Disabled Students in Higher Education
Administrative and Judicial Enforcement of Disability Law
22 Journal of College and University Law 989-1043 (1996)
Visiting Assistant Professor
University of Illinois College of Law
"Otherwise qualified"; "reasonable accommodation"; "substantial modification". The imprecision of these phrases from the statutes, regulations and case law prohibiting colleges and universities from discriminating against students with disabilities is a source of frustration for both administrators and students. Administrators complain that the "laws often are vague about how far universities must go to accommodate students". At the same time, "the hazy wording makes it difficult for students to understand what they can expect from the university".
In the five years since the Americans with Disabilities Act was signed into law on July 26, 1990, however, a number of administrative and court decisions interpreting these vague phrases have clarified the rights and responsibilities of both students and schools. This article examines how these decisions have built on the statutes and regulations prohibiting disability-based discrimination to produce a clearer definition of what students may ask for and schools must provide in the areas of admissions, academic adjustments, auxiliary aids, access and other issues facing colleges and universities.
I. The Statutory and Regulatory Framework
The analysis of students' and schools' rights and responsibilities must begin with the two federal laws which prohibit discrimination against individuals with disabilities. The first is 504 of the Rehabilitation Act of 1973, which provides:
No otherwise qualified individual with a disability. . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....
Similarly, Title II of the Americans with Disabilities Act states:
[N]o qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.
This same prohibition is applied to private entities through Title III of the ADA which bars the disability-based denial of the benefits of the services, programs, or activities of "public accommodations", including schools.
A. Finding the Proper Balance Under 504 and the ADA
According to one commentator, the ADA is "based on the premise that disability is a natural part of the human experience and in no way diminishes the rights of individuals to live independently, pursue meaningful careers, and enjoy full inclusion in the economic, political, cultural and educational mainstream of American society."
In Alexander v. Choate the Supreme Court recognized that 504 was based on a similar premise. It also noted, however, that:
any interpretation of section 504 must . . . be responsive to two powerful but countervailing considerations -- the need to give effect to the statutory objectives and the desire to keep section 504 within manageable bounds.
The Court's first attempt to balance these considerations occurred in Southeastern Community College v. Davis where a plaintiff with a major hearing disability sought admission to a college to be trained as a registered nurse. The college denied her admission, citing concerns that she would not be capable of safely performing as a registered nurse even with full-time personal supervision. The Court held that the college was not required to admit her because it appeared that she would not benefit from any modifications required under the relevant 504 regulations. In doing so, it
...struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of federal grantees in preserving the integrity of their programs: while a grantee need not be required to make "fundamental" or "substantial" modification to accommodate the handicapped, it may be required to make "reasonable" ones.
The ADA includes a similar balancing test. It defines discrimination in Title III as:
(ii) a failure to make reasonable modifications in policies practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modification would fundamentally alter the nature of such goods, services, facilities, privileges, advantages or accommodations.
(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered or would result in an undue burden.
The decision as to whether colleges and universities have properly balanced these interests is most often made by the Department of Education's (DOE) Office for Civil Rights (OCR) which is charged with enforcing 504 and the ADA and investigating student's complaints. Administrative rules interpreting 504 were promulgated in 1977 over strong objections from many colleges and universities, and they are now applied to both it and the ADA. These regulations proscribe certain acts as discriminatory and prescribe others as necessary to meet the reasonable accommodation requirement.
The regulations prescribe minimum standards for colleges and universities in six areas: (1) admissions and recruitment; (2) treatment of students; (3) academic adjustments, including the provision of auxiliary aids; (4) housing; (5) financial aid and employment assistance and (6) nonacademic services. This article provides an overview of how OCR and the courts have applied these regulations in responding to student complaints brought since the ADA was signed into law.
B. Damages Available Under 504 and the ADA
The importance of compliance with these regulations has taken on added significance in recent years as courts have recognized the availability of monetary damage claims under 504. In Wood v. President & Trustees of Spring Hill College the court-- citing the Supreme Court s decision in Franklin v. Gwinnett County Pub. Sch. allowing damages under Title IX of the Education Amendments of 1972 -- held that a school could be subject to damages under 504 when students can prove intentional discrimination. This holding, while limited because of the requirement of a showing of intentional discrimination, is notable because Title II of the ADA specifically adopts the enforcement mechanism used in 504 cases. The possible availability of monetary damages, no matter how limited, will likely encourage students to bring more 504 and ADA suits rather than seek relief through OCR. This likelihood is increased because there is no requirement that they exhaust administrative remedies before filing such claims. In addition, 505 of the Rehabilitation Act also provides that the prevailing party in such a suit may recover attorney s fees.
Remedies under Title III of the ADA are more limited. It allows a person who has been subject to discrimination or has reasonable grounds for believing that he or she is about to be subject to discrimination to file a civil action for injunctive relief. Remedies available in a private suit include a permanent or temporary injunction or a restraining order or other order to make facilities readily accessible and usable by individuals with disabilities, provide auxiliary aids or services, modify a policy, or provide for alternative methods of barrier removal. Compensatory and punitive damages and civil penalties, however, are not available.
The prevailing party in an action under the ADA may recover attorneys' fees in addition to any other relief granted. The defendant, however, may not recover attorneys' fees unless the court finds that the plaintiff's action was frivolous, unreasonable, or without foundation. Attorneys' fees include litigation expenses such as expert witness fees, travel expenses, and costs.
The ADA empowers the Justice Department to investigate alleged violations of Title III and undertake periodic reviews of compliance of covered entities. In suits brought by the DOJ, the court may award any of the remedies allowed in private suits and may also, if requested by the Department, award monetary damages to individual victims of discrimination. These monetary damages do not include punitive damages but do include all forms of compensatory damages, including out-of-pocket expenses and damages for pain and suffering. In addition, to vindicate the public interest, the court may assess a civil penalty against the covered entity in an amount not exceeding $50,000 for a first violation and not exceeding $100,000 for any subsequent violations. In considering what amount of civil penalty, if any, is appropriate, the court is required to give consideration to any good faith effort or attempt by the covered entity to comply with its obligations under the ADA.