 20 U.S.C. SS1401.
6. 442 U.S. 406
7. 105 S. Ct. 712
8. 741 F. Supp. 631-632.
9. 442 U.S. 397.
--------------------
declared a major and hence an intent to pursue a particular
academic program.
Wynne v. Tufts [1] provides a set of clear guidelines in exam-
ining the question of reasonable accommodations. In 1983 Wynne
was admitted to the medical school. In December 1984 Wynne
became aware of difficulties with multiple choice testing. He
discussed this with school officials in the spring. At the
end of his first year he had failed 8 of 15 classes. School policy
was that 5 failures were grounds for dismissal. The Dean decided
to permit Wynne to repeat the first year. [2]
During the summer, at the school's request and expense,
Wynne sought a neuropsychological evaluation. The medical evalua-
tors results indicated that Wynne's profile fit that of the LD
population. Wynne repeated the eight failed courses and audited
3 that he had marginally passed. He received some level of
counseling and tutoring as well as permission to tape lectures as
accommodations. [3]
This time Wynne passed all but two courses. As a further
accommodation, he was allowed to repeat those tests (multiple
choice format) but not to take them in an alternate format as he
requested. Wynne passed one but failed the other. He was then
dismissed. Wynne filed suite under the Rehabilitation Act based
on the school's refusal to modify the testing format.
The district court found for the university and Wynne ap-
pealed. The appellate court found that the school had not pre-
sented evidence that it had made any systematic search for accom-
modations in the testing format and that it's defense hinged on
the a stated opinion that multiple choice testing was fundamen-
tal, not a reasoned justification. The appellate court remanded
the case back to the district court with the cautions and guide-
lines quoted below (emphasis added):
"First, as we have noted there is a real obliga-
tion on the academic institution to seek suitable means
of reasonably accommodating a handicapped person and to
submit a factual record indicating that it conscien-
tiously carried out this statutory obligation. Second,
the Ewing formulation, hinging judicial override on a
'substantial departure from the accepted academic
norms,' is not necessarily a helpful test in assessing
whether professional judgment has been exercised in
exploring reasonable alternatives for accommodating a
handicapped person. We say this because such alterna-
tives may involve new approaches or devices quite beyond
--------------------
1. 932 F. 2d. 19 (1991).
2. Id. at 21.
3. Ibid.
--------------------
'accepted academic norms.'" [1]
". . .There is no mention of any consideration of possi-
ble alternatives, nor reference to any discussion of the
unique qualities of multiple choice examinations. There
is no indication of who took part in the decision or
when it was made. Were the simple conclusory averment
of the head of an institution to suffice, there would be
no way of ascertaining whether the institution had made
a professional effort to evaluate possible ways of
accommodating a handicapped student or had simply em-
braced what was most convenient for faculty and adminis-
tration." [2]
The appellate court's ruling provides a framework that
institutions can use in making accommodation decisions. If
called upon to justify a decision, an institution must be able to
document the rational relationship of the standard to a student's
academic program, what expertise was 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.
Tuft's took heed of the appellate court's guidelines when
they presented their case to the district court on remand. Based
on the additional evidence presented by Tufts the district court
agreed with Tufts that "... changing the format would
compromise the tests' effectiveness at gauging a future doctor's
ability to make subtle distinctions based on seemingly small but
significant differences in written information." [3] In a summary
judgment the district court fond that the university had "Clearly
evaluated alternatives and made a professional academic judgment in
deciding not to provide alternative tests." [4] The court found
that Wynne had been reasonably accommodated by being allowed to
repeat his first year classes, and by the school's provision of
notetakers, tutors and taped lectures. [5]
The final case presented on the reasonable
accommodation/otherwise qualified issue is Pandazides v. Virginia
Board of Education. [6] This case involved a college graduate
--------------------
1. Id. at 25-26.
2. Id. at 28.
3. Handicapped Requirements Handbook, Supplement No.161, page 1,
April 1992.
4. Ibid.
5. Ibid.
6. 946 F. 2d. 345 (1991).
--------------------
who had requested accommodations concerning the Communication
Skills Battery of the National Teachers Examination (NTE). She
asked the Virginia Board of Education to waive this requirement
for licensure (and hence, employment) on the basis of a learning
disability. She offered her performance evaluations while work-
ing in the classroom on probationary status as an alternative
measure. The state denied her the waiver. [1]
The district court, relying on a literal interpretation of
Southeastern Community College v. Davis, [73] found for the state in
a summary judgment. The appellate court negated the district
courts judgment for the state and remanded issue for a finding of
fact with guidance [74].
In the appellate court's decision to remand and the guidance
offered to the lower court closely parallel the Wynne v. Tufts. [75]
This indicates that the Rehabilitation Act is being interpreted
consistently across federal jurisdictions. The court's guidance
to the lower court provides us with additional structure for
exploring the otherwise qualified/fundamental standard question:
". . . otherwise qualified may be understood more in
terms of the job rather than an arbitrary set of re-
quirements. Therefore, the trial court must do more
than simply determine whether or not Pandazides meets
all the stipulated requirements of the Board, but look
to what the position she seeks actually requires." [76]
. . . Accordingly, defendants cannot merely mechanically
invoke any set of requirements and pronounce the handi-
capped applicant or prospective employee not otherwise
qualified. The district court must look behind the
qualifications. To do otherwise reduces the term
'otherwise qualified' and any arbitrary set of require-
ments to a tautology." [77]
In the academic context, the Pandazides decision suggests
that evaluating accommodations the institution should look to the
ultimate goal of the program and what it actually requires. In
refusing to accommodate a particular standard or requirement
institutions must rely on more than tradition or citing the
standard as common practice; they must demonstrate the rational
--------------------
1. Id. at 347-348.
73. 442 U.S. 397.
74. 946 F. 2d. 350.
75. 932 F. 2d. 19.
76. 946 F.2d. 349.
77. Ibid.
--------------------
and essential relationship between a requirement and the pro-
gram's goal. Additionally, they must show the lack of reasonable
alternatives for achieving this goal.
The next two cases to be discussed centered on a slightly
different set of issues. In Nathanson v. Medical College of
Pennsylvania [1] there was no contention about jurisdiction, that
Nathanson had a disability due to a back injury, or that she was
otherwise qualified as a medical student. [2] The accommodation in
question, a high backed chair with a high table as a writing
surface, clearly did not present an undue burden on the institu-
tion. [3]
At issue in this case was whether the plaintiff had given
the institution notice and if so was it sufficient to require
accommodation. [4] The regulations under Section 504 forbid pread-
mission inquiries except as part of an effort to overcome past
discrimination [5]. The regulations provide for confidential in-
quiries after acceptance. [6] If students do not make their
disability known the institution is not obligated to provide
accommodations.
This case, in part, addresses to whom and in what manner
students must identify their needs to initiate protection under
Section 504. The regulations require the designation of at least
on employee to coordinate compliance efforts and notice of non-
discrimination in recruitment. [7] In the case under discussion
there is no mention of any notice provided by or policy concern-
ing requesting accommodations. It must be assumed that the
Institutions policies are silent on this matter and that notice,
if any, was a minimal disclaimer on the application and recruit-
ment materials (i.e. We do not discriminate on the basis of ...).
The plaintiff contended that several interviews with the
dean served as sufficient notification. The facts collected by
the district court, prior to issuing summary judgment, were
unclear as to how clearly the plaintiff expressed her needs. It
was clear that the plaintiff expressed her inability to continue
--------------------
1. 926 F. 2d. 1368 (1991).
2. Id at 1380.
3. Id. at 1371.
4. Id. at 1382. (a second count was filed in this case claiming
Tortious interference with existing and prospective contracts.
This aspect of the case is not germane to access issues.)
5. 34 C.F.R. SS104.42 (4) (1990). Such inquiries must be both
voluntary and confidential.
6. Ibid.
7. 34 C.F.R. SS104.7 and SS104.8 (1990).
--------------------
due to the seating. [1] The district court found in favor of the
college and the plaintiff appealed. The appellate court found
that there were issues of fact left to be determined and reversed
the grant of summary judgment and remanded the case. [2]
In a recent article Maureen McCarthy reported a case from
the Oklahoma state court that is currently on appeal. [87] The case
involves a student who had never identified himself to the
schools disability support services and was eventually suspended
for academic reasons. Prior to the suspension, the student's
advisor noted his academic difficulties and suggested that it
might be a learning disability but did not advise the student
about how to request accommodations. Again, institutional policy
was silent on this matter.
The student had been diagnosed as learning disabled in third
grade, but his parents did not inform him of this fact until
after the college suspension. The student requested reinstatement
with accommodations after the dismissal. The reinstatement was
denied and the student filed suit. [88]
Based on the advisor's comments the court found that the
institution was obligated to make the request process known to
the student. Failure to do so resulted in benign discrimination.
The court ordered the student reinstated, reconsideration of his
earlier grades, and access to accommodations. The case is cur-
rently on appeal. [89]
Regardless of the ultimate outcomes of the remand or appeals
in these two cases, They clearly put institutions on notice to
develop and insure the distribution of a reasonable policy for
requesting accommodations. Unfortunately, they do not provide
any guidance in shaping such policies. The regulations [90] provide
only minimal guidance by requiring that each institution desig-
nate at least one person to coordinate compliance efforts and
adopt grievance procedures that incorporate appropriate due
process.
The last two cases to be discussed focus on the issue of who
bears the financial burden for accommodations. The first case,
University of Texas v. Camenisch [91], was appealed to the Supreme
--------------------
1. 926 F. 2d. 1381-1383.
2. Id. at 1392.
87. McCarthy, M. Appropriate Academic Accommodations: a Look at
Oklahoma State University v. Pat Smith. Latest Developments,
Association of Handicapped Student Service Programs in Postsec-
ondary Education, Winter 1992, Pages 2-3.
88. Ibid.
89. Ibid.
90. 34 C.F.R. SS104.7 (1990).
91. 451 U.S. 390.
--------------------
Court. The appeal questioned the injunctive relief.
Camenisch, a deaf graduate student, requested that the
university to pay for a sign interpreter for his courses. The
university refused to pay based on a financial needs test.
Camenisch filed for a preliminary injunction and received it.
The injunction was affirmed by the appellate court. Camenisch
posted bond pending a decision. In the interim Camenisch graduat-
ed and the appeal of the injunction reached the Supreme Court. [1]
The Supreme Court found that since the conditions of the
injunction had been irrevocably meet that this issue was moot and
they remanded the issue of who should bay for the interpreter
back to the lower court. [2] In his concurring opinion Chief Jus-
tice Burger notes "The trial court must, amongst other things,
decide whether the federal regulations at issue, which go
beyond the carefully worded nondiscrimination provision of SS504,
exceed the powers of the Secretary under SS504." [3]
The above case did not answer the question of who should
pay, but in 1990 the question was answered in U.S. of America v.
The University of Alabama [4]. Based on an unresolved Office of
Civil Rights complaint under Section 504, a suit was filed
against the University of Alabama (UAB) on four issues; a finan-
cial needs test in requesting auxiliary aids, the refusal extend
auxiliary aids and accommodations to non-credit/non-degree stu-
dents, [5] the inaccessibility of the transportation system, and
that a separate lab and restricted hours of access to the pool
were discriminatory. The appellate court held against UAB on all
four counts. [6]
The courts ruling on the transportation system, the re-
stricted lab hours and the restricted pool hours rested on two
elements. The services did not provide equal access nor where
they available in the most integrated setting possible. [7]
The two most significant aspects of the court's decision
are: 1) all students (part time, non-degree, in non-credit
courses, etc.) are protected by the Rehabilitation Act; 2) the
ultimate financial burden for auxiliary aids is the institution's.
The court said that the institution may work with a student to
seek funding through state vocational rehabilitation
--------------------
1. Id. at 390.
2. Id. 1385.
3. Id. at 1836.
4. 908 F. 2d. 740 (1990).
5. This aspect of the case was discussed as part of the juris-
diction question at note 21.
6. 908 F. 2d. 752.
7. Id. 750-753.
--------------------
services and/or private sources but if those funds are not avail-
able, the institution must assume the cost for accommodations or
auxiliary aids. [1] This obligation is limited by two statements
in the regulations; auxiliary aids for personal use and undue
burden. The regulations under Section 504 provide the following
guidelines for these two limits:
"(2) Auxiliary aids may include taped texts, interpret-
ers or other effective methods of making orally deliv-
ered materials available to students with hearing im-
pairments, 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." [2] (emphasis added)
The second limit on this obligation is undue hardship. This
review was unable to locate any case law defining undue hardship,
the following regulatory guidelines exist:
"(c) In determining pursuant to paragraph (a) of this
section whether an accommodation would impose an undue
hardship on the operation of a recipient's program
factors to be considered include:
(1) The overall size of the recipient's program with
respect to number of employees, number and type of
facilities, and size of budget;
(2) The type of recipient's operation, including the
composition and structure of the recipients work-
force; and
(3) The nature and cost of the accommodation
needed." [3]
The cases cited above have primarily focused on establishing
the limits of reasonable accommodation in the context of either
admission and meeting academic/course requirements. This is a
reflection of the body of case law and not the full scope of
impermissible discrimination described by the regulations promul-
gated under Section 504. The regulations that specifically
apply to higher education [102] address admissions and recruitment;
general treatment of students; academic adjustments; housing;
financial and employment assistance to students; and nonacademic
services.
--------------------
1. Id at 746-750.
2. 34 C.F.R. SS104.44 (d) (2) (1990).
3. Id. at SS104.12.
102. 34 C.F.R. SS104 (E) (1990).
--------------------
One reason that the cases to not represent the full range of
impermissible discrimination may be the clarity and the specific-
ity of the regulations. Another reason is that admissions and
meeting academic requirements are central to higher education.
Finally, it is likely that other issues have been resolved
through administrative proceedings of the Office of Civil
Rights [1].
There are four principles in the regulations that are of
particular importance. The first is the otherwise
qualified/fundamental standard question that has been the primary
focus of the courts. The remaining three are most integrated
setting, programmatic access, and reasonable self help.
The regulations require that when a range of
accommodations are possible the choice should weigh in favor of
options that produce the least separation or isolation for the
students with disabilities. It is not considered appropriate
to establish separate sections, residences, etc. that limits or
isolates the students. [2] Within the confines of the most
integrated setting institutions, not the student, may choose
between equally effective accommodations.
The concept of programmatic access rests on the following
regulatory language: "Programs, when viewed as a whole, provide
an equal opportunity for the participation of qualified handi-
capped persons." [3] Campuses do not have to be barrier free. If a
building in not accessible and classes can be rescheduled as
needed, then as a whole you have provided access. If not every
residence hall is accessible, but those that are provide a com-
parable range of housing choices, then your housing is as a whole
accessible.
The final principle is that of reasonable self help. This
concept rests on the on the fact that students must self identify
and request accommodations [4] and on the opinion in U.S. v. Ala-
bama [5] concerning student participation in the search for outside
funding sources. This principle assumes that the student will
initiate the process and can be expected to play an active part
in identifying and arranging accommodations.
On July 26, 1990 Public Law 101-336, [108] the Americans with
--------------------
1. The author could find no central reporting system for Office
of Civil Rights Proceedings. Information may be obtained through
a request under the Freedom of Information Act but this was
beyond the time frame allowed for this review.
2. 34 C.F.R. SS104.43 (d) (1990). 908 F. 2d. 740.
3. Id. at SS104.43.
4. 34 C.F.R. SS104.42 (1990).
5. 908 F. 2d. 740.
108. 42 U.S.C. SS791 (1991).
--------------------
Disabilities Act of 1990 (ADA) was passed by the Congress. The
ADA prohibits discrimination against people with disabilities in
the areas of private employment, public accommodations and serv-
ices, transportation, and telecommunications. Both public and
private educational settings are covered under the Public accom-
modations section of the ADA. [1]
In its application to curricular and extra curricular pro-
grams in higher education, the ADA borrows its framework from
Section 504 and demands virtually the same standard for compli-
ance. This means that the direct impact of ADA for higher educa-
tion is minimal. However, it is expected that as the ADA is
implemented it will increase the college applicant pool both
because of the expanding career opportunities for people with
disabilities and because of the increased visibility in the
media. This increasing applicant pool will not only be more
aware of its opportunities, but also its civil rights. [2]
Additionally, many states have enacted legislation following
the principles established at the federal level. According to
the federal statutes, state regulations take precedence when they
are more stringent [3]. The guiding principle in evaluating compli-
ance is compliance with the most demanding or specific regula-
tions.
CONCLUSIONS
Section 504 of the Rehabilitation act as amended by the
Civil Rights Restoration Act covers all programs at any institu-
tion that receives federal funds. This includes student finan-
cial aid as well as more direct funding. If there are any insti-
tutions that actually receive none of these federal monies, they
are covered under the ADA. The ADA requires virtually the same
level of accommodation as Section 504.
An individual with a disability is not automatically enti-
tled to any specific accommodation. In order for an accommoda-
tion to be required the student must make his or her needs known.
It must be clear that a physical arrangement, particular require-
ment, criterion, method of instruction, or method of evaluation
interacts with the individuals disability in a disproportionately
adverse fashion. If there is an adverse interaction, then the
individual is entitled to accommodation unless accommodation
would fundamentally alter the student's program or present the
institution with an undue burden. If more than one equally
effective accommodation exists, institutions have the right to
choose among them. Institutional choice is limited by the need
to provide accommodations in the most integrated setting possi-
ble.
Accommodations for physical access are relatively straight
--------------------
1. 18 J.C.U.L. 389 (1990).
2. Id at 415-417.
3. Pub. L. No. 93-112, 29 U.S.C. SS791 (1991).
--------------------
forward. The individual's needs are usually apparent and the
appropriate alterations, relocations, or adaptive equipment is
generally clear. Defining the limits of reasonable accommodation
in the academic arena is more complex task. In attempting this
task, it is important to remember that the laws are designed to
insure an equal opportunity for individuals with disabilities.
This includes an equal opportunity to have their skills, knowl-
edge, and abilities honestly and accurately evaluated. The law
is only meant to guarantee that abilities, not disabilities, are
the basis for evaluation.
In an academic context, there are two levels of accommoda-
tion to consider; within a course and requirements for program
completion (i.e. substituting or waiving specific courses). The
guiding principles in evaluating the reasonableness of accommoda-
tions is do they represent a fundamental alteration in the course
or program. Financial, logistic, and administrative considera-
tions do not enter into the definition of reasonableness but may
exempt an accommodation based on undue hardship.
Within a course, testing and evaluation formats, instruc-
tional delivery systems and methods, and specific course activi-
ties are subject to accommodation. Not subject to accommodation
within a course are alterations in the specific skills, knowl-
edge, and objectives upon which the course is based. In claiming
a fundamental standard, institutions must be able to demonstrate
that they have made a good faith search for alternatives and
arrived at the conclusion through a reasoned analysis.
If a student with a disability can not successfully complete
course requirements (or any other graduation requirement i.e.
time limits) the next consideration is whether or not the course
or requirement represents an essential or fundamental aspect of
the program. To be essential to the program a course or require-
ment must represent skills, knowledge or abilities that are
critical to the programs stated goals and purposes. Again, in
denying an accommodation a good faith effort and reasoned analy-
sis are required.
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