Legal Perspectives on Accommodating Students with Disabilities in Higher Education

1. Legal Perspectives on Accommodating Students with Disabilities in Higher Education East Tennessee State University March 25, 2003

2. Paul Grossman, writing about his brother’s decision to persevere through law school while in the last stages of terminal cancer of the spine: “…as his body gradually lost the physical indicia of life – eating, sex and mobility – he remained a human being, affirmed by his ability to think, learn and persuade.” Paul D. Grossman, Making Accommodations: The Legal World of Students with Disabilities, 87 Academe: Bulletin of the American Association of University Professors, 41-46 (November-December 2001).

3. Topics to cover: • Who we are and what we do • Why we need civil rights laws to protect people with disabilities • Overview of the major federal disability laws • How the laws apply in a Higher Education context • Making reasonable accommodations • Filing grievances, Administrative Complaints & lawsuits • Students, Professors and Disability Services working together

4. Tennessee Protection & Advocacy • Federally mandated “watchdog” agency monitoring individual state compliance with federal disability rights laws including: • Americans with Disabilities Act • Rehabilitation Act • Fair Housing Act • Individuals with Disabilities Education Act • Civil Rights of Institutionalized Persons Act • Architectural Barriers Act

5. SERVICES WE PROVIDE: • Advocates, Attorneys and Outreach personnel in three offices (Knoxville, Memphis and Nashville) provide the following FREE services: • Education, Outreach, and Program Evaluation services to government agencies, schools, and businesses • Systemic Advocacy to address deficits in state systems and programs • Direct Advocacy and mediation on behalf of qualifying individuals • Formal Legal Representation in select cases

6. Services: Individual Legal Advocacy Services and Formal Legal Representation • New cases must fit into our annually mandated and approved Priorities, Goals and Objectives (posted on our website www.tpainc.org) • People with issues concerning their legal rights as a disabled person can call our Intake unit to determine if they qualify for our services under any of our six different grant programs (PADD, PAIMI, PAIR, PAAT, PABSS & CAP) • Information and Referral services are provided to all callers • Self-Advocacy resources provided to all callers

7. Services: Educational Outreach & Systemic Advocacy • Raising statewide awareness of Disability Rights Laws • Assisting public and private entities in understanding and interpreting complex federal statutes and case law • Providing training on requirements for compliance with Federal Disability Rights law • Partnering with other agencies to facilitate unified action on behalf of individuals with disabilities in Tennessee • Advocating for systems change to enhance and protect Disability Rights in Tennessee

8. Why Do We Need the Federal Disability Laws? • Congressional findings: • 43,000,000 Americans have one or more physical or mental disabilities, the number is increasing daily. • Historically, society has isolated and segregated individuals with disabilities • Prior to the ADA, people who were discriminated against on the basis of disability often had no legal recourse to address it • Discrimination includes: intentional exclusion, architectural or communication barriers, exclusionary qualification standards and criteria, relegation to lesser services

9. Disability Laws Applicable to Higher Education • Americans with Disabilities Act (broad-reaching anti-discrimination statute) • (NOT an “entitlement” law) • Rehabilitation Act of 1973 Section 504(education programs, when viewed in entirety, must be accessible) - Section 508 (internet accessibility)

10. ADA applies to all post-secondary educational programs even if such programs do NOT receive federal financial assistance ADA may not apply to opportunities offered by religious schools that require acceptance of religious beliefs as a qualification of admission. Rehabilitation Act applies to all post-secondary educational programs that receive federal financial assistance How the laws apply:

11. The Americans with Disabilities Act • The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. The act also applies to the U.S. Congress. • Title I: Employment • Title II: State & Local Government services • Title III: Public accommodations operated by private businesses • Title IV: Telecommunications

12. Who is covered by the ADA? To be protected by ADA, one must have a disability or have a relationship or association with an individual with a disability. ADA does not specifically name all the impairments that are covered. Definitely covered: mobility, sensory, or mental impairments that substantially limits one or more major life activities

13. Rehabilitation Act §504 • Provides that: • A college or university is required to make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. 34 C.F.R. § 104.44 [emphasis added]

14. A “qualified” person with a disability is legally defined as: A person with a physical or mental impairment that substantially limits one or more major life activities; OR A person who has a record or history of such an impairment; OR A person who is regarded as having such an impairment AND: Must meet the academic and technical standards required for admission or participation in the educational program or activity.

15. Student’s evaluation indicates that he has a learning disability with problems in reading, spelling, written language, organizational skills and auditory memory, and needs extra processing time and oral presentation of information, the student is a person with a disability, because he is substantially limited in a major life activity, namely, learning. A student with ADHD, with documentation indicating that she has limitations in attention and behavior that present clinically significant levels of disorganization and distractibility has a covered disability which substantially limits major life function, the ability to learn. Some Examples of “qualification”

16. Qualification continued: • Recovered alcoholics or drug abusers are persons with a disability. Persons currently abusing drugs or alcohol may be persons with disabilities under Section 504 but are not considered disabled under the ADA. Under both laws, a person may not be qualified for an educational program because of adverse behavior that sometimes accompanies alcoholism and drug addiction. • Generally, persons with contagious diseases who are otherwise qualified to participate in federally assisted programs and activities cannot be denied equal access to services.

17. ACADEMIC & PROFESSIONAL STANDARDS ARE PRESERVED IN THE LAW: A person is not a “qualified” person with a disability if s/he requires significant alterations in the core educational program in order to participate effectively or achieve the purpose of the program.

18. FAIR TREATMENT: • STUDENTS ARE STILL REQUIRED TO MEET ESSENTIAL, ACADEMIC & TECHNICAL STANDARDS OF COLLEGE OR UNIVERSITY WITH OR WITHOUT REASONABLE ACCOMODATION BUT • Reasonable accommodations must be provided to qualified students who identify themselves as such

19. Reasonable Accommodation Reasonable accommodations must be made if they would allow a qualified person with disabilities to effectively participate in an educational program or service.

20. “fundamentally altering” programs or instruction is not required Academic standards (for instance, minimum GPA requirements) must be upheld Technical standards must be upheld (applicants to surgical programs must have fine motor dexterity, for example) If a person with a disability manifests a “direct threat” to the health and safety of themselves or others, they may be excluded Essential, Academic & Technical Standards clarified:

21. Determinations regarding “necessary” and “essential” requirements need to be made on a case‑by‑case basis: • Determinations by the college as to the existence of a disability and the accommodations required are to be individualized. OCR Letter, Anne Arundel Community College (MD), 13 NDLR ¶ 62 (January 6, 1998) • Question of whether a student has provided documentation sufficient to evidence the existence of a disability requiring an academic adjustment ... must be decided on a case‑by‑case basis OCR Letter, Hood College (MD), 12 NDLR ¶ 127 (September 29, 1997)

22. OCR on Difficulty Assessing Impact of Learning Disability: • OCR recognizes that “[a]ssessment of learning disabilities in this context is complex in at least three ways: not all persons with this diagnostic label have the same type of impairment; the degree of impairment will vary; and the available diagnostic tools are not always sufficiently sensitive to predict definitively how the impairment will manifest itself in a particular skill area ... .” OCR Letter, Mt. San Antonio College, OCR Docket Number 09‑96‑2151 (May 30, 1997).

23. Facts need analysis irrespective of persuasion by student: • Note, too, that the “ability of a disabled student services office to persuade an instructor or academic department to provide an adjustment/accommodation should not be the determining factor in whether the student is accorded an accommodation to which she or he is entitled.” OCR Letter, Mt. San Antonio College, OCR Docket Number 09‑96‑2151 (May 30, 1997)

24. "try and see if you can pass it" approach is dangerous: • OCR states that “[t]his approach raises a number of concerns under Section 504 and Title II. Under most circumstances, it is discriminatory to require the student to consume his or her time and jeopardize his or her grade point average taking a particular ... course when the person qualified to administer and/or interpret the psychometric data has determined that the student, due to his or her disability, is highly unlikely to pass the course with any of the accommodations the institution can identify and/or deliver.” OCR Letter, Mt. San Antonio College, OCR Docket Number 09‑96‑2151 (May 30, 1997).

25. Course substitution or waiver is better (if necessary): • Course substitutions should be considered unless the recipient can demonstrate that the course is essential to the program of study being pursued by the student, and that allowing a substitution would, therefore, involve a fundamental alteration of its academic program. 28 C.F.R. § 35.130(b)(7). If a course substitution is called for, but no appropriate course for substitution is available, a waiver should be considered as an option. OCR Letter, Mt. San Antonio College, OCR Docket Number 09‑96‑2151 (May 30, 1997).

26. Reasonable Accommodations May Include: • A change in an educational program (i.e., allowing a student with a severe hearing loss to substitute a required course such as music with another course even though music is a requirement for graduation), so long as it does not alter the program's fundamental nature; • Structural modifications (i.e., ramps, wide doorways, accessible bathrooms); • Providing modified equipment (i.e., Braille keyboard on a word processor); and/or • Providing aides such as interpreters or readers.

27. What isn’t considered “reasonable”? • Accommodation must not require fundamental alteration in the nature of an academic program • Requested accommodations that could be effectively provided at a lower cost • Accommodations that would require “undue” administrative or economic burden

28. So What Accommodations Are Required? • Because every case is different, each request MUST be considered in light of particular circumstances • No definitive statement can be made about what is and is not required by the law • When evaluating, keep in mind the overall objective of the law is to provide “equal access” not unfair advantage

29. Accommodation guidelines: • Paul Grossman chief regional attorney of the San Francisco office of the U.S. Department of Education’s Office for Civil Rights and adjunct professor of disability law at the University of California’s Hastings College of Law gives the following advice: (Offered as a guideline in his private capacity. Neither of his employers reviewed or approved the text.)

30. Likely to be sustained: • Time and a half to double time on examinations • Moderately reduced course loads • Extra time to complete course loads to the extent curricular continuity is not impaired • Limited leaves of absence for medical treatment and recovery • Registration assistance • Assistance in applying for financial aid • Classroom modifications (preferential seating, taping, and note-taking assistance • Priority in housing for students who need a single or large room • Priority in parking for students with mobility impairments and certain psychological disabilities

31. Less Likely to be sustained, but depends on circumstances: • More than double time on examinations • Long-term leaves of absence • Course substitution or waiver • Reduced participation and attendance in classroom

32. Unlikely to be sustained: • Unlimited time for examinations • Unlimited time for degree completion • Unlimited leaves of absence • Permission to entirely avoid attendance expectations applied to students in general • Reassignment to another teacher • Provision of examinations or instructional services off-campus except when generally provided to students • Individualized instruction or tutoring except when commonly provided to students • Restructuring of the curriculum to address the student’s individual learning style

33. A special note about fairness for all students in testing: • Providing accommodations of extra time allows you to measure what students have learned, instead of measuring the impact of their disability • Research indicates that having extra time does not have a significant impact on the performance of students without learning disabilities. • Tests should measure mastery of material, not speed, unless speed is a professional requirement • Unilateral testing by disability services office may be considered segregation /discriminatory treatment • best practice = testing accommodations on an individualized basis between professors and students

34. Student must: Identify themselves as person with a disability Provide necessary documentation Request accommodation Work with Disability Services Office and Professors to implement modification Student vs. School Responsibility Professor/School must: • Work with Disability Services office to determine, reasonable modifications that do not compromise the essential, academic or technical standards of the curriculum • Pay for accommodations but not those of a personal nature (like home study aids)

35. Nuts and Bolts for Professors: • Read syllabus statement at beginning of class (inviting students to request accommodations) • IF student approaches you with certification letter, meet to discuss strategies for accommodation (meeting does NOT have to be outside normal office hours) • Determine needs / make reasonable accommodations on an ongoing basis • Call Disability Services for support, clarifying needs, and resolving disputes

36. High School v.s. Post-SecondaryImpact of Laws Compared

37. Changing Roles from High School to College: Taking Responsibility

38. Accommodation Examples:Low Vision • Large print lab handouts, lab signs, equipment labels • TV monitor connected to microscope to enlarge images • Class assignments made available in electronic format • Computer equipped to enlarge screen and images

39. Accommodation Examples:Blindness • Audio or Brailled lecture notes, handouts and texts • Raised line drawings and tactile models • Braille signs and equipment labels • Adaptive lab equipment (talking thermometers, probes, timers) • Class assignments made available electronically • Computer with optical character reader, voice output, Braille screen display and printer output

40. Accommodation Examples:Hearing Impairment • Interpreter, “real time” captions, FM system, note taker • Face turned toward student when speaking; use of visual aids • Written assignments, lab instructions, demonstration summaries • Visual warning system for lab emergencies • Use of electronic mail for class and private discussions

41. Accommodation Examples:Learning Disability • Note takers and/or audiotape class sessions • Extra exam time, alternative testing arrangements • Visual, aural and tactile demonstrations incorporated into instruction • Computer with voice output, spell and grammar check

42. Accommodation Examples:Mobility Impairment • Note takers/lab assistants; group lab assignments • Classrooms, labs, field trips in accessible locations only • Adjustable tables, lab equipment within reach • Class assignments in electronic format • Computer equipped with special input device (e.g. voice, morse code, alternative keyboard)

43. Accommodation Examples:Health Impairment • Note takers • Flexible attendance requirements and extra exam time • Assignments in electronic format; use of e-mail to facilitate communication

44. (1) Admission and recruitment (2) Academics (3) Housing (4) Research (5) Financial aid (6) Counseling (7) Physical education (8) Athletics (9) Transportation (10) Employment assistance Law applies to provision of all secondary education programs, services and processes including:

45. Discrimination in Admissions is Prohibited. • Admissions tests must be given in accessible locations and to all students. • Reasonable accommodations are required in admissions testing. • Admissions tests should accurately reflect a person's aptitudes or achievement levels rather than the effects of a disability. • Quotas for persons with disabilities are prohibited. • Generally, pre-admission inquiries into disabling conditions are not allowed.

46. Discrimination in Course Work is Prohibited. • Students may not be excluded from courses, majors, or technical programs because of disability. • Modifications that do not fundamentally alter a program are required. • Auxiliary education aids for persons with sensory, manual, speaking, or learning disabilities must be provided (i.e., course materials in Braille, taped text books, sign language interpreter for a student with a hearing impairment). • However, an institution is not required to provide auxiliary aids for personal use (e.g., a tape recorder for home study).

47. Denial of Physical Access is Prohibited. • Educational facilities must be physically accessible for use by persons with disabilities. • The ADA and Section 504 do not require that every building, facility, or area be barrier free, so long as the program overall is readily accessible to persons with disabilities. • Students must be able to access their classrooms, laboratories, libraries, recreation areas, administration, etc.

48. Grievances: • Internal Grievance Procedures Under Section 504 • Educational programs with at least 15 employees must have a grievance procedure to promptly resolve complaints of discrimination. A student complaining of discrimination should follow the educational program's own internal grievance procedures, if any, before filing a federal agency complaint.

49. Filing Complaint of Discrimination with Federal Funding Agency: • A written complaint can be made to the federal agency that provides money to the educational program. A complaint should be in letter form and should include the following: • Name, address, and telephone number of the person discriminated against; • Name, address, and telephone number of the educational program, including the names of the program's employees who are thought to have acted in a discriminatory manner; • A brief description of the discriminatory acts; • The dates of the discriminatory acts; and • A description of any efforts already made to remedy the problem, and the results of those efforts.

50. ADA Complaints on Discrimination • Any individual who believes that he has been discriminated against may request that the United States Department of Justice (DOJ) initiate an administrative investigation. A special unit within the DOJ will process individual complaints. The DOJ's address and phone number for requesting administrative enforcement assistance is: • U. S. Department of JusticeMain Justice Building10th Street & Constitution Avenue, N.W.Washington, D.C. 20530(202) 314-0301