Disability Law and Your Classroom
Yes, you should make appropriate accommodations for disabled students. But before you take anyone's word for it, you owe it to yourself and your students to learn the current state of the law.
By David Cope
Out of the blue, the disability services office at your university directs you to give a student in your class who has a particular kind of disability twice as many exams as the other students, each covering half the material of your usual exams. Or perhaps you are told to provide a separate biology lab, with individualized, one-on-one instruction, for a learning-disabled student. Or maybe you must furnish a student who has a mental disability with a written copy of all information you present in class that is not included in the textbook (an audio- or videotape recording of your classroom lecture is not an acceptable alternative, even though the student has no hearing or vision impairment).
When you question the legitimacy of these accommodations, the director of the disability services office tells you that they are reasonable and required in order to comply with the Americans with Disabilities Act (ADA). Suppose the policy of your university empowers this director, who has no background in law or medicine, to make decisions about what constitutes a disability and what accommodations are required by it without consulting any other university personnel.
Providing reasonable academic adjustments for students who qualify as disabled under the ADA should, of course, be a priority for all university professors. Eligible students with documented disabilities deserve conditions that make it possible for them to do their best work. A professor should not, however, have to accept a university official’s interpretation of federal disability law if it is inconsistent with the rulings of federal judges. Recent rulings have sharply limited the situations in which the ADA can now be applied. Understanding the consequences of these rulings is essential for all university personnel who make decisions about disability accommodations.
Disability Defined
Most university faculty members and administrators understand their legal obligation under the ADA to ensure that disabled students enrolled at their campuses have full access to the services and benefits offered by their programs. The protection of federal law for qualified individuals with disabilities was first provided by Section 504 of the Rehabilitation Act of 1973 (applicable to institutions that receive federal funds) and later extended to all educational institutions by the ADA, adopted in 1991. These statutes require universities to make reasonable and necessary modifications to rules, policies, or practices to prevent discrimination against students based upon disability.
Such modifications (formally called academic adjustments) may demand, for example, that a faculty member provide a student with extra time for completing assignments and for taking exams. They may also obligate a university to allow a student to substitute an alternative course for a required one that would impose an unfair burden on the disabled student.
The most complex issue in applying disability law on university campuses is determining who qualifies as a person with a disability. Both Section 504 and the ADA define a disability as a physical or mental impairment that “substantially limits a major life activity.” The U.S. Supreme Court recently ruled that these terms “need to be interpreted strictly to create a demanding standard for qualifying as disabled.” In 2002, in Toyota v. Williams, the Court held that the litigant, Ella Williams, was not disabled in the major life activity of performing manual tasks despite severe neuromuscular impairments that rendered her unable to perform manual work of any kind at a Toyota manufacturing facility. The Court ruled in a unanimous decision that a disability must “prevent or severely restrict the individual from doing activities that are of central importance to most people’s daily lives.” Since Williams was still able, despite her impairment, to perform such routine manual activities as brushing her teeth, washing her face, and bathing, the Court held in this landmark ruling that her impairment, although considerable, did not constitute a disability within the meaning of the ADA. She was therefore not eligible to receive accommodations from her employer under the provisions of the ADA.
The Supreme Court made it clear in its analysis of the Toyota case that the demanding standard it established for a disability in performing manual tasks must be applied in determining a disability in every major life activity. This ruling is now cited as precedent in ADA cases decided in all of the circuits of the U.S. Court of Appeals. In 2003, for example, the Eighth Circuit wrote in Fenney v. Dakota, “These terms (used in the Toyota case) are not just ones involved in the major life activity of performing manual tasks, but are ones which are necessary in every determination (of disability).”
The Supreme Court also stated in the Toyota case that the standard for disability in the context of employment applies to all the other contexts in which a disability could be claimed, including educational services. The U.S. Department of Education has affirmed that the precedent set in the Toyota case is binding on educational institutions when they implement Section 504 or the ADA.
Demanding Threshold
University faculty and administrators should take special note of the 2004 ruling of the Ninth Circuit in Wong v. Regents of the University of California. The court applied the Toyota standard to determine whether a learning disability, as diagnosed by a clinical professional, met the demanding legal standard for a disability under the ADA. In rejecting the disability claim of Andrew H. K. Wong, the court ruled that the clinical diagnosis of his disability failed to establish that “his impairment substantially limits his ability to learn as a whole, for purposes of daily living, as compared to most people.” The court also rejected the diagnosis of a reading disability, noting that “Wong has not established that he was unable to read newspapers, government forms, street signs, or the like.” It further noted that he failed to prove that “he was substantially limited in his ability to read for purposes of daily living, or as compared to what is important in the daily life of most people. That is the appropriate standard.”
This ruling makes clear that the federal courts are now limiting the protection of the ADA to those with impairments that severely restrict them from performing the common everyday activities of the average person. This demanding threshold for qualifying as disabled poses a particular challenge for a college student in establishing a learning or cognitive disability as a matter of law, because the learning activities of a university student are not those performed by most people in their daily lives.
The federal courts have also issued many rulings that limit the legal obligation of universities to provide accommodations requested by students with disabilities, beginning in 1979 with the U.S. Supreme Court decision in Southeastern Community College v. Davis. Since then, the U.S. courts of appeals have upheld the right of a university to deny requested accommodations if university officials come to a “rationally justifiable conclusion” that such modifications would either lower academic standards or require substantial program alterations, as the U.S. Court of Appeals for the First Circuit ruled in 1992 in Wynne v. Tufts University School of Medicine. More recently, the Eighth Circuit held in Amir v. St. Louis University (1999) and Stern v. University of Osteopathic Medicine and Health Services (2000) that accommodations can be denied if they are not logically related to the functional aspects of the disability or if they simply make a test easier for a student with a disability.
Faculty members want to provide legally necessary modifications for their disabled students, but they also want to treat all students fairly, especially when they evaluate student performance. Sometimes, then, we need to exercise careful judgment when responding to a request from a student for accommodations based on a claim of disability.
We usually rely on the expertise of the disability services office on our campuses for guidance in determining appropriate modifications for a student with a disability. Typically, that office ensures that the student has provided the university with documentation from a medical or clinical professional that diagnoses the student’s disability and describes the functional aspects of the disability. This documentation is necessary to justify the need for academic adjustments for those who have “hidden disabilities” arising from cognitive disorders or from internal medical impairments that adversely affect the academic performance of the student.
Not Necessarily Confidential
Although some faculty members and administrators believe that this medical or clinical information is “confidential” according to federal law, it is not. Neither Section 504 nor the ADA contains applicable provisions regarding confidentiality, according to the Program Legal Group of the U.S. Department of Education’s Office for Civil Rights, the federal agency that enforces Section 504 and the ADA on university campuses.
Medical or clinical documentation of a disability is, however, protected by the Family Educational Rights and Privacy Act (FERPA), which is enforced by the U.S. Department of Education’s Family Policy Compliance Office. According to the office’s director, such documentation is considered part of a student’s education record; FERPA permits a university to share such information with a faculty member for the purpose of assisting the faculty member in determining what academic modifications are appropriate for the student.
So how is a faculty member to operate in light of the information provided in this article? First, faculty should insist that decisions about whether a student meets the demanding eligibility requirement for receiving academic modification be made only by university personnel who understand and apply the current legal standard for disability.
Furthermore, decisions about what accommodations are reasonable and necessary for a student with a confirmed disability should reflect the rulings of federal courts of appeal or the Supreme Court. Finally, I recommend that faculty make sure that their institutions permit faculty members to appeal decisions made by the disability services office about accommodations and to review documentation of students’ disabilities. For faculty members to receive due process in such matters, they must have access to the information used by the disability services office in determining appropriate accommodations for the student. State-supported institutions, of course, are subject to the due process clause of the Fourteenth Amendment to the U.S. Constitution.
Faculty members want to protect their own interests and to be free to decide how they will teach—but we also want to be fair to students with legitimate, documented disabilities. To minimize the potential conflict of interest between the academic freedom of faculty members to determine classroom standards and the requirements imposed on them by the disability services offices of their universities, it would serve us all well to learn the law. A faculty member who is conversant with recent case law limiting the applicability of the ADA will be able to make the best choices for a class as a whole as well as for the disabled student.
David Cope is assistant professor of mathematics at the University of North Alabama.
|