HIGHER EDUCATION AND DISABILITIES: TRENDS AND DEVELOPMENTS ... · PDF fileHIGHER EDUCATION AND...

* © 1997 Laura F. Rothstein. All rights reserved.** Law Foundation Professor of Law, University of Houston Law Center. B.A.,

University of Kansas, 1971; J.D., Georgetown University Law Center, 1974. The Authorwishes to thank Harriet Richman, Faculty Research Librarian, for her assistance.

1. 29 U.S.C. § 794 (1994). Section 504 of the Rehabilitation Act prohibits dis-crimination on the basis of disability by programs receiving federal financial assistance.

2. 42 U.S.C. §§ 12101–12213 (1994). Title I of the ADA prohibits employmentdiscrimination by employers with 15 or more employees. See id. §§ 12111–12117. Title IIof the ADA prohibits discrimination by state and local governmental agencies, whichwould include publicly funded institutions of higher education. See id. §§ 12131–12164.Title III of the ADA applies to private providers of 12 specified categories of publicaccommodations, including educational programs, and would apply to private institutionsof higher education. See id. §§ 12181–12189.

3. The Individuals with Disabilities Education Act (IDEA) was passed in 1975under the title “Education for All Handicapped Children Act.” 20 U.S.C. §§ 1400–1461(1994). The IDEA requires that schools provide a free, appropriate public education to allage-eligible children with disabilities and that procedural safeguards be provided to im-plement this program. See id. § 1412(1); 34 C.F.R. § 300.121(a) (1996). This means thenumber of students prepared for college has increased substantially. These students aremore likely to seek redress when they believe they have been discriminated against.

HIGHER EDUCATION AND DISABILITIES:TRENDS AND DEVELOPMENTS*

Laura F. Rothstein**

I. INTRODUCTION

Section 504 of the Rehabilitation Act of 1973 (Section 504)1

mandated that colleges and universities take action under theAmericans with Disabilities Act of 1990 (ADA)2 to stop discrimina-tion against students, staff, and faculty on the basis of their disabil-ities. It was not until the early 1990s, however, that disability law inthe higher education context was the subject of substantial activityin the courts and by enforcement agencies. The reasons for this de-layed activity probably include the entry into colleges of studentswho had received special education in public schools beginning in1975,3 and the greater awareness of rights by college-age studentsbecause of the media attention surrounding the passage of the ADA.With respect to employment issues, particularly faculty issues, theincreased activity probably relates to the elimination of mandatory

120 Stetson Law Review [Vol. XXVII

4. The Age Discrimination in Employment Act of 1986 (ADEA), 29 U.S.C.§§ 621–634 (1994), provided that, as of January 1, 1987, employers could no longer set amandatory retirement age. A special rule resulted in an extension of this deadline forhigher education in certain instances involving tenured faculty until 1994. See ADEAAmendments of 1978, Pub. L. No. 95-256, 92 Stat. 189–90 (repealed Dec. 31, 1993).

5. The percentage of freshmen with disabilities has increased from 2.6% in 1978to 9.2% in 1994. Of those college students with disabilities, the following conditions werecited: 23% with health impairments, 20% with hearing impairments, 18% with learningdisabilities, 11% with sight impairments, and 7% with speech impairments. See Ameri-can Council on Education, Postsecondary Students with Disabilities: Where Are TheyEnrolled? (Dec. 1996) [hereinafter 1996 ACE Report].

6. Earlier discussions of legal developments can be found in Adam A. Milani, Dis-abled Students in Higher Education: Administrative and Judicial Enforcement of Disabil-ity Law, 22 J.C. & U.L. 989 (1996); Bonnie Poitras Tucker, Application of the Americanswith Disabilities Act and Section 504 to Colleges and Universities: An Overview and Dis-cussion of Special Issues Relating to Students, 23 J.C. &. U.L. 1 (1996); Laura F.Rothstein, College Students with Disabilities: Litigation Trends, 13 REV. LITIG. 425(1994); Laura F. Rothstein, Section 504 of the Rehabilitation Act: Emerging Issues forColleges and Universities, 13 J.C. & U.L. 229 (1986); Laura F. Rothstein, Students, Staffand Faculty with Disabilities: Current Issues for Colleges and Universities, 17 J.C. & U.L.471 (1991). For a comprehensive listing of cases involving higher education and disabilitydiscrimination, see LAURA F. ROTHSTEIN, DISABILITIES AND THE LAW ch. 7 (1992 & Supp.1996).

7. For a detailed discussion of this issue, see Laura F. Rothstein, Health CareProfessionals with Mental and Physical Impairments: Developments in Disability Discrim-ination Law, 41 ST. LOUIS L.J. (forthcoming 1997) (manuscript available from Author).

8. The focus of the Article is on developments within the last two years, but lessrecent developments of significance are also discussed.

retirement4 and the need for colleges and universities with increas-ing budgetary constraints to find ways of belt-tightening, includingthe termination of unproductive and incompetent faculty.

Whatever the reasons for the increased activity in the early1990s, there has been little indication that the use of disability lawto redress grievances is dissipating. And the number of studentswith disabilities continues to grow.5 While some of the issues, suchas determining the qualifications and accommodations of studentswith learning disabilities, remain the same,6 new questions haveemerged in more recent years. The questions include disabledstudents' participation in athletics and programs abroad, and de-termination of fundamental aspects of programs, particularly inareas such as health care professional training programs.7 Studentsand faculty with mental health and substance abuse problems alsohave presented new and complex challenges for institutions of high-er education.

This Article reviews the recent8 caselaw and enforcement activi-

1997] Higher Education and Disabilities 121

9. A 1992 American Council on Education report indicated that the proportion offreshman with disabilities citing learning disabilities increased from 15% in 1985 to 25%in 1991. Cathy Henderson, College Freshmen with Disabilities: A Statistical Profile(American Council on Education, HEATH Resource Center 1992). A 1996 report indicatesthat the percentage of disabled students with learning disabilities was 18% in 1992. Thismay indicate a leveling off in the number of self-identifying students, but it still indi-cates a high number of students overall. In 1992, approximately 802,548 students withdisabilities were enrolled in undergraduate education. 1996 ACE Report, supra note 5.

10. The 1996 ACE Report, supra note 5, suggests that a pool of older students,who had previously not received accommodations and who are now returning to college,may exist.

11. See 34 C.F.R. § 104.42 (1996). Preadmissions inquiries requesting disclosure ofdisabilities on applications violate Section 504 and the ADA unless done for remedialpurposes. See id. § 104.42(b)(4)–(c); Glendale Community College, 5 Nat'l Disability L.Rep. 91 36 (Off. Civ. Rts. 1993). [EDS. NOTE: The National Disability Law Reporter isavailable on WESTLAW in the NDLRPTR database].

ty in areas in which there has been substantial activity. It identifiestrends and developments in these areas and then attempts to pre-dict the direction that activity will follow.

II. LEARNING DISABILITIES

The number of students with learning disabilities has increasedsubstantially in the last decade.9 While some of this growth is attrib-utable to better preparation of students with learning disabilities forhigher education, some almost certainly results from better knowl-edge about identifying disabilities.10

Substantial controversy surrounds whether someone has alearning disability and who is qualified to make such an assessment.Colleges and universities face a number of difficulties as a result oftheir admissions practices, as well as in their accommodation of en-rolled students.

A. Admissions Issues

Institutions of higher education must not discriminate in ad-missions, recruiting, applications, testing, interviewing, or decision-making processes.11 With respect to applicants with learning dis-abilities, schools must proceed carefully when using standardizedtests and other eligibility criteria that tend to screen out individualswith disabilities.

Virtually all standardized testing programs provide accommo-dations for students with learning disabilities. For that reason,


12. See SUNY Health Science Ctr. at Brooklyn-College of Med., 5 Nat'l DisabilityL. Rep. ¶ 77 (Off. Civ. Rts. 1993) (placing asterisk next to nonstandard test scores dur-ing admission decision process, as long as test score is not sole criterion for admission,does not violate Section 504).

13. See University of Minn., 6 Nat'l Disability L. Rep. ¶ 295 (Off. Civ. Rts. 1995)(finding that law school applicant with GPA and LSAT score considerably lower thanother applicants did not make out ADA or Section 504 violation; refusing to waive theLSAT requirement or to upwardly adjust the applicant's GPA does not violate the ADAor Section 504).

14. The Assistant Secretary of Education, within the Department of Education Of-fice for Civil Rights, has the authority to investigate complaints against recipients offederal financial assistance (under Section 504 of the Rehabilitation Act), 34 C.F.R.§ 104.1–104.5 (1996), and against state and local governmental entities (under Title II ofthe ADA), 28 C.F.R. §§ 35.170, 35.190(b)(2) (1996).

15. See University of Minn., 6 Nat'l Disability L. Rep. ¶ 295 (Off. Civ. Rts. 1995)(law school); Davidson County Community College, 6 Nat'l Disability L. Rep. ¶ 232 (Off.Civ. Rts. 1994) (nursing school); Emory Univ., 5 Nat'l Disability L. Rep. ¶ 79 (Off. Civ.Rts. 1993); Washington & Lee Univ., 5 Nat'l Disability L. Rep. ¶ 78 (Off. Civ. Rts. 1993);Duke Univ., 4 Nat'l Disability L. Rep. ¶ 448 (Off. Civ. Rts. 1993) (law school); VanderbiltUniv., 4 Nat'l Disability L. Rep. ¶ 382 (Off. Civ. Rts. 1993) (law school); Univ. of Mass.Med. Ctr., 4 Nat'l Disability L. Rep. ¶ 314 (Off. Civ. Rts. 1993).

when scores received on tests taken with accommodations are nottreated as having less value,12 institutions generally have no prob-lem in requiring standardized test scores, particularly when suchscores are not the sole basis for admission.13 These institutions maywell be vulnerable, however, when standardized test scores are usedas the sole basis for admission, scholarships, or any other benefitrelating to admission, and when other factors are not considered forstudents with learning and other disabilities.

It is quite clear from the opinion letters of the Office for CivilRights of the Department of Education (OCR)14 that programs arenot required to lower standards to make admission decisions. Anumber of colleges and universities have been investigated as aresult of complaints by applicants with learning disabilities whowere not admitted. In virtually all of these cases, the institution wasable to demonstrate that it did not discriminate by showing that ap-plicants with learning disabilities had been admitted and that theacademic qualifications of the rejected applicant were below those ofaccepted applicants.15

Although neither the ADA nor Section 504 requires them, anumber of institutions have developed special admission programsthat allow students who do not meet the qualification requirementsfor regular admission an opportunity to prove they are academically


16. See Halasz v. University of New Eng., 816 F. Supp. 37, 46 (D. Me. 1993).17. See Betts v. Rector & Visitors of the Univ. of Va., 939 F. Supp. 461 (W.D. Va.

1996) (indicating that applicant to medical school did not successfully complete specialadmission program and was accommodated during the program); Fruth v. New YorkUniv., 2 Am. Disability Cas. (BNA) 1197, 1198 (S.D.N.Y. 1993).

18. See North Idaho College, 5 Nat'l Disability L. Rep. ¶ 484 (Off. Civ. Rts. 1994);University of Cal., San Diego, 5 Nat'l Disability L. Rep. ¶ 163 (Off. Civ. Rts. 1993).

19. Accommodations for a student with a learning disability may include additionaltime for examination, reduced course loads, readers for course materials and for exam-inations, and assistance in manually marking exams. See Temple Univ., 8 Nat'l Disabili-ty L. Rep. ¶ 125 (Off. Civ. Rts. 1995) (no Section 504 or ADA violation when student didnot seek academic modifications for economics class until well into the semester); YorkTechnical College, 8 Nat'l Disability L. Rep. ¶ 60 (Off. Civ. Rts. 1995) (no Section 504 orADA violation when student with hearing impairment did not formally notify the collegethat she needed accommodations); University of Alaska, Anchorage, 5 Nat'l Disability L.Rep. ¶ 39 (Off. Civ. Rts. 1993) (exam time extension request not justified until studentprovided documentation); Oregon State Univ., 5 Nat'l Disability L. Rep. ¶ 19 (Off. Civ.Rts. 1993) (Section 504 and ADA violated by failing to promptly respond to request fortaped text for student with learning disability); Community College of Vt., 4 Nat'l Dis-ability L. Rep. ¶ 406 (Off. Civ. Rts. 1993) (student with dyslexia failed to provide

able. While preadmission inquiry about disability is generally notallowed, when admission to a special program depends on the exis-tence of the disability, the institution is allowed to ask about this onthe application and to require that the applicant provide appropriatedocumentation proving the disability.16 In spite of accommodation inthese special programs, some students still are not able to succeed,and, in these cases, it is not a violation of nondiscrimination man-dates to refuse admission into the regular program.17

Although the Office for Civil Rights has found very few viola-tions in the admission processes for individual applicants, in thecourse of these investigations it has found violations of Section 504and the ADA when institutions did not have appropriate proceduresin place.18 For this reason, institutions are well-advised to re-view their procedures to ensure that information on how to receiveaccommodations is well-publicized, that a specific office or individu-al is identified as the point of contact for requesting accommoda-tions, and that a grievance procedure is in place.

B. Enrolled Students

As is the case for applicants with learning disabilities who re-quest accommodation in the admission process, enrolled studentsalso must provide appropriate documentation of a learning disabilityand the specific accommodations19 required if they want special


documentation).20. See Christian v. New York St. Bd. of Law Exam'rs, No. 94 Civ. 0949 (JFK),

1994 WL 62797, at *1 (S.D.N.Y. Feb. 23, 1994); Rosenthal v. New York St. Bd. of LawExam'rs, 92 Civ. 1100 (S.D.N.Y. 1992); Northwestern College, 6 Nat'l Disability L. Rep.¶ 261 (Off. Civ. Rts. 1995) (student with learning disability must show evidence of needfor adjustments; one evaluation not current; second evaluation did not support requestfor oral testing).

21. See Doe v. Harvard Univ., 5 Nat'l Disability L. Rep. ¶ 367 (1st Cir. 1994) (stu-dent did not rebut university's evidence that his learning disability had been adequatelyaccommodated); Pandazides v. Virginia Bd. of Educ., 804 F. Supp. 794, 803 (E.D. Va.1992) (teacher can be required to pass national teacher exam); Bennett College, 7 Nat'lDisability L. Rep. ¶ 26 (Off. Civ. Rts. 1995) (waiver of math requirement not requiredfor student with learning disability seeking bachelor's degree in political science); FloridaDep't of Educ., 4 Nat'l Disability L. Rep. ¶ 333 (Off. Civ. Rts. 1993) (legitimate to re-quire successful completion of math portion of teacher certification exam to ensureteacher competency).

22. See Northern Ariz. Univ., 5 Nat'l Disability L. Rep. ¶ 284 (Off. Civ. Rts. 1994);Oregon St. Univ., 5 Nat'l Disability L. Rep. ¶ 19 (Off. Civ. Rts. 1993).

23. See Boston University's New Policies Spark Debate, 7 ADA Compl. Guide 1(May 1996); Tamar Lewin, New Proof Required for Learning Disabled, N.Y. TIMES, Feb.13, 1996, at A16.

treatment. Generally speaking, the cost of the evaluation is to bepaid by the applicant or student.

The issue of documentation can be controversial for a variety ofreasons. These reasons include disputes over the qualifications ofthe evaluators, whether the evaluation is sufficiently recent, andwhether the evaluation justifies the specific accommodations re-quested.20 In addition, even if the documentation justifies the needfor accommodations, institutions have been fairly successful indemonstrating that certain requested accommodations are funda-mental alterations of their programs, and, as such, are not re-quired.21

One area of controversy involves special programming, such astutoring and special study preparation specifically designed for stu-dents with learning disabilities. Higher education institutions prob-ably are not required to provide specialized programming of thistype.22 A debate has arisen, however, with respect to at least oneinstitution in which such programming was offered and subse-quently withdrawn, thus affecting enrolled students.23 Legal prece-dent has not yet provided guidance on this issue. It may well be,however, that such cases will be resolved on the basis of contractprinciples, such as detrimental reliance, rather than on disabilitydiscrimination law.


24. 7 Nat'l Disability L. Rep. ¶ 188 (Off. Civ. Rts. 1995).25. See id.26. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a) (1996); see also Nathanson

v. Medical College of Pa., 926 F.2d 1368, 1381 (3d Cir. 1991) (remanding case to deter-mine whether medical school should have known that a back condition required reason-able accommodations).

27. See DePaul Univ., 4 Nat'l Disability L. Rep. ¶ 157 (Off. Civ. Rts. 1993). Thedecision in Betts v. Rector & Visitors of the University of Virginia, 939 F. Supp. 461(W.D. Va. 1996), raises questions about whether the student was really given an appro-priate opportunity under the circumstances. The student was admitted to a special pro-gram designed for economically disadvantaged and minority students. See id. at 463. Hislearning disability was not diagnosed until late in the second semester, after which hewas provided accommodations. See id. at 464. His low first-semester grade point averagemade it difficult for him to reach the necessary cumulative grade point required for con-tinuation. See id. Perhaps a more appropriate accommodation would have been to permit

An unusual situation arose when concern existed about a stu-dent declining accommodations that had been offered. In an opinionletter following a complaint about Columbia Basin College in Wash-ington State,24 the OCR found it was not a violation to require thestudent to confirm in writing the decision to decline accommoda-tions. It was, however, a violation of the ADA and Section 504 to gooverboard in ensuring that the student understood classroom in-structions by repeatedly and publicly asking the student for reas-surance that the instructions were understood.25

C. Readmission

An area of increasing concern within the higher education com-munity is the readmission of students who either did not discoverthe learning disability until after the academic failure or who werenot appropriately accommodated while attending the program. Thequestion is what, if any, obligation the institution has to readmit thestudent.

While there is little clear judicial guidance on these issues,there are some principles that may provide clarity. Programs arerequired to accommodate only known disabilities.26 This standardcan create problems, however, for the student with a learning dis-ability that may not be known, even to the student. At least oneOCR opinion letter indicates that while the institution may not berequired to readmit the student who discovers the learning disabili-ty after failure, it is at least required to consider this as a factor in areadmission decision.27


him a clean start beginning in the following year.28. See Tips v. Regents of Tex. Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex.

1996).29. See Ellis v. Morehouse Sch. of Med., 925 F. Supp. 1529 (N.D. Ga. 1996). In this

case, a medical student with dyslexia, see id. at 1532, was given double time to takeexams during his first two years, see id. at 1533, but performance deficiencies during histhird and fourth years could not be accommodated, see id. at 1534. The court upheld hisdismissal. See id. at 1551; accord Northern Ariz. Univ., 5 Nat'l Disability L. Rep. ¶ 284(Off. Civ. Rts. 1994) (graduate student with learning disability had been provided ex-tended test times and quiet test area; no violation of Section 504 or ADA); Florida Dep'tof Educ., 4 Nat'l Disability L. Rep. ¶ 333 (Off. Civ. Rts. 1993) (teacher certification testlegitimately requires successful completion of math portion of test; adequate modifica-tions to test had been provided).

30. 451 U.S. 390, 393, 398 (1981). The Court remanded the case on proceduralgrounds. See id. at 398.

31. 908 F.2d 740 (11th Cir. 1990).32. See id. at 747.

When the student knows of the learning disability, however,and does not make this known and/or does not request accommoda-tions, even if the institution knows of the disability, it probably isnot required to readmit the student.28 When the institution hasmade accommodations, it is unlikely that it will be required to waivefundamental requirements or lower standards when the student hasnot met the academic achievement levels required for continuation.29

III. AUXILIARY AIDS AND SERVICES AND OTHERACCOMMODATIONS

The primary issue regarding auxiliary aids and services, such asinterpreters and readers, is the responsibility for payment. The Su-preme Court avoided this issue when it declined to hear Universityof Texas v. Camenisch.30 It is likely, however, that most colleges anduniversities follow the rationale applied by the Eleventh Circuit inUnited States v. Board of Trustees,31 in which the court determinedthat the institution is primarily responsible for costs of reasonableaccommodations, although the door was left open if the school coulddemonstrate undue burden.32 In all probability, most large highereducation institutions are not interested in subjecting their discre-tionary budgets to judicial scrutiny, so they are unlikely to raiseundue financial burden as a defense.

There have been some new issues raised in recent actions relat-ed to auxiliary aids and services. One involves responsibility foraccommodations and auxiliary services for foreign study. Another


33. See San Jose State Univ., 4 Nat'l Disability L. Rep. ¶ 358 (Off. Civ. Rts. 1993)(university's obligation to train and offer guidance to county official supervising studentdoing field work).

34. See University of Cal., L.A., 8 Nat'l Disability L. Rep. ¶ 314 (Off. Civ. Rts.1996) (student with learning disability did not provide adequate notice of need for accom-modations for field placement work in social work program; no ADA or Section 504 viola-tion).

35. See, e.g., Providence College, 6 Nat'l Disability L. Rep. ¶ 89 (Off. Civ. Rts.1994) (commencement exercises in inaccessible location; inaccessible restrooms); Universi-ty of Nev. at Reno, 5 Nat'l Disability L. Rep. ¶ 358 (Off. Civ. Rts. 1994) (failure to re-move barriers in parking, signage, entrances, restrooms, routes to programs and activi-ties, and housing); North Idaho College, 5 Nat'l Disability L. Rep. ¶ 484 (Off. Civ. Rts.1994) (significant barriers found; charging student for disabled parking permit does notviolate Section 504); University of Mass., 5 Nat'l Disability L. Rep. ¶ 322 (Off. Civ. Rts.1994) (recommending moving counseling center to accessible site); University of Mass.-Amherst, 4 Nat'l Disability L. Rep. ¶ 431 (Off. Civ. Rts. 1993) (inadequate parkingspaces for persons with disabilities and inaccessible cafeteria).

area of new questions relates to programming such as externshipplacements. In neither area has there been substantial judicial oragency guidance. Both areas, however, are likely to be the basis forcontinuing attention and interest.

With respect to externships and field placements, such as thosein programs for teachers and social workers, what guidance isavailable seems to indicate that the higher education institution isresponsible for ensuring that the institution providing the fieldplacement or supervising the externship is reasonably accommoda-ting students with disabilities.33 The student, however, is responsi-ble for giving adequate notice of the need for accommodation.34

Related to this issue is whether accommodations must be pro-vided to students taking noncredit courses or to members of thepublic who attend lectures and programming. It is probable that theinstitution must provide reasonable accommodations because theseare programs and activities that it offers. What is less clear iswhether the budget for that program alone will be the basis for de-termining undue financial burden, or whether the entire budget forthe department, college, or institution providing the program isrelevant.

IV. ARCHITECTURAL BARRIERS

While few students in higher education have challenged acces-sibility and sought to eliminate architectural and other physicalbarriers at athletic, social, and other special events,35 quite a bit of


36. Lawsuits were filed in April 1996 against new sports arenas in Philadelphiaand Buffalo. See 8 Disability Compl. Bull. 8 (May 23, 1996).

37. Although not in the higher education context, an interesting case highlightingthis issue is Bechtel v. East Pennsylvania School District, 3 Am. Disability Cas. (BNA)200, 201 (E.D. Pa. 1994). A student in a wheelchair sought barrier removal because hewas unable to attend athletic events at the stadium. See id. The court denied theschool's motion to dismiss the ADA Title II claim challenging the lack of access. See id.at 202.

38. See 34 C.F.R. § 104.6(c) (1996). In addition, Title II entities are to conduct self-evaluations. See 28 C.F.R. § 35.105(a) (1996).

39. See 34 C.F.R. § 104.42(c) (1996). In Gardiner v. Mercyhurst College, 942 F.Supp. 1050, 1051–52 (W.D. Pa. 1995), a student in a campus police training programwas terminated from the program based on a personality test and a psychological review.The court found that although he had received psychiatric treatment in the past, he hadpersonality traits of immaturity and emotional stress that were incompatible with police

attention has been focused on this issue by complainants seekingaccessibility in public sports arenas36 and a stadium at a public highschool.37 Perhaps these challenges are a precursor to greater atten-tion by complainants to this issue in the higher education setting.The lack of activity in this area, however, may be a result of the factthat colleges and universities were required to do a self-evaluationunder Section 504 of the Rehabilitation Act and may have removedbarriers, at least on some campuses.38

V. MENTAL AND SUBSTANCE ABUSE IMPAIRMENTS

Issues related to students, staff, and faculty with mental andsubstance abuse impairments present unique problems for institu-tions of higher education. These institutions must balance concernsabout confidentiality and privacy with concerns about competencyand direct threat to self or others, all within the context of disabilitydiscrimination law.

Institutions understandably want to prevent dangerous individ-uals from harming others at the institution and to prevent individ-uals whose behavior is disruptive from interfering with the educa-tional process for everyone. Care must be taken, however, whenmaking assumptions about individuals with mental health historiesor with substance abuse problems.

In avoiding myths and stereotypes about individuals with men-tal and substance abuse problems, colleges and universities shouldbe careful about asking questions about mental health or substanceabuse status in admission39 or employment40 applications. It is per-


work, but which did not define him as protected under the Rehabilitation Act. See id. at1053.

40. See 29 C.F.R. §§ 1630.13, 1630.14 (1996).41. See Boyle v. Brown Univ., 881 F. Supp. 747, 749 (D.R.I. 1995) (discrimination

claim by medical student who was required to provide evidence of emotional stability).42. EEOC & U.S. DEP'T OF JUSTICE, AMERICANS WITH DISABILITIES HANDBOOK, at I-

12 (1991).43. The court in Clark v. Virginia Board of Bar Examiners, 880 F. Supp. 430, 431

(E.D. Va. 1994), struck down a question asking whether an applicant had “been treatedor counselled for any mental, emotional, or nervous disorder[s]” within the past fiveyears. The decision includes an extensive listing of judicial decisions in other jurisdic-tions that address this issue. See id. passim; see also Gardiner v. Mercyhurst College,942 F. Supp. 1050 (W.D. Pa. 1995).

44. Applicants v. Texas St. Bd. of Law Exam'rs, No. A-93-CA-740 (W.D. Tex. Oct.11, 1994) (upholding narrowly tailored questions about mental health history as part ofthe bar admission process); see also Medical Soc'y of N.J. v. Jacobs, Civ. A. No. 93-3670(WGB), 1993 WL 413016, at **4, 11 (D.N.J. Oct. 5, 1993) (denying a preliminary injunc-tion against broad questions asking about mental health and substance abuse history asviolating Title II of the ADA when asked by a state board of medical examiners).

45. See Linson v. Trustees of Univ. of Pa., 8 Nat'l Disability L. Rep. ¶ 299 (E.D.Pa. 1996) (University of Pennsylvania did not perceive former graduate student as hav-ing mental disability although counseling was suggested by university officials because ofunusual behavior); Dixie College, 8 Nat'l Disability L. Rep. ¶ 31 (Off. Civ. Rts. 1995) (noviolation of the ADA or Section 504 in expelling a student because of stalking and ha-rassing a professor; student was expelled because of threat, not perceived mental disabil-ity); Northern Mich. Univ., 7 Nat'l Disability L. Rep. ¶ 244 (Off. Civ. Rts. 1995) (no vio-lation to place observers in classroom of student with Tourette's syndrome to evaluate

missible to ask questions about behavior and conduct, even if it isrelated to mental health or substance abuse problems and the cur-rent use of illegal drugs.41 It is also permissible to seek reassurancethat illegal drug use is no longer occurring.42

What can be asked about mental health history is less clear.Most of the recent judicial development concerning questions aboutmental health history has related to admission to a profession, suchas law or medicine, and it is not as clear how this would apply toadmission to educational programming.43 The guidance from thesecases, however, seems to indicate that the questions must be nar-rowly tailored to obtain only information necessary to “protect theintegrity of the service to be provided and the public.”44

Institutions that act by expelling or disciplining students, staff,or faculty whose behavior is problematic are on stronger legalground when they do so based on specific threatening, disruptive, orincompetent behavior, rather than based on assumptions that cer-tain behavior means that the individual is unstable and should betreated adversely.45


whether placement was for benefit of student).46. See Lewin v. Medical College of Hampton Rds., 910 F. Supp. 1161, 1172 (E.D.

Va. 1996) (dismissal of medical student did not violate Section 504 as student failed toshow dismissal was based on perceived mental disability); Carlin v. Trustees of BostonUniv., 907 F. Supp. 509, 510–11 (D. Mass. 1995) (genuine issue of fact regarding wheth-er university was motivated to deny readmission based on mental disability); Esmail v.SUNY Health Science Ctr., 633 N.Y.S.2d 117, 117–18 (App. Div. 1995) (student's dis-missal premature for failure to comply with administrative procedures; dismissal was be-cause of drug addiction).

47. Gill v. Franklin Pierce Law Ctr., 899 F. Supp. 850, 855–56 (D.N.H. 1995) (lawstudent not otherwise qualified; law school is not on notice of need for accommodationsfor the condition of post-traumatic stress disorder simply because student indicated onhis application form that his parents were alcoholics).

48. DePaul Univ., 4 Nat'l Disability L. Rep. ¶ 157 (Off. Civ. Rts. 1993) (institutionmust at least consider effects of disability in evaluating student for readmission).

Excusing behavior and conduct that relates to mental or sub-stance abuse impairments is an area of much concern. These issuesarise when a student, staff, or faculty member is expelled, disci-plined, or terminated, and then it is learned that the individual hada mental or substance abuse impairment that caused the behaviorthat was the basis of the adverse action. Like a learning disabilitythat is unknown to the individual, it is not unlikely that an individ-ual may not know that he or she has a mental illness that causeserratic behavior. Even if the condition is known, individuals areunderstandably reluctant to ask for accommodations for mentalillness or for substance abuse impairments because of the stigmaattached to these conditions. Even if the condition is known, theneed for accommodations or the types of appropriate accommoda-tions may be unknown to the individual.

There has been some guidance on whether second chancesshould be given to students, staff, and faculty with mental or sub-stance abuse problems in the higher education context. What thisguidance, as well as guidance from cases arising in other contexts,46

seems to indicate, is that in most instances the institution will notbe required to excuse the inappropriate behavior or deficient perfor-mance.47 Perhaps the guidance from the OCR opinion involving astudent who discovered a learning disability after dismissal wouldbe appropriate to consider in this context.48 While the college or uni-versity should not be required to excuse the misconduct or academicfailure or other deficiency, the disability and its relationship to thedeficiency, as well as other factors such as the harm or potentialharm and the type of conduct at issue, should all be factors that the


49. For a comprehensive discussion of this issue, see Laura F. Rothstein, TheEmployer's Duty to Accommodate Performance and Conduct Deficiencies of Individualswith Mental Impairments under Disability Discrimination Law, 47 SYRACUSE L. REV. 931(1997).

50. No. 96C 6953, 1996 WL 680000 (N.D. Ill. Nov. 1, 1996).51. See id. at *2. The student must take 13 core courses and earn a minimum

grade point average. See id.52. See id. at *5.53. See id. at *17.54. See id. at *15.55. See Ganden, 1996 WL 680000, at **15–16.

institution must consider in its reinstatement or other grievanceprocedure.49

VI. ATHLETICS

Until recently, the area of participation in college athletics hasnot been an issue of substantial debate as a disability discriminationissue. Several recent issues, however, have received significant at-tention not only in the courts, but also in the national media. Theseissues are the disparate impact of NCAA eligibility rules and theeligibility of college athletes to participate in sports when they havesignificant medical or similar impairments. Both issues remainsomewhat unresolved because of ongoing litigation.

Two courts have addressed NCAA eligibility requirements andtheir impact on students with learning disabilities. The court inGanden v. NCAA,50 addressed a challenge by a swimmer who arguedthat the NCAA “core course” requirement51 violates Title III of theADA.52 The court denied the motion for a preliminary injunction.53

Significant to its ruling is the court's indication that Ganden proba-bly would not be able to prove that the accommodations he re-quested were reasonable.54 The modifications requested were substi-tuting remedial typing and computer courses, both as core coursesubstitutions and as a means to raise the student's GPA, and lower-ing the minimum GPA for eligibility.55 This opinion seems to supportthe general deference given to institutions in setting academicrequirements. It further supports the notion that institutions arenot required to fundamentally alter programs, in this case the privi-lege of participating in intercollegiate swimming. Of significance,however, is that the court indicated that the NCAA may be requiredto consider factors other than core course requirements for students


56. See id. at *16.57. See Percy Allen, UW's Butler Allowed to Finish Season, SEATTLE TIMES, Nov. 9,

1996, at B2 (discussing Butler v. NCAA, which is pending before Judge Carolyn Dimmickof the United States District Court for the Western District of Washington).

58. See id.59. Ganden, 1996 WL 68000, at *5.60. See Allen, supra note 57.61. See Grube v. Bethlehem Area Sch. Dist., 550 F. Supp. 418, 420, 424 (E.D. Pa.

1982).62. See Wright v. Columbia Univ., 520 F. Supp. 789, 793 (E.D. Pa. 1981) (prohibit-

ing denial of participation in intercollegiate football because of blindness in one eye);Evans v. Looney, No. 77-6052-(CV-SJ), slip op. (W.D. Mo. 1977) (prohibiting college fromprecluding students with vision in only one eye from playing football).

63. 897 F. Supp. 1387 (D. Kan. 1995).

with learning disabilities, and that such determination should beindividualized.56

Butler v. NCAA57 involved a student with a learning disabilityseeking eligibility to play intercollegiate football. The district courtissued a preliminary injunction allowing him to play, focusing on theirreparable harm, although indicating that ultimate proof of a viola-tion may be difficult.58

These decisions are not necessarily inconsistent, for both courtsmay ultimately uphold the eligibility requirements. Perhaps the dis-crepancy between the cases is explained through the impact on thestudent. In Ganden, the swimmer had been given partial qualifierstatus.59 In Butler, it appeared probable that the student would losethe scholarship and quit school.60

The cases raise the important issue of eligibility criteria forparticipation in higher education programs. The guidance fromthese cases indicates that institutions should be prepared to justifytheir eligibility requirements, but also should develop procedures formaking individualized determinations in exceptional cases.

Generally speaking, when a high school athlete with a seriousmedical condition seeks to participate in sports, the courts havedetermined that the student is not able to fully appreciate the seri-ousness of the risk and therefore, the court will not allow the stu-dent to waive liability for injuries that might occur if participation isallowed.61 In the college setting, however, courts have been muchmore likely to allow the athlete to waive liability and to partici-pate.62 Two recent college cases, however, were decided differently.

In Pahulu v. University of Kansas,63 the student wanted to par-ticipate in intercollegiate football although he had a condition that


64. See id. at 1388–89.65. See id. at 1394.66. See id.67. 101 F.3d 473 (7th Cir. 1996).68. See id. at 486.69. See id. at 476.70. See Knapp v. Northwestern Univ., 938 F. Supp. 508, 512 (N.D. Ill. 1996).71. See Knapp, 101 F.3d at 476.72. See id. at 477.73. See Kim Strosnider, Court Says University May Keep Player with Heart Ailment

off Its Basketball Team, CHRON. HIGHER EDUC., Dec. 6, 1996, at A62. This article notesthat Loyola Marymount University settled a lawsuit in the amount of $855,000 when theUniversity was sued after a basketball player suffered cardiac arrest during a game andlater died. See id.

74. See Knapp, 101 F.3d at 482.75. See 29 U.S.C. § 706(8)(B).76. See Knapp, 101 F.3d at 480.

created a high risk for permanent and severe neurological injury ifhe played.64 The court ruled that this high risk rendered him un-qualified to participate.65 The university did not violate discrimina-tion law by refusing to allow him to participate.66

Similarly, in Knapp v. Northwestern University,67 the court heldthat the university did not violate Section 50468 by refusing to allowa player with a heart ailment to participate in intercollegiate bas-ketball.69 The lower court held that Knapp should be allowed to de-termine for himself whether to take the risk.70 Knapp had an inter-nal heart defibrillator, which was implanted following heart failureat a pickup game. This incident occurred before he enrolled atNorthwestern, but after he was offered a basketball scholarship.71

Although Northwestern made good on its scholarship offer, the uni-versity refused to allow him to play because of concerns about hismedical condition.72 While the court's decision that Section 504 hadnot been violated may be correct in light of legitimate potential lia-bility concerns,73 the decision should be criticized for its holding thathe was not even disabled within the definition of the statute.74 Foran individual to be covered, there must be a substantial impairmentto one or more major life activities.75 The court held that playingintercollegiate basketball is not a major life activity, so Knapp wasnot protected by the statute.76 This decision represents an unfortu-nate rationale applied by a number of courts that fail to read thestatute's definition liberally.

These cases illustrate the tension frequently faced in higher


77. For a more detailed discussion of this issue, see Rothstein, supra note 7.78. 666 N.E.2d 1376 (Ohio 1996).79. See id. at 1379.80. See id. at 1386.81. See id.82. See id. at 1388.83. See, e.g., Stafford v. Radford Community Hosp., Inc., 908 F. Supp. 1369, 1376

(W.D. Va. 1995); Zevator v. Methodist Hosp., 7 Nat'l Disability L. Rep. ¶ 255 (S.D. Tex.1991).

84. See Stafford, 908 F. Supp. at 1376.

education and the difficulty in balancing legitimate concerns andinterests. The student athletes certainly should be given opportuni-ties to participate in intercollegiate athletics on a nondiscriminatorybasis, particularly when such participation may affect scholarships,access to education, and even later employment. Legitimate con-cerns about fairness and academic integrity when the individual isnot academically qualified and about protecting against injury mustbe balanced against these other interests in participation.

VII. HEALTH PROFESSIONAL PROGRAMMING

For colleges and universities with medical schools, nursingschools, or other health care professional programming, some uniqueissues arise. These issues include whether specific physical attrib-utes are essential to qualification for participation in the educa-tional programming, and the role of the educational program incertifying the individual as fit for the profession.77

The most highly publicized recent case on this issue is OhioCivil Rights Commission v. Case Western Reserve University MedicalSchool.78 The case involved an applicant to medical school who wasblind.79 The medical school found that it would be a fundamental al-teration to the program to accommodate her upon admission80 andfound that she was not otherwise qualified.81 After a lengthy legalchallenge, the Ohio Supreme Court ultimately agreed and found noviolation of the ADA in the denial of her admission.82

Other cases involving physical attributes have reached similarconclusions.83 Recent federal court decisions have concluded that anurse with a back injury who was unable to lift need not be reas-signed to accommodate her lifting restrictions84 and that a nursewith a leg injury was not qualified because the physical aspects of


85. See Zevator, 7 Nat'l Disability L. Rep. at ¶ 255.86. 939 F. Supp. 461 (W.D. Va. 1996).87. See id. at 464.88. See id. at 468.89. 910 F. Supp. 1161 (E.D. Va. 1996).90. See id. at 1163.91. See id. at 1171–72.92. See id.93. See id.94. See Altman v New York City Health & Hosps. Corp., 6 Am. Disability Cas. 73,

77 (2d Cir. 1996) (physician with alcohol problems posed direct threat to patients); Ju-dice v. Hospital Serv. Dist. No. 1, 919 F. Supp. 978, 979–81, 985 (E.D. La. 1996) (physi-cian who had relapses after treatment for alcoholism was not otherwise qualified forstaff privilege reinstatement); Alexander v. Margolis, 921 F. Supp. 482, 488–89 (W.D.Mich. 1995) (doctor whose license was suspended for distributing illegal drugs was notqualified because of criminal activities even if they related to his bipolar disorder);Sherman v. State, 905 P.2d 355, 360 (Wash. 1995) (physician terminated from universityhospital for chemical dependency); Moran v. Chassin, 638 N.Y.S.2d 835, 836–37 (App.

the position could not be eliminated.85

Learning disabilities and mental impairments and their effecton performance in medical school have been the subject of debate inrecent decisions. In Betts v. Rector & Visitors of the University ofVirginia,86 an applicant to medical school did not successfully com-plete the special admission program.87 His learning disability wasaccommodated during the program, and the court thus held that itdid not violate the ADA or Section 504 to refuse to admit him be-cause he was not academically qualified.88

The case of Lewin v. Medical College,89 is perhaps even moresignificant because it involved a student who had been admitted intothe regular medical school program, but who was ultimately dis-missed.90 His dismissal did not violate Section 504 because the insti-tution was able to show that he had substantial academic and clini-cal performance weaknesses.91 This demonstration was based onseveral evaluations, including observation of clinical sessions.92 Inaddition, absences and a weak knowledge base contributed to hisunacceptable level of performance.93

A number of cases have involved substance abuse problems andthe effect these have on health care professionals. These cases aresignificant to institutions of higher education because such institu-tions may have to certify fitness to state licensing boards. The recentcases generally are decided in favor of the institution that adverselytreats health care professionals who have substance abuse or mentalhealth problems that would affect patient safety.94


Div. 1996) (ADA not violated when medical review board permanently barred physicianwith epilepsy and emotional disorder from direct patient contact).

95. See Marc L. Kesselman, Putting the Professor to Bed: Mandatory Retirement ofTenured University Faculty in the United States and Canada, 17 COMP. LAB. L.J. 206,232 (1995).

96. See Charles B. Craver, Implications of the Elimination of Mandatory Retirementfor Professors, 16 J.C. & U.L. 343, 343 (1990).

97. See, e.g., Fisher v. Vassar College, 70 F.3d 1420 (2d Cir. 1996) (holding thatthe district court's finding of discrimination against married, female professor was clearlyerroneous), aff'd en banc, 114 F.3d 1332 (2d Cir. 1997); Pollins v. New Sch. for Soc. Re-search, 829 F. Supp. 584 (S.D.N.Y. 1993) (denying injunction in part because of the man-datory retirement exemption under the ADEA).

Common themes in these cases are that individualized deter-minations usually are required and the burden is on the institutionto justify why accommodations cannot be provided. When directthreat is involved, however, substantial deference is given to healthcare professional programs.

VIII. FACULTY ISSUES

For many jobs, colleges and universities do not provide particu-larly unique issues with respect to employment. Issues relating toclerical staff, custodial staff, and similar jobs do not generally in-volve unusual issues simply because the individual is employed by acollege or university.

For faculty members, however, there are some particularly in-teresting issues. There are several reasons for this. These reasonsinclude the fact that job requirements of faculty members and non-performance of these requirements may be much more difficult todefine than many other types of employment positions. In addition,higher education was given a longer time than most employers toeliminate mandatory retirement requirements.95 It is only in veryrecent years that colleges and universities, faced with ever tighten-ing fiscal constraints, are no longer able to absorb dead wood andincompetent faculty. For that reason, many institutions are lesswilling to tolerate inadequate performance.96 When adverse employ-ment treatment results, faculty members are increasingly turning tonondiscrimination prohibitions, including disability discriminationlaw, to challenge the actions of the institutions.

A number of interesting cases have resulted.97 The factual set-tings are too disparate to draw too many conclusions, but there are


98. See, e.g., Maddox v. University of Tenn., 62 F.3d 843 (6th Cir. 1995); Curtis v.University of Houston, 940 F. Supp. 1070 (S.D. Tex. 1996); see also McDaniel v. Missis-sippi Baptist Med. Ctr., 877 F. Supp. 321, 326 (finding the employee not qualified whenhe was fired during relapse because he had not been in recovery long enough to becomestable).

99. 62 F.3d 843 (6th Cir. 1995).100. See Maddox, 62 F.3d at 844.101. See id. at 848.102. See id. at 849.103. See id. at 845.104. 940 F. Supp. 1070 (S.D. Tex. 1996).105. See id. at 1080.106. See id.107. See Horton v. Board of Trustees, 8 Nat'l Disability L. Rep. ¶ 89 (N.D. Ill. 1996)

(community college professor who did not return to work after several absences due tochronic muscular headaches and stress was not qualified to perform the essential func-

some identifiable trends in these cases.One area of cases involves alcohol and substance abuse. Where

the adverse employment treatment is because of conduct or behav-ior, courts will generally uphold the institution, even where the be-havior relates to alcohol or drug use.98 The most important case onthis issue is Maddox v. University of Tennessee.99 The case involveda football coach who was discharged because of his egregious andcriminal conduct while driving under the influence of alcohol.100 Thecourt upheld the dismissal, finding that his dismissal was based onconduct, not on his alcoholism.101 The court also noted the signifi-cance of role modeling in a coaching position as a factor in whetherhis conduct made him unqualified.102 The case is particularly signifi-cant because the misconduct occurred off the job.103 A similar resultwas reached in the case of Curtis v. University of Houston.104 In thatcase a sociology professor claimed that he had been denied a promo-tion because of his former alcoholism.105 The court found that hishistory of nonperformance was the basis for the university's action,and there was no violation of the ADA or the Rehabilitation Act inthis instance.106

A number of cases have involved a variety of health and physi-cal problems in faculty and professional staff on campuses. Thecases demonstrate many of the typical issues of employment dis-crimination cases where disability is involved, including whether thecondition is even a disability and whether the performance problemsrender the individual unqualified or whether accommodations canbe provided.107


tions of the job); Mobley v. Board of Regents, 924 F. Supp. 1179 (S.D. Ga. 1996) (collegeprofessor wanted office moved because of air quality, which aggravated her asthma);Nedder v. Rivier College, 944 F. Supp. 111, 113 (D.N.H. 1996) (termination of facultymember claimed because of morbid obesity); Wagner v. Texas A&M Univ., 939 F. Supp.1297, 1308, 1311 (S.D. Tex. 1996) (motion to dismiss Title II claim by professor at col-lege of medicine denied; professor alleged depression and post-traumatic stress syndromeand requested accommodations to his health problems); Lewis v. Board of Trustees, 874F. Supp. 1299, 1301, 1305 (N.D. Ala. 1995) (librarian with kidney problems wantedschedule changed; pain and sleeplessness due to kidneys caused chronic lateness; condi-tion covered by ADA; motion to dismiss denied); Redlich v. Albany Law Sch., 899 F.Supp. 100, 106–07 (N.D.N.Y. 1995) (law professor who suffered stroke and lost all use ofleft hand, arm, and leg was not disabled within the Rehabilitation Act).

108. See Motkin v. Trustees of Boston Univ., 938 F. Supp. 983 (D. Mass. 1996).109. See id. at 985.110. See id. at 994.111. See id.112. Laura F. Rothstein, Section 504 of the Rehabilitation Act: Emerging Issues for

Colleges and Universities, 13 J.C. & U.L. 229 (1986).

One recent case involved a faculty member who had been hiredonly for teaching responsibilities.108 When he was terminated forbehavior that included sexual harassment, sexual assault, and viola-tion of campus policies on serving alcohol to underage students, heclaimed that his behavior was a result of a psychological disordercausing “disinhibition.”109 Not only did the court reject this as a jus-tification for his actions, but also found that the accommodations herequested, removing all teaching responsibilities, was not reason-able.110 Teaching is an essential function of the position.111

These issues may be particularly problematic, however, forhigher education faculty situations because there may be requestsfor deferment of tenure decisions, promotion discrimination claims,and other disparate treatment claims that are not readily addressedby other employment law cases where the job requirements aremore clearly defined.

IX. SUMMARY AND CONCLUSIONS

In 1986, the Author, in an early article on disability discrimi-nation in higher education,112 suggested a number of steps to pre-pare university counsel to meet the challenges of disability rightsissues in the context of higher education. Because of the continuedactivity in the area of disability discrimination in higher education,these suggestions are still valid a decade later and could be appliedand adapted by university counsel as well as administrators respon-


113. These suggestions are adapted from those included in the 1986 article. See id.at 262–63.

114. See id. at 263.

sible for issues including admissions, student services, campus ac-cess, housing, personnel, and other areas.

These suggestions include the following:113

1) Keep current on judicial developments in this area. There isa growing body of case law. In addition, opinion letters fromthe Office for Civil Rights provide valuable guidance on avariety of issues.

2) Remember that it is not only students, staff, and facultywho are protected from discrimination. Events held for thepublic, such as commencement and continuing educationprograms, are subject to the nondiscrimination require-ments as well. Services provided to the public, such as med-ical care and legal aid, are also covered by the nondiscrimi-nation mandates.

3) Ensure that a good relationship exists with appropriateexperts either on campus or as consultants. Individualswith expertise in barrier removal, providing auxiliary aidsand service, and evaluating documentation of disabilitiesmay need to be consulted on regular or sporadic bases. Es-tablishing a system for such consultation is essential.

4) Involve individuals with disabilities and those with sensi-tivity to and expertise regarding disability issues in plan-ning for access and accommodation, as well as in resolvinggrievances.

5) Ensure that a system for responding to requests for accom-modations and for resolving grievances is in place, is “userfriendly,” and is communicated clearly and regularly to stu-dents, staff, faculty, and the relevant public audiences.

In addition, institutions would do well to establish fundamentalrequirements of the program for students, staff, and faculty. Theyshould also document incidents of inadequate performance and mis-conduct. This information will be essential to demonstrating that anindividual is not otherwise qualified.

It is as true today as it was in 1986 that good faith cannot pre-clude litigation,114 but it is likely to prevent a significant amountand it is likely to result in favorable outcomes when legal challenges


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