Running head: LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 1

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Legal Rights of Students with Disabilities in Higher Education

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Jamie Merritt

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University of Southern California
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LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 2

Legal Rights of Students with Disabilities in Higher Education

Introduction

The number of students with disabilities at institutions of higher education is

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increasing. Since the 1980s, the percentage of students reporting having a disability, either

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mental or physical, has increase from 16% to around 40% (Wilhelm, 2003). This
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phenomenon can be traced to many causes including the relatively recent discovery of

learning disabilities, such as dyslexia, Attention Deficit Disorder (ADD), Attention Deficit
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Hyperactivity Disorder (ADHD), and more, and the enactment of policy for students with

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disabilities in elementary through high school, such as the Education for All Handicapped
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Children Act in 1975 (becoming the Individuals with Disabilities Education Act in 1997),
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which allowed student with disabilities to develop their entitlement of equal opportunities
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(Wilhelm, 2003). While the number of students with disabilities attending institutions of
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higher education is increasing, it is still less likely (around four times) for a student with
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disabilities to attend college than their peers without disabilities (Plotner & Marshall,
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2014). This can be attributed to the fact that universities are slowly advancing accessibility
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to students with disabilities (Thomas, 2000). However, advancements and legal cases have
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increased since the passing of the Americans with Disabilities Act of 1990 (ADA) due to its
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broader coverage (Thomas, 2000). This paper will discuss the rules of law associated with
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students with disabilities in higher education and a literature review of the interpretations

of the rules of law, including issues of higher education admissions and accommodations
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on campus.
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Rules of Law
LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 3

Before 1973, the only federal law that provided protection for persons with

disabilities was the 14th amendment (Thomas, 2000). This law requires states to provide

equal protection of the laws to all citizens of the United States and of the state where they

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reside (U.S. Const. amend. XIV, 1).

In 1973, the Rehabilitation Act of 1973 was passed and states that no otherwise

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qualified person due to disability may be denied the participation in, be denied the benefits
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of, or be subjected to discrimination under any program or activity receiving federal
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financial assistance (Thomas, 2000). While this only applies to institutions that receive

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federal financial aid, this constituent applies to all public and most private colleges. In
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addition, even if aid is received anywhere at an institution, the entire school must comply

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with this Act (Thomas, 2000). In order to demonstrate compliance with this Act, a college
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must demonstrate seven services: file a document of assurance of compliance stating a

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non-discrimination promise, provide notice to students of this promise, name a specific

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employee to coordinate compliance, conduct self-evaluations, voluntarily develop

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corrections to those circumstances that may have limited the participation of students with

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disabilities, adopt grievance procedures, and94 fix violations of the act in a timely manner
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(Thomas, 2000). The federal Office of Civil Rights (OCR) enforces this Act (Kutnak, 2015).
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Passed in 1990, the Americans with Disabilities Act (ADA) is a federal law that
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prohibits discrimination against individuals with disabilities in all areas of public life,

including jobs, schools, transportation, and all public and private places that are open to
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the general public (Pub. L. No. 101-336, 104 Stat. 328 (1990)). Title I of ADA makes it illegal
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to discriminate against a qualified person with a disability in the private sector and in state
LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 4

and local governments (42 U.S.C. 12101). Under Title II of ADA, it is prohibited for public

entities, including public colleges and private college that employ public spaces, from

denying qualified persons with disabilities the right to participate in or benefit from the

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services, programs, or activities that they provide (42 U.S.C. 12132; 9). In addition, Title

III of ADA further prohibits discrimination of persons with disabilities from receiving full

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and equal enjoyment of the goods, services, facilities, privileges, advantages, or
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accommodations that a public entity provides (42 U.S.C. 12182(a)). Feasible claims

under ADA include discrimination, harassment, forceful withdrawal, and retaliation

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(Thomas, 2000). The OCR and Division of Justice were responsible for enforcing the ADA
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until amendment in 2008 (Thomas, 2000).

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The ADA was amended in 2008, now called Americans with Disabilities Act
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Amendments Act (ADAAA), to broaden the definition of disability. Under this amendment,
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the Equal Employment Opportunities Commission (EEOC) now defines disability as, a

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physical or mental impairment that substantially limits one or more major life activities; a
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record (or past history) of such an impairment; or being regarded as having a disability

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(Pub. L. No. 101-336, 104 Stat. 328 (2008)). The ADAAA is enforced by the EEOC (Kutnak,
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2015).
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For more information regarding how each law applies to different institutions, see a
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table in Appendix A.
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Literature Review
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Interpretations of Laws in Admissions

LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 5

When discussing higher education admissions, there are two rounds of processes

including preadmission and post admission (Thomas, 2000). Preadmission activities

include completion of forms, testing, interviews, and other application materials (Thomas,

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2000). According to the Department of Education Code of Federal Regulations, colleges

may not make inquiries regarding whether or not a student has a disability during this

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round of admissions (34 C.F.R. 104.42(c)). There are few exceptions to this regulation
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including colleges efforts to correct limited participation of students with disabilities or

past discrimination (Thomas, 2000). During the post admissions round, which includes the
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activities and paperwork after a student is accepted to the institution, colleges may
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confidentially inquire about disability only if the student requires accommodation

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(Thomas, 2000). Students may use special testing accommodations during the
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preadmissions round, including provisions such as larger print, Braille, additional time, and
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oral reading; however the provisions cannot give the student an advantage over students

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without disability accommodations (Thomas, 2000). In addition, college officials are

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notified when an applicant uses a special accommodation during standardized testing. This

accommodated score is not comparable to unaccommodated scores, however admissions

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personnel are advised not to devalue the score and use it as another piece of information in
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scrutinizing the applicants file (Thomas, 2000).
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Students on Campus
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Once students are admitted and begin classes at a university, the institution has
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many more aspects to consider when serving students with disabilities. The primary
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concern at institutions is the increase of students with disabilities, specifically with

LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 6

invisible, mental disabilities (Wilhelm, 2003). Dyslexia has become the most common

mental disability among college students, closely followed by anxiety disorders, ADD, and

ADHD (Wilhelm, 2003). Additionally, they must consider how a students disability

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accommodation is applied fairly and whether or not an institution has a duty to investigate

students based on disability.

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Determining Accommodations. Institutions have increasingly implemented
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centers for student disability access services on campus where the main role is to decide
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upon appropriate accommodations for students with disabilities (Thomas, 2000). These

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centers rely on the federal definition of a disability from the ADAAA as anyone who has a
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physical or mental impairment that substantially limits one or more major life activities,

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has a record of such impairment, or is regarded as having such impairment (Pub. L. No.
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101-336, 104 Stat. 328 (1990)). Within this definition, the word substantial creates some
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differing opinions among higher education institutions and courts when determining if a

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student should receive accommodations (Thomas, 2000). In the past, courts have used four
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different opinions of determining disability: "in comparison to most people in the general

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population"; "in comparison to the average person having comparable training, skills, and
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abilities"; "in comparison to the average unimpaired student"; and "the disparity between
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inherent capacity and performance (Thomas, 2000).

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The first of these options can be seen in Price v. National Board of Medical

Examiners in 1997. In this case, three medical students requested disability

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accommodations for attention deficit disorders and hyperactivity. The students were
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denied disability accommodations because their performance in school exceeded those of

LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 7

most other students (Price v. National Board of Medical Examiners, 966 F.Supp. 419

(1997)). The court ruled that the general population approach was enough to show that

the students were not substantially limited (Thomas, 2000).

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The second approach was used in Bartlett v. New York State Board of Law

Examiners in 1997. In this case, a law student was denied special accommodations to take

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the bar exam. The court used the average person approach and found that the student
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was significantly restricted in the ability to performcompared to the average person
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having comparable training (Bartlett v. New York State Board of Law Examiners, 970 F.

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Supp. 1094 (1997)). The student was as qualified as the average student but could not read
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at the same rate due to her disability. Therefore, the court found her discriminated against

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based on her disability and allowed her to retake the test with accommodations (Thomas,
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2000).
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The third approach is similar to the first but uses the term student population
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instead of general population to compare the students ability. In Bowers v. National

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Collegiate Athletic Association in 1998, a football player with a disability was deemed
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ineligible to play collegiate sports due to his low academic achievements (Bowers v.
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National Collegiate Athletic Association, 974 F.Supp. 459 (1997)). The court declared that
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the students academic achievements should be compared to the average unimpaired

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student instead of the general population. With accommodations for his disability, the

student would be academically comparable to the average unimpaired student and was
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deemed eligible to play sports (Thomas, 2000).

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LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 8

The final option can be seen used in Pazer v. New York State Board of Law

Examiners in 1994. The court in this case ruled that sometimes a student might be found

to have a disability even if he or she exceeds the performance of other students (Pazer v.

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New York State Board of Law Examiners, 849 F.Supp. 284 (1994)). In other words, a

student with disabilities should not be denied accommodations just because they exceed

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the achievement of other students. This case stated that each of these approaches should be
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assessed on its unique facts and students merit (Thomas, 2000).
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Once it is determined that an individual does have a disability and is substantially

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limited, it must be determined if the student meets the qualifications of the institution and
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program (Gordon & Keiser, 2000). If this is also determined, then the disability services

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centers on campus may proceed with determining appropriate accommodations for the
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student. In order to remain equitable, there are three types of accommodations that are
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considered reasonable: alternative instructional methods, auxiliary aids, and alternative

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methods of evaluation (Gordon & Keiser, 2000). These centers also ensure that
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accommodations are necessary to keep all students equitable and are directly related to the

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individuals disability (Gordon & Keiser, 2000).

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Duty to Investigate. Another issue related to services for students with disabilities
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in higher education is whether or not a university has a duty to investigate or if students

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need to self-report disability status and a need for accommodations (Thomas, 2000).

Courts have differed in their rulings regarding these issues. Some argue that is a student is
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proven to have a disability but is otherwise qualified, the university has a duty to
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investigate necessary accommodations (Thomas, 2000). While neither the ADA nor
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Rehabilitation Act of 1973 expresses this duty, the mandate to provide accommodations

would be meaningless without it (Thomas, 2000). This opinion can be seen in Wynne v.

Tufts University School of Medicine in 1992. In this case, a student with an un-reported

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cognitive disability failed many courses in his first year. The university investigated the

situation and the disability and allowed the student to retake the courses after discovering

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the disability. It also provided the student with tutors and note-takers. After he failed his
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courses again, he was then expelled (Wynne v. Tufts University School of Medicine, 976 F.

2d 791 (1992)). This is a situation where the university investigated for necessary
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accommodations when the student did not self-disclose a disability.

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However, the opposing argument states that there is no duty to investigate

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(Thomas, 2000). This opinion is present in Ohio Civil Rights Commission v. Case Western
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Reserve University in 1996. In this case, a blind student was denied admissions into
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medical school. The court found that this was legal because the requirements of medical

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school are to be able to observe patients and other sources of information such as X-rays
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(Ohio Civil Rights Commission v. Case Western Reserve University, Ohio St. 3d (1996)).

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This situation shows a school that did not investigate possible options for a student with
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disabilities and did not see a duty to accommodate.

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In addition, courts agree that students with disabilities cannot rely on professors or
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anyone else to witness symptoms and provide accommodations (Thomas, 2000). Students

are required to self-report the disability if they wish to receive reasonable accommodations
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(Thomas, 2000).
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Conclusion
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Students with disabilities have increased in numbers at higher education

institutions. Like any group that begins to grow campus, universities are being charged

with serving this growing group of individuals. Because of laws such as the Rehabilitation

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Act of 1973 and ADA, universities have specific guidelines that need to be followed when

serving students with disabilities to ensure equitable treatment. Although there are some

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areas for interpretation within these laws, it is up to universities to decide on matters such
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as if a student has a disability and how it should be accommodated reasonably. This topic is

significant because students with disabilities will always be on campus and will continue to
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grow as a percentage of the student body. All higher education administrators need to be
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equipped with the legal and social knowledge about this group in order to serve the

individuals best.
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LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 11

References

1. 42 U.S.C. 12101

2. 42 U.S.C. 12132

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3. 42 U.S.C. 12182(a)

4. Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990)

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5. Americans With Disabilities Act Amendments Act of 2008, Pub. L. No. 101-336, 104
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Stat. 328 (2008)
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6. Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 1094 (1997)

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7. Bowers v. National Collegiate Athletic Association, 974 F.Supp. 459 (1997)

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8. Gordon, M. & Keiser, S. (2000). Accommodations in higher education under the

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americans with disabilities act (ADA): A no-nonsense guide for clinicians, educators,
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administrators, and lawyers. Guilford Press: New York City.

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9. Kutnak, M.J. (2015). Admissions decisions, the law, and students with disabilities.

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College and University, 90 (2). Retrieved from

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http://zb5lh7ed7a.search.serialssolutions.com/?ctx_ver=Z39.88-

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2004&ctx_enc=info%3Aofi%2Fenc%3AUTF-
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8&rfr_id=info%3Asid%2Fsummon.serialssolutions.com&rft_val_fmt=info%3Aofi%2
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Ffmt%3Akev%3Amtx%3Ajournal&rft.genre=article&rft.atitle=Admissions+Decision
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s%2C+the+Law%2C+and+Students+with+Disabilities&rft.jtitle=College+and+Unive
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rsity&rft.au=Kutnak%2C+Michael+J&rft.au=Janosik%2C+Steven+M&rft.date=2015
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&rft.pub=American+Association+of+Collegiate+Registrars+and+Admissions+Officer
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s+%28AACRAO%29&rft.issn=0010-
LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 12

0889&rft.volume=90&rft.issue=2&rft.spage=20&rft.externalDocID=EJ1062337&par

amdict=en-US.

10. Ohio Civil Rights Commission v. Case Western Reserve University, Ohio St. 3d

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(1996)

11. Pazer v. New York State Board of Law Examiners, 849 F.Supp. 284 (1994)

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12. Plotner, A.J. & Marshall, K.J. (2014). Navigating university policies to support
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postsecondary education programs for students with intellectual disabilities.

Journal of Disability Policy Studies, 25(1). Retrieved from

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http://journals.sagepub.com/doi/full/10.1177/1044207313514609.
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13. Price v. National Board of Medical Examiners, 966 F.Supp. 419 (1997)

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14. Thomas, S.B. (2000). College students and disability law. The Journal of Special
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Education, 33(4). Retrieved by
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http://journals.sagepub.com/doi/abs/10.1177/002246690003300408.

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15. U.S. Const. amend. XIV, 1

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16. Wilhelm, S. (2003). Accommodating mental disability in higher education: A

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practical guide to ADA requirements. Journal of Law and Education, 32(2). Retrieved
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from http://search.proquest.com/docview/200945895?pq-
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origsite=summon&accountid=14749.
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17. Wynne v. Tufts University School of Medicine, 976 F. 2d 791 (1992)

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LEGAL RIGHTS OF STUDENTS WITH DISABILITIES 13

Appendix A

Table 1: Applicability of Selected Federal Laws Related to Disability (Thomas, 2000)

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