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Policy and Legal Dimensions of Higher Education

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Published: 18th Nov 2020

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Research/Analysis Paper

Policy and Legal Dimensions of Higher Education

In the course, Policy & Legal Issues in Higher Education, students learned how the interface of policy and law affect the nature and process of higher education. Students were required to choose a topic related to higher education law and policy and complete a thorough research on that topic. As such, this paper analyses the Americans with Disabilities Act (ADA). It provides an overview of the ADA, issues associated with the ADA in the context of students in higher education, presents some cases related to the ADA, associated with those issues that shaped higher education, and provides some possible solutions to the issue of funding and access in disability in higher education. 

The Americans with Disabilities Act provides civil rights protections to people with disabilities (ADA National Network, 2019). This Act grants equal opportunity for people with disabilities in employment, transportation, public spaces, state and local government services, and telecommunications. The ADA has five titles that describe different areas of public life. Title I describes equal employment opportunities; Title II bans discrimination based on disability in state and local government services and programs; Title III explains public accommodations and accommodations in commercial facilities in the context of disability. Title IV describes telephone and internet enterprises to provide telecommunications services (i.e., closed captioning) for public service announcements, allowing people with hearing and speech disabilities to communicate. Title V explains a list of conditions that are not counted as disabilities and offers several requirements related to the ADA (ADA National Network, 2019). The Department of Justice enforces Title II and III of the ADA. If a university receives federal funding, whether public or private, it falls under Section 504 of the Rehabilitation Act, which mandates them to make their programs available to students with disabilities (Rothstein, 2015).

The disability law started to apply to the institutions of higher education in 1973 with the passing of Section 504 of the Rehabilitation Act of 1973. This act banned discrimination based on disability for all programs that receive federal money (29 U.S.C. § 794, 1973). Higher education falls under Section 504, under the definition of programs. Since higher education institutions rely much on federal financial support, it covers most of the higher education institutions. Section 504 states that “covered entities must accommodate those students with disabilities and modify their programs and services, if necessary” (34 C.F.R. §104, 1994); Currier, 2000).

  In 1990, congress passed the American with Disabilities Act (42 U. S. C. § 1210, 1990).  The ADA Amendments Act of 2008 redefined disability, which applies to all titles of the ADA (ADA Amendments Act of 2008, 2008). Title II and Title III of the ADA mandates public accommodations and prohibits discrimination against people based on their disability. It requires these entities to provide reasonable accommodations when necessary. Most public institutions are considered public accommodations as part of Title II of the ADA; thus, the ADA applies to them; nonetheless, the student must qualify for disability based on the definition provided in the ADA (ADA National Network, 2019).

Issues for Students with Disabilities

  1. Otherwise Qualified

The ADA and the Rehabilitation Act state a student who claims disability protection must have his or her disability defined in the rulings and also be “otherwise qualified.” The Rehabilitation Act of 1973 failed to provide any explanation of what “otherwise qualified” means. The regulations do, however, state that qualified individuals with a disability are those “who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity” (34 C.F.R. § 104.4, 2000; Rothstein, 2015).  The Supreme Court’s ruling in Southeastern Community College v. Davis (1997) became the basis for the verdict in 1990 and within the ADA Amendments Act of 2008 (The ADA Amendments Act of 2008, 2008). Since the Rehabilitation Act is consistent with the ADA, the definition is pertinent to both (Rothstein, 2015). The Department of Education, Section 504, and the Department of Justice, Title II and III of the ADA are the administrative agencies involved with student issues and provide guidance (ADA National Network, 2019). Southeastern Community College v. Davis (1997) was the first-ever case heard by the Supreme Court on “otherwise qualified” in disability. Section 504 of the Department of Education states that a disabled person is qualified for admission only when they meet the “academic and technical standards” (29 U.S.C. § 794, 1973; Rothstein, 2015).

Southeastern Community College v. Davis (1979) clarified reasonable accommodations. Davis, who was hearing impaired, was rejected by a nursing program admission at Southeastern Community College on the basis that the applicant’s disability would not satisfy the requirements of the program. Southeastern Community College disagreed with waiving the clinical requirements of the program for Davis or assigning a tutor that would assist her with communication during the clinic. The Supreme Court ruled that an “otherwise qualified” disabled is a person “who is qualified in spite of (rather than except for) his disability” (Kaplin & Lee, 2014, p. 330). Since Davis's disability is relevant to his qualification for the nursing program, Section 504 of the Department of Education does not mandate institutions from imposing “reasonable physical qualifications” on applicants for admission, especially when those qualifications are essential requirements of the program. This court decision defined “otherwise qualified” and “reasonable accommodation”. The court clarified that reasonable accommodation does not mean that higher education institutions should make considerable changes, nor should institutions lower their academic standards to accommodate a disabled individual (Kaplin & Lee, 2014; Gitlow, 1999).  This ruling helped clarify that technical requirements for a program are permitted (Gitlow, 1999).  

  1. Reasonable Accommodations

The Rehabilitation Act and the ADA mandate nondiscrimination and necessitate reasonable accommodations. For students in colleges in universities, the accommodations fall in the category of auxiliary aids and services, modifications of policies, practices, and procedures (Rothstein, 2015). The ADA Amendments Act of 2008 (2008) clarifies the requirements of the ADA and the Rehabilitation Act, describing that the auxiliary aids and services mean:

Qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services and actions. (Section. 4.)

Additional accommodation includes the following: extra time for exams, a quiet room for tests, waivers, the substitution of course assignments, extra time for course assignments and degree completion, permission to record lectures, modification of policies, and permit for animals for emotional support (Rothstein, 2015).  Court cases that shaped disabilities in higher education include the Ohio Civil Rights Commission v. Case Western Reserve University and Wynne v. Tufts University School of Medicine (1996).

The Ohio Civil Rights Commission v. Case Western Reserve University (1996) case revealed the importance of good faith attempt to accommodate otherwise qualified disabled individuals. Cheryl Fischer was a student who became blind during the second year of college. Fischer received accommodations for visual impairments during her undergraduate degree, including laboratory assistants and readers, audiobooks, oral exams, and extra times during examinations. Case Western Reserve University’s (CWRU) Medical School denied Fischer admission despite two attempts. The admissions committee stated that Fischer is unable to complete the essential requirements of the medical school. Fischer filed a complaint with the Ohio Civil Rights Commission (OCRC) that she had been discriminated against by the CWRU based on her disability. The OCRC determined that Fischer would be able to complete the medical school requirements with reasonable accommodations based on the experience of Dr. Hartman, also was a visually impaired student who graduated medical school from Temple University in 1979.  The OCRC believed CWRU failed to research how the university could benefit Fischer. CWRU appealed the OCRC’s decision to the Cuyahoga County Common Plea Court, which overturned the decision of the OCRC. OCRC explained that CWRU accommodations would change the nature of the medical school program and place an unnecessary burden on the school. The Ohio State Supreme court agreed with the ruling of the Cuyahoga County Common Plea. It was, however, noted that the medical school failed to show an attempting to consult Dr. Hartman to find the possibility of accommodation based on his experience in medical school (Gitlow, 1999; Kaplin & Lee, 2014).

Wynne v. Tufts University School of Medicine (1st Cir. 1991 and 1992) addressed the standards of accommodations and described that the burden is on the institution to prove that university personnel considered alternative accommodations. Wynne had a learning disability, dyslexia, who Tufts University terminated because of his academic performance. Wynne appealed his dismissal and felt that Tufts University had discriminated against based on his disability. Wynne wished to take multiple-choice exams in a different format, and Tufts University refused to respect his wish. The courts denied Wynne’ case stating that Tufts did consider the possibility of an alternative test, the cost and effect associated with providing the alternative test, and made a rational and reasonable decision that a different form of testing would lower academic standards and require considerable program changes. Gitlow (1999) documents, in this case, the court valued professional faculty judgment and “continued the precedent of the courts to defer to the academic institutions in deciding who is otherwise qualified, and what is a reasonable accommodation that will not substantially alter the nature of the program” (p. 243).  According to Rothstein (1996), courts often defer to medical and allied health program faculty due to patient safety concerns and their expertise in the medical setting and student required skills. 

  1. Documentation

To receive protection under the Rehabilitation Act and the ADA, a person with disability is supposed to be limited in everyday life activities; they need to “be otherwise qualified, able to carry essential requirements of the program with or without reasonable accommodations” (29 U.S.C. § 794, 2014; 42 U.S.C. § 12102(2), 2012). Disabled individuals are further required to make “known” their disability and have proof of their disability in a timely manner before they can prove that a particular program discriminated against them in providing reasonable accommodations (Rothstein, 2015).

The ADA Standards of 2010 (United States, 2010) do provide guidelines related to the needed documentation for disability. They state that the documentation request needs to be reasonable and “limited to the need for the requested accommodation” (United States, 2010; Rothstein, 2015).  Individuals who have received accommodations in the past should be highly considered for accommodations. It further describes that responses to accommodation requests should be timely (Gitlow, 1999; Rothstein, 2015). However, there are still some unclear requirements of documentation when requesting the need for accommodations: what kind of paperwork would prove that an individual is disabled within the law? Which professionals are qualified to provide documentation? What type of paperwork should the treating professional send back with the disabled individual? Who is responsible for the payment of the needed documentation? Is it the student or the institution's responsibility? And how current does the documentation need to be? (Gitlow, 1999; Rothstein, 2015).

There is a court case, The Department of Fair Employment and Housing V.  Law School Admission Council, Inc. (2014), discussing documentation requirements for tests. This case challenged the Law School Admission Council (LSAC) documentation requirements for students who were taking the LSAT. This lawsuit alleged that LSAC consistently denied requests for testing accommodations (for individuals with attention deficit disorder, dyslexia, paralysis, and visual impairment), despite applicants providing substantive supporting documents. LSAC also flagged the LSAT score of people with accommodation for extra time on their LSAT. This lawsuit claimed that LSAC discriminated against individuals with disabilities that is prohibited by the ADA. In 2014 a settlement was reached for LSAC to pay for damages and penalties. The court ruled that LSAC, through consent decree, make reasonable accommodations for future students (Bayles, 2018). LSAC was also ordered to implement best practices to review and evaluate testing accommodations requests (California Department of Fair Employment and Housing, 2019).

 From the above explanations and cases, it is clear that reasonable accommodations are not meant to cause an unnecessary burden on the universities. However, universities must show that they tried to accommodate an otherwise qualified student (Sears, 1996; Gitlow, 1999).  Margaret Price (2011) explains that in “otherwise qualified”, "One must be disabled enough under the ADA to require accommodations but not so disabled that they cannot perform the essential functions of the position or that accommodations would place an undue hardship on the employer" (p. 109). Also, important take away from these legal cases is that disability services personnel within the higher education openly communicate with students requesting the accommodation. It is essential to have policies, practices, and procedures easily accessible and ensure that the university community knows who or where to turn to make requests for accommodations (Rothstein, 2015).

  1. The Unfunded Americans with Disabilities Act

According to the National Center for Education Statistics (2019), in 2019, 19.4% of undergraduate students in the United States had a disability. Fort- six percent of disabled students graduate high school and enter higher education and only 40 percent of these individuals graduate within eight years (Sesay, 2017). The number of disabled students’ attendance in higher education is on the rise, the highest growth seen in students with learning and psychological disabilities (Farr, 2010).  For individuals with disabilities, attending higher education helps them succeed academically, enhance their belonging, and work and live independently (Sesay, 2017).

The American with Disabilities Act mandates colleges and universities to provide reasonable accommodations to disabled students (28 C.F.R. § 35. 130, 1990). Disabled students are required to follow the institution’s policies and rules related to students with disabilities to qualify for disabilities services such as tutoring, extra time on exams, or extended time for degree completion at an institution. However, the provision of these services puts financial burden on colleges and universities. (Miliani, 1996).

Additionally, the offices of disabilities in higher education have been the target of reduced funding due to the state budget cuts causing them to be under budget and under-staffed (Williams, 2018). Thus, disability support programs are serving a higher number of students with limited funding (Farr, 2010).  For this reason, both Section 504 and the ADA unfunded mandate are viewed as unnecessary burdens (Currier, 2000).

Considering the trends of reduced funding in colleges and universities and the important function of the disability services office, higher education institutions need to adopt alternative or innovative practices to meet the goals of the office of disabilities service in their institutions and benefit students with disabilities. These goals are possible through conducting research and making disability a campus-wide responsibility.

Possible Solutions

 Conduct Research

  To provide a broad look at the consequences of budget cuts, reduce staff at the office of disabilities services and the effects reduced funding have had on the programs and students with disabilities, universities need to conduct more research, perhaps a case study of their current practices, policies and student needs on disabilities.  The present research on disability in higher education lacks attention to environmental considerations that individuals with disabilities face or the prospective of disabled individuals (Evans, Broido, Brown, Wilke & Herriott, 2017). We need to research the everyday experiences of individuals with a disability at each university. Research on the broader range of issues at individual institutions would allow policy and practice to be informed by data that would bring to the surface the specific needs of disabled students and the disability office at each university (Evans et al., 2017).

Disability a Campus-Wide Responsibility

  The responsibility to assist and to make sure that disabled students succeed is not the responsibility of the office of disabilities alone; it is the responsibility of the university as a whole.  Higher education institutions need to create an inclusive university environment that prepares and accommodates a diverse student population (Do-IT, 2019). Universities need to make sure that all instructions and services are available to all students, rather than reacting to the accommodation requirements of individual students with disabilities. Accommodations to support students with disabilities needs to be provided in all aspects of the university, ensuring inclusiveness and accessibility in all areas of students services, from admissions to housing, labs, student organizations (Do-IT, 2019).

The first step to having an inclusive university starts with ensuring that all available university information and policies are accessible to students with disabilities online. Inclusiveness begins with the creation of an online Accessibility Policy, which will “ensure consistent, well-organized universally accessible electronic resources” (Do-IT, 2019, p. 1). The Accessibility Policy will be used as a guide when planning and organizing events at the university, as a measurement of goals and as a training resource (Do-IT, 2019).  Examples of accommodations described in the accessibility policy will include how various departments can make the necessary accommodations within their offices to make inaccessible resources accessible and take students with disabilities into considerations when planning every university-wide event, no matter how small. It will also be beneficial for each institution to create an Americans with Disabilities Act Committee, inclusive of students, faculty, and administrators who can evaluate university access issues and access barriers and offer suggestions to making the particular institution an inclusive one. All of these steps will ensure that the disabilities office carries its mission and make the institution an inclusive university.

In conclusion, this paper provided an overview of the Americans with Disabilities Act, some ambiguity within this Act, along with pertinent cases related to students in relations to the ADA. It also presented some solutions to the unfunded issue of the ADA in higher education.

References

  • ADA Amendments Act of 2008. 42 U.S.C. §12103 (2010). Retrieved from https://www.eeoc.gov/laws/statutes/adaaa.cfm
  • ADA National Network, Information, guidance, and training on the Americans with Disabilities Act. (2019). What is the Americans with Disabilities Act? Retrieved from https://adata.org/learn-about-ada
  • Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (1990).
  • Americans with disabilities act title II regulations, 28 C.F.R. § 35. 130 (1990). Retrieved from https://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm
  • Bayles, C. (2018, February). LSAT administrator likely in contempt as feds sit idly by. Law360, A LexisNexis Company. Retrieved from http://moritzlaw.osu.edu/sites/colker2/files/2018/02/LSAT-Administrator-Likely-In-Contempt-As-Feds-Sit-Idly-By-Law360.pdf
  • California Department of Fair Employment and Housing. (2019). Consent Decree in DFEH V. LSAC. Retrieved from https://www.dfeh.ca.gov/legal-records-and-reports/dfeh-v-lsac/consent-decree-in-dfeh-v-lsac/
  • Currier, H. (2000). The ADA reasonable accommodations requirement and the development of university services policies: helping or hindering students with learning disabilities? 30 U. Balt. L.F. 42. Retrieved from http://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1995&context=lf
  • Definition of disability, 42 U.S.C. § 12102 (2) (2012).
  • Definition of disability, 42 U.S.C. § 12102 (3) (2012).
  • Do-IT. (2019). Self-examination: how inclusive is your campus? University of Washington. Retrieved from https://www.washington.edu/doit/sites/default/files/atoms/files/Self_Exam_Inclusive_Campus_tagged.pdf
  • Evans, N. J., Broido, E. M., Brown, K. R., Wilke, A. K., & Herriott, T. K. (2017). Disability in higher education: a social justice approach. Retrieved from http://ebookcentral.proquest.com
  • Farr, B. (2010). Effects of reduced funding on disabled student programs and services in California community colleges. Sacramento: MPR Associates Inc.
  • Gitlow, L. (1999). Individuals with disabilities and professional education programs: an analysis of legislation, court rulings and policy, Disability & Society, 14:2, 239-248. DOI: 10.1080/09687599926307
  • Kaplin, W. & Lee, B. (2014). The law of higher education – student version. Fifth Edition.  San Francisco: Jossey-Bass.
  • Miliani, A. (1996). Disabled students in higher education: administrative and judicial enforcement of disability law, Journal of College and University Law, 22, 989-1043.
  • Nondiscrimination on the basis of handicap in programs or activities receiving federal financial assistance, 34 C.F.R. § 104.4 (2000).
  • Nondiscrimination under Federal grants and programs, 29 U.S.C. U.S. Code § 794, (2014).
  • Price, M. (2011). Mad at school: Rhetorics of mental disability and academic life. Ann Arbor: University of Michigan Press.
  • Rothstein, L. (1996). Current disability law issues for higher education, in R. B. Crockett &  S. S. Kehl (Eds) Accommodating Students with Emotional Disabilities: A Legal Compendium (Washington, DC, National Association of College and University Attorneys), 329-344.
  • Rothstein, L. (2015). The Americans with disabilities act and higher education 25 years later: an update on the history and current disability discrimination issues for higher education. Journal of College & University Law, 41(3), 531-590.
  • Section 504 of the Rehabilitation Act of 1973, 34 C.F.R. Part 104 Sept. 26, (1973).
  • Sears, J. (1996). Learning disabilities, postsecondary education, and section 504 of the rehabilitation act of 1973, in R. B. Crockett & S. S. Kehl (Eds) Accommodating Students with Emotional Disabilities: A Legal Compendium (Washington, DC, National Association of College and University Attorneys), 75-92.
  • Sesay, Y. (2017, July 13). Students with disabilities: we want our fair chance at college. Diverse Issues In Higher Education, Retrieved from https://diverseeducation.com/article/99029/
  • Southeastern Community College v. Davis, 442 U.S. 397, (1979).
  • The Department of Fair Employment and Housing V.  Law School Admission Council, Inc., CV 12-1830-EMC, (2014).
  • The Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2d 1376 (1996).
  • United States. (2010). 2010 ADA standards for accessible design. Washington, D.C.: Dept. of Justice.
  • U.S. Department of Education, National Center for Education Statistics. (2019). Digest of Education Statistics, 2017 (2018-070). Retrieved from https://nces.ed.gov/fastfacts/display.asp?id=60.
  • Williams, P. C. (2018). We’re smothering our universities. Spirited Reasoner LLC.
  • Wynne v. Tufts University School of Medicine, 976 F.2d 791, 932 F.2d 19 (1st Cir. 1991 and 1992).

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