Congress passed the Individuals with Disabilities Education Act to guarantee educational opportunities to primary and secondary students. But Congress has passed no laws specifically designed to protect college students with disabilities.[1] Those students are protected by only a patchwork of general antidiscrimination laws. Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) are the most important such laws.
Section 504 and the ADA prohibit public facilities and federally funded programs from discriminating against persons with disabilities.[2] This non-discrimination mandate bars covered entities from intentionally discriminating against persons with disabilities, and it requires covered entities to provide persons with disabilities reasonable accommodations when necessary to ensure equal access to benefits and services.[3]
Because all but a few colleges are either public institutions or federally funded, Section 504 and the ADA’s non-discrimination mandate protects most college students with disabilities.[4] And the mandate applies to most aspects of the college experience: the admissions process, classroom instruction, disciplinary proceedings, extracurriculars, dormitory living, and more. The ADA, for example, prohibits a college from imposing “eligibility criteria that screen out or tend to screen out a[] [student] with a disability or any class of [student]s with disabilities from fully and equally enjoying” any of the college’s benefits or services.[5]
But Section 504’s and the ADA’s protections are limited in two significant ways. First, they do not apply to all students who consider themselves disabled. Section 504 and the ADA set forth criteria that govern which students qualify for protection. Second, even if a student qualifies for protection, her college can, in certain circumstances, deny her accommodations that she requires to access the college’s benefits and services.
A. Section 504 and ADA Qualifying Criteria
To qualify for Section 504 and ADA protection, a college student must be a student with a disability who is otherwise qualified for the educational benefits or services to which she seeks access.[6] A student has a disability under Section 504 and the ADA if she has “a physical or mental impairment that substantially limits one or more major life activities.”[7] The student is otherwise qualified for educational benefits or services if, despite her disability, she can carry out the essential functions of the benefits or services.[8]
1. An impairment that substantially limits a major life activity
Section 504’s and the ADA’s definition of “impairment” encompasses a variety of impairments. Physical impairments “include mobility impairments, hearing impairments, speech impairments[,] and visual impairments.”[9] Mental impairments include “[a]ny mental or psychological disorder, such as an intellectual disability . . . , organic brain syndrome, emotional or mental illness, and specific learning disabilities.”[10] Autism also constitutes a mental impairment under Section 504 and the ADA; it is considered a mental disorder.[11]
But an impairment alone will not establish that a student is “disabled” under Section 504 and the ADA. The student “must advance individualized evidence that [her impairment] is substantial in the context of [a] major life activity as a whole.”[12] Major life activities include an array of activities, such as “[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.”[13] An impairment substantially limits one of these activities only if it “limits the ability of [the student] to perform [the activity] as compared to most people in the general population.”[14]
2. The “otherwise qualified” criterion
A student is “otherwise qualified” for an educational program or specific educational service only if she can meet all of the program’s or service’s requirements despite her disability.[15] In other words, a student is qualified only if she can satisfy the academic and technical standards of a program or service.[16]
Consider a student with a disability who is denied placement in his college’s pre-med program and believes that the denial was discriminatory. To invoke Section 504 and the ADA, the student would have to show as a threshold matter that he satisfies (with or without accommodations) the program’s academic standards. This might require the student to show, for instance, that he has a satisfactory grade point average, that he has the ability master pre-med course content, and that he otherwise has the ability “to meet a pre-determined standard of academic achievement.”[17]
In some circumstances, a program or service might have technical, in addition to academic, standards that students must meet. Take, for example, a clinical program in a graduate school for education that requires students to enter local elementary schools and teach classes. The program may have technical standards for applicants such as “the ability to convey information to students, professional demeanor, the ability to control a classroom of students, and so forth.”[18]
For all students with disabilities, proving this “otherwise qualified” criterion can be difficult because courts afford deference to college decisions about a student’s ability to satisfy academic and technical standards.[19] Manickavasagar v. Virginia Commonwealth University School of Medicine is instructive.[20] There, the plaintiff sued Virginia Commonwealth University’s School of Medicine under Section 504 and the ADA, alleging that the school denied him admission because he is disabled. The District Court for the Eastern District of Virginia ruled against the plaintiff after explaining that admissions decisions are entitled to deference. The court began its analysis by stating:
Given the specialized nature of the academic environment, it is firmly settled that courts should only reluctantly intervene in academic decisions. As the Supreme Court has instructed, when reviewing the substance of academic decisions, courts should show great respect for the faculty’s professional judgment. . . . Fundamentally, therefore, it is established that the determination to admit a student into a given academic program ordinarily requires the expert evaluation of numerous factors that are not conducive to judicial decisionmaking. This deference informs the context in which . . . this case must be evaluated . . . .[21]
Viewing the school’s admissions decision through this deferential lens, the court then determined that the plaintiff’s claims failed because he did not sufficiently show that he was qualified for admission.[22] After reviewing the plaintiff’s undergraduate grade point average, his relevant test scores, and his performance at his admissions interview, the court deferred to the school’s determination that the plaintiff did not meet the school’s general admissions criteria.[23]
For students with a disability that impacts behavior—such as autism—the “otherwise qualified” criterion can be an even greater barrier. Colleges can point to a student’s behavioral problems as disqualifying her from dormitory living, on-campus programming, or attendance altogether.[24] If a student’s behavior poses a threat to others, her college can expel her even if the behavior is a manifestation of her disability;[25] the threat, under Section 504 and the ADA, renders the student not otherwise qualified for attendance.[26] And even if a student’s behavior does not pose a threat to others, it can render her not otherwise qualified for a variety of services and programming. Behavioral problems, for example, can disqualify a student from dormitory living if the problems are sufficiently disruptive.
B. Scope of the Non-Discrimination Mandate
If a student has a disability and is otherwise qualified, a college cannot exclude her from any part of its program or services, or otherwise discriminate against her.[27] This non-discrimination mandate prohibits colleges from adopting policies or practices that (1) deny a student with a disability equal access to services and programming, (2) prevent a student with a disability from accessing the same benefits and services as other students, or (3) provide services and programming to a student with a disability that are “different or separate from that provided to other” students.[28]
The mandate also requires colleges to provide reasonable accommodations when necessary to ensure equal opportunities;[29] a college violates Section 504 and the ADA if it fails “to take such steps as may be necessary to ensure that no [student] with a disability is excluded, denied services, segregated or otherwise treated differently than other[s] because of the absence of auxiliary aids and services . . . .”[30] However, a college is required to provide an accommodation only if a student puts the college on notice of her disability and requests the accommodation.[31] Further, colleges need not provide accommodations that “would fundamentally alter the nature of the good, service, facility, [or] privilege . . . being offered.”[32] Nor must they provide accommodations that impose “undue financial and administrative burdens.”[33]
These protections manifest in different ways in different contexts. Four specific contexts are relevant for college students with disabilities: the admissions process, classroom learning and degree completion, campus life, and disciplinary proceedings.
1. Admissions process
The non-discrimination mandate provides several protections to students with disabilities during the admissions process. First, colleges cannot use admissions criteria designed to exclude students with disabilities.[34] Second, to prevent discrimination against individual students, colleges cannot make “pre-admission inquiries as to whether an applicant for admission is disabled.”[35] Third, colleges cannot “make use of any test or criterion for admission that has a disproportionate, adverse effect on [disabled] persons or any class of [disabled] persons . . . .”[36] This protection applies to not only pre-admission tests given by a college but also the Scholastic Aptitude Test, the Graduate Record Exam, the Law School Admissions Test, and the Medical College Admissions Test.[37] Finally, colleges must provide reasonable accommodations to students during the application process, including accommodations to allow students with disabilities to participate equally in admissions tests and interviews.[38]
2. Classroom learning and degree completion
The non-discrimination mandate protects students with disabilities in their academic pursuits by requiring colleges to integrate them and other students to the maximum extent possible and by requiring colleges to provide them reasonable accommodations.[39] Section 504 and the ADA identify three types of academic accommodations: adjustments to academic requirements, testing accommodations, and auxiliary aids and services.[40]
Adjustments to academic requirements “may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.”[41] But colleges are not required to make such adjustments upon a student’s request; even if a particular requirement has discriminatory effects, a college can decline to adjust it as long as it is essential to the college’s instructional program.[42] J.A.M. v. Nova Southeastern University[43] is illustrative. In that case, a student who suffered from depression alleged that Nova Southeastern University discriminated against him under the ADA because it refused to grant him medical absence leave, to reschedule his exams, or to excuse his violations of the code of conduct.[44] The Eleventh Circuit Court of Appeals rejected the student’s claim, finding that those requested accommodations would have fundamentally altered the nature of the services provided by Nova Southeastern.[45]
Testing accommodations are any accommodations necessary to “ensure that the results of [a test] represent[ a] student’s achievement in the course, rather than reflecting the student’s” disability.[46] Examples include additional time to complete a test; testing in an isolated, less-distracting setting; or alterations to testing materials, such as providing braille or enlarging the font of materials.
Auxiliary aids and services is a broad category of accommodations; it includes any aid or service necessary to ensure equal access to educational content. Auxiliary aids and services “may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments[;] readers in libraries for students with visual impairments[; and] classroom equipment adapted for use by students with manual impairments.”[47] For students with autism, auxiliary aids and services might include decreasing the amount of stimuli in the classroom setting or providing a peer mentor who can help the student navigate academic requirements, as well as the academic support services available on campus.
3. Campus life
The non-discrimination mandate requires colleges to afford students with disabilities the same opportunities to participate in campus life as other students. Colleges must provide students with disabilities equal access to dormitory living, campus activities, and campus buildings and resources. If, for example, a college offers dormitory living to non-disabled students, it must “provide comparable, convenient, and accessible housing to [disabled] students at the same cost as to others.”[48] And colleges must provide individual accommodations to students with disabilities when necessary for those students to participate in campus activities. Such accommodations might include providing a student who is deaf with an interpreter at student government meetings. Another accommodation might be behavioral supports that allow a student with autism to live in a dormitory or to participate in social events. Indeed, one court has noted that: “A school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodations to help the student avoid engaging in misconduct.”[49]
4. Disciplinary proceedings
Students with disabilities have far fewer protections during college disciplinary proceedings than during primary and secondary school disciplinary proceedings.[50] In primary and secondary school, before drastic disciplinary penalties can be imposed on a student with a disability, her school district must determine whether her behavioral problems are a manifestation of her disability.[51] If the district answers that question in the affirmative, it cannot impose certain forms of punishment and it must provide the student with supports that address her behavioral problems.[52] But colleges are not required to take into account a student’s disabilities when punishing the student. College “[s]tudents with disabilities may . . . be disciplined to the same extent as any other student, up to and including dismissal, regardless of whether or not the offending behavior was a manifestation of their disability.”[53] However, the non-discrimination mandate requires colleges to ensure that students with disabilities have the same access to disciplinary proceedings as other students.
Many colleges have similar internal procedures for addressing disciplinary violations. Typically, disciplinary proceedings commence when a student or staff member files a complaint with the appropriate administrative office. The accused student is then notified of the complaint, and depending on the severity of the allegations, the college will provide the student an opportunity to respond to the allegations in writing, to attend a “conduct meeting” to discuss the allegations, or to contest the allegations at a hearing.[54] Under Section 504 and the ADA, colleges must alter these procedures when necessary to ensure that an accused student with disabilities has the same opportunity as other students to contest the allegations against her.
C. Conclusion
College students with disabilities have rights, but the rights are less robust than the rights afforded to primary and secondary students with disabilities. Therefore, it is all the more important for college students to know their rights and to prioritize self-advocacy.
Endnotes
[1] Joseph T. DiMaria, Disciplining Students with Disabilities: A Comparative Analysis of K-12 and Higher Education, 2012 B.Y.U. Educ. & L.J. 413, 426 (2012).
[2] See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756 (2017) (“[The ADA and § 504 of the Rehabilitation Act cover people with disabilities of all ages, and do so both inside and outside schools. [They] aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable accommodations) to participate equally to all others in public facilities and federally funded programs.); Doe v. Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (applying the same analysis to a Section 504 and an ADA claim because “the language of the two statutes is substantially the same”).
[3] See Fry, 137 S. Ct. at 756.
[4] Section 504 protects students at colleges that receive federal financial assistance, Title II of the ADA protects student at state-funded or -supported colleges, and Title III of the ADA protects students at private colleges. Bonnie Poitras Tucker, Application of the Americans with Disabilities Act (ADA) and Section 504 to Colleges and Universities: An Overview and Discussion of Special Issues Relating to Students, 23 J.C. & U.L. 1 (1996).
[5] See 42 U.S.C. § 12182(B)(2)(a)(i).
[6] See Doe, 40 F.3d at 1264–65.
[7] 42 U.S.C. § 12102(1). A student also qualifies as having a disability if she has “a record of [that type of] impairment” or “is regarded as having such an impairment.” Id.
[8] Se. Cmty. Coll. v. Davis, 442 U.S. 397, 407 (1979).
[9] Sande L. Buhai, Practice Makes Perfect: Reasonable Accommodation of Law Students with Disabilities in Clinical Placements, 36 San Diego L. Rev. 137, 154 (1999).
[10] 29 C.F.R. § 1630.2(h)(2).
[11] Buhai, 36 San Diego L. Rev. at 155.
[12] Ellenberg v. New Mexico Military Inst., 572 F.3d 815, 821 (10th Cir. 2009) (internal quotation marks omitted).
[13] 29 C.F.R. § 1630.2(i)(1).
[14] Id.
[15] Davis, 442 U.S. at 406; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997).
[16] See Ellen Babbitt & Barbara A. Lee, Accommodating Students with Disabilities in Clinical and Professional Programs: New Challenges, New Strategies, 42 J.C. & U.L. 119, 158 (2016).
[17] See id. at 122–23.
[18] See id. at 123.
[19] See Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 463 (4th Cir. 2012) (“[Courts] have overwhelmingly extended some level of deference to schools’ professional judgments regarding students’ qualifications when addressing disability discrimination claims.”),
[20] 667 F. Supp. 2d 635 (E.D. Va. 2009).
[21] Id. at 642–43.
[22] Id. at 644–645.
[23] See id.
[24] See Laura Rothstein, Disability Law Issues for High Risk Students: Addressing Violence and Disruption, 35 J.C. & U.L. 691, 701–02 (2009).
[25] See id.
[26] See id.
[27] See Tucker, 23 J.C. & U.L. at 3.
[28] See 42 U.S.C. § 12182(b)(1)(A).
[29] See Fry, 137 S. Ct. at 756.
[30] 42 U.S.C. § 12182(b)(2)(A)(iii).
[31] Manickavasagar, 667 F. Supp. 2d at 646 (“[A]n educational institution is only required to provide accommodation when a plaintiff has provided a proper diagnosis and requested specific accommodation.” (internal quotation marks omitted)).
[32] 42 U.S.C. § 12182(b)(2)(A)(iii).
[33] See Halpern, 669 F.3d at 464.
[34] 34 C.F.R. § 104.42(a).
[35] Tucker, 23 J.C. & U.L. at 5.
[36] 34 C.F.R. § 104.42(b)(2).
[37] Tucker, 23 J.C. & U.L. at 8.
[38] See 34 C.F.R. § 104.42(b)(3).
[39] § 104.43; § 104.44.
[40] 34 C.F.R. § 104.44.
[41] Id.
[42] Id.
[43] 646 F. App’x 921 (11th Cir. 2016).
[44] Id. at 925
[45] Id.
[46] 34 C.F.R. § 104.44(c).
[47] § 104.44(d).
[48] § 104.45.
[49] Halpern, 669 F.3d at 465.
[50] See DiMaria, 2012 B.Y.U. Educ. & L.J. at 413–14.
[51] 20 U.S.C. § 1415(k)(1)(E).
[52] § 1415(k)(1)(F).
[53] DiMaria, 2012 B.Y.U. Educ. & L.J. at 435.
[54] Id. at 432–34.
