Students with Disabilities in Postsecondary Education: Legal Considerations

1. Students with Disabilities in Postsecondary Education: Legal Considerations A Presentation for the Disability Training Network for the TAMU System Antonis Katsiyannis, EdD

2. Consider... • Discuss legislative mandates regarding individuals with disabilities in postsecondary settings • Define reasonable accommodations • What is the “average person” approach and what are the implications of applying such an approach? • Discuss implications of the Sutton trilogy court cases

3. Participation Rates Participation of student with disabilities in postsecondary education has been increasing steadily 1995-1996 --six percent 1999-2000-- nine percent 2003-2004 --11.3% of undergraduates reported having a disability. 2003-2004, 25.3% reported an orthopedic condition, 21.9% a mental illness or depression, and 17.4% a health impairment, 10.9% an Attention Deficit Disorder, 7.4% a learning disability; 3.8% a visual impairment, and 4.9% a hearing impairment (National Center for Education Statistics, 2006)

4. NLTS-2 • The NLTS2 report shows that the incidence of students with disabilities completing high school rather than dropping out increased by 17 percentage points between 1987 and 2003. • During the same period, their postsecondary education participation more than doubled to 32 percent. • In 2003, 70 percent of students with disabilities who had been out of school for up to two years had paying jobs, compared to only 55 percent in 1987.

5. Legislation –IDEA 2004 • IDEA 2004 requires “measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills.”

6. Higher Education Act • Sections 762 and 763 of the Title VII, Part D, of the Higher Education Act of 1965, as amended by the Higher Education Amendments of 1998 (P.L. 105-244), authorized demonstration projects to ensure students with disabilities receive a quality higher education program. Section 762 of the statute authorizes grants to institutions of higher education to “provide professional development and technical assistance in order for students with learning disabilities to receive a quality postsecondary education”

7. Legislation- Section 504 • Section 504, a Civil Rights Act, intended to eliminate discrimination on a basis of a disability, included specific provisions in Subpart E that apply to postsecondary education programs or activities, including postsecondary vocational education programs or activities receiving federal financial assistance.

8. Legislation-Section 504 • Section 504 requires that qualified individuals with disabilities • may not be denied admission or be subjected to discrimination on the basis of a disability (104.2). • must have access to “academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.” (104.3). • An institution must make modifications to its academic requirements as are necessary to ensure non discrimination (e.g., length of time for the completion of degree requirements, course substitution required for graduation, and course delivery)(104.4)

9. Legislation-Section 504 • Institutions are also required to provide auxiliary aids such as taped texts, interpreters, readers in libraries, and modified classroom equipment. Recipients are not required to provide devices or services of a personal nature (e.g., attendants, readers for personal use) (104.4). • Institutions must provide comparable, convenient, and accessible housing to handicapped students at the same cost as to others (Section 104.5). • Institutions should also ensure access physical education courses and athletics, counseling and placement services and social organizations for which the institution provides significant assistance

10. Legislation-ADA • Title II of the Americans with Disabilities Act of 1990 (ADA) prohibits state and local governments from discriminating on the basis of disability. Title II applies to public colleges, universities, and graduate and professional schools. The requirements regarding the provision of auxiliary aids and services described in Subpart E of Section 504 are generally applicable under Title II.

11. Enforcement • The Office of Civil Rights in the U.S. Department of Education enforces both Section 504 and Title II of ADA • According to guidance provided by the U.S. Department of Education (2006), institutions are not required provided a free appropriate public education (mandated for school age children) but rather provide appropriate academic adjustment. • These adjustments though will be considered only upon request and are intended to ensure equal educational opportunity. • Adjustments which lower or substantial changes in requirements are nor covered.

12. Definition • A physical or mental impairment that substantially limits one or more major life activities of such individual • A record of such an impairment • Being regarded as having such an impairment

13. Mental Impairment • Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities (EECO) • Examples-bipolar disorder, anxiety disorders, obsessive-compulsive disorders…irritability, poor judgment do not qualify • Test anxiety in itself not a disorder-must meet criteria of generalized anxiety disorder to qualify

14. Major Life Activity • Basic activities that the average person in the general population can perform with little or no difficulty • Caring for one self performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working • Reeves case-panic disorder with agoraphobia-unable to take vacation, go alone to the mall, crossing bridges or going through a tunnel…”everyday mobility” limitation-NOT covered.

15. Substantially Limited • Unable to perform a mjor life cativity that the average person in the general population can perform • Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity

16. Eligibility Process • Institutions may establish reasonable standards for documenting one’s disability from professionals such as a physician, psychologist or other qualified diagnostician. • Costs associated with necessary evaluations are born by the individual with a disability. • Cost for needed adjustments, however, is the responsibility of the institutions (U.S. Department of Education, 2006). • Necessary auxiliary aids and services must be provided in a timely fashion, including during the period an eligibility is taking place (U.S. Department of Education, 1998).

17. IDEA • FAPE • Child find • Procedural safeguards • Special education and related services demand more of schools than non discrimination and reasonable accommodations under Section 504 • Tutoring may be a related service under IDEA but not under ADA • Health services-OT/PT viewed as individualized services and therefore not required under Section 504

18. Litigation • Southeastern Community College v. Davis (1979)-A student with a severe hearing impairment was denied admission to a nursing program. The court concluded that an otherwise qualified person is one who is able to meet all of a program's requirements in spite of his disability and that institutions have the right to set and maintain standards unless they are arbitrary. The Court further noted that though the lines between lawful refusal and illegal discrimination may not be always clear, refusal to modify and existing program might become unreasonable and discriminatory if there is no consideration given to latest developments and advances in technology.

19. Litigation • Doe v. New York University (1981)- A medical student was denied readmission based on a history of violent and self destructive behavior. The court held that the student's psychological disorder was a disability but that her exclusion was not a violation of Section 504 because of the risk she presented to herself and others.

20. Litigation • Pushkin v. Regents of the University of Colorado (1981)-the court held that decisions based on the possible reactions of others, not on risk, violated the central intent of Section 504. Pushkin was denied admission to a psychiatric residency program-did not have the necessary emotional stability to contend with patients' reactions to his disability. Pushkin has Multiple Sclerosis and uses a wheelchair.

21. Litigation • Alexander v. Choate (1985)-the Court ruled that accommodations that fundamentally alter the nature of the benefit or program are not reasonable. The Court further established that the definition of otherwise qualified was to include the ability to meet a standard or participate in a program with reasonable modifications or accommodations • Wynne v. Tufts (1991)-an institution must be able to document the legitimacy of the standard to a student's academic program, the expertise 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.

22. Litigation-Eligibility • McGuinness v. University of New Mexico School of Medicine-a student alleged that he had a disability because he had an anxiety disorder that substantially limited his "academic functioning." His disorder manifested itself when he took chemistry and mathematics tests. The court ruled that although anxiety disorder qualifies as impairment under the ADA, its manifestation in only two subjects did not result in a limitation of a major life activity. Further, even if this impairment limited a major life activity, that limitation would not be substantial. Finally, the court stated that alternate study habits may resolve the effects of test anxiety in the same manner as eyeglasses correct impaired vision so that it does not constitute a disability under the ADA.

23. Average Person Standard • Another area of controversy has been the eligibility of students with learning disabilities, particularly in light of the standard applied. The ADA defines "disability" as an impairment that substantially limits a major life activity. This limitation is supposed to be determined with reference not to one's innate abilities, but to the skills of the average American citizen. • In contrast, Denbo (2003) argued that courts should compare them to a similarly educated group and not to the general population. Literal application of the regulations would make it virtually impossible for anyone with a college or graduate degree to be protected under the ADA or Section 504

24. Average Person Standard-Litigation • In Price v. National Board of Medical Examiners (1997), the court employed the "average person in the general population" formula in concluding that three medical students who were denied additional time and separate rooms for the United States Medical Licensing Examination (USMLE) were not disabled for purposes of the ADA. • Consequently, unless an individual is functionally impaired as compared with the average person in the general population, he or she should not receive unfair advantages (Wilhelm, 2003)

25. The Sutton Trilogy • Sutton v. United Air Lines, Inc.(1999)- the Court held that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses. • Albertson's, Inc. v. Kirkingburg (1999)-individual had amblyopia--an uncorrectable condition that left him with 20/200 vision in his left eye and thus effectively monocular vision. The Court ruled that while monocularity inevitably leads to some loss of horizontal field of vision and depth perception monocularity does not invariably cause a substantial limitation of a major life activity • Murphy v. United Parcel Service, Inc.(1999)-the individual was not qualified because medication was sufficient to control his high blood pressure

26. Sutton Trilogy-Implications • These cases stand for the principle that a person is not "substantially limited" if a disability can be mitigated (e.g., medication) and if the disability does not limit a person in a "major life activity." (Knauff, 2001).  • Potentially, an individual who has epilepsy is not entitled to disability discrimination legal protection if the medication controls the seizures (Rothstein, 2004). • Court rulings addressing ADA disability definition/eligibility in a manner to restrict inclusion are in contrast to current medical and mental health approaches to disability definition that expand inclusion (Ranseen & Parks, 2005)

27. Issues • Definition • Mental and substance Abuse Impairments • Accommodations • Licensure process-reporting obligations • Standardized tests-”flag” • Accessible Technology: on-line courses • Off –campus programming-study abroad • Architectural barriers

28. Consider... • Discuss legislative mandates regarding individuals with disabilities in postsecondary settings • Define reasonable accommodations • What is the “average person” approach and what are the implications of applying such an approach? • Discuss implications of the Sutton trilogy court cases