A school's obligations under § 504 and the ADA begins during the admissions process. Applicants denied admission to a school have frequently alleged that they were discriminated against due to their disability. OCR has rejected such claims where the school can show that the applicants' academic record was substantially weaker than those of admitted students. It has also found, however, that schools violate § 504 and the ADA when they make preadmission inquiries about applicants' disabilities, place lower weight on standardized test scores achieved under conditions designed to accommodate disabilities, and fail to consider students' efforts to address their disabilities when they seek readmission after being academically dismissed. In addition both OCR and the courts have held that applicants with unquestioned academic qualifications for a particular program can be denied admission because they are not "otherwise qualified" due to their physical limitations.
A. Preadmission Inquiries
The regulations state that colleges and universities may not make preadmission inquiries regarding whether applicants have a disability unless the school is (1) taking remedial action to correct effects of past discrimination or (2) taking voluntary action to overcome effects of conditions that resulted in limited participation in the past. OCR has frequently cited schools for preadmission inquiries not made for one of the two allowed purposes.
This is true even where the inquiry states that it is voluntary and has no effect on admission. For example, in Glendale Community College (AZ) the school's "Admission Form" asked if applicants had "any disability or handicap" and provided a place to check yes or no. A list of disabilities with code numbers followed, and applicants were requested to enter the appropriate code(s). The form stated that responses were voluntary, were used to comply with federal reporting, and had no effect on admission to the school. Even with these qualifications, OCR concluded that the inquiries were in violation of the regulations.
The prohibition on disability-related preadmission inquiries applies to inquires made concerning applicants' known behavioral problems. In Pennsylvania State Univ. an applicant identified himself to university personnel as having been diagnosed as a paranoid schizophrenic, and behaved in a disruptive manner during his contacts with them -- at times using threatening and abusive language. The university sent the applicant a letter asking for, among other things a release of information from psychiatrists and several letters of reference. This letter was sent in connection with the university's "Policy on Pre-Admission Review for Applicants With Known Behavioral Problems", which was designed to "protect the members of the university community by limiting the risk of disruptive or harmful activities."The university implemented the policy where known facts suggested "an applicant's behavior could endanger the health, safety or property of university community members, and adversely affect the university's educational mission."
OCR held that the policy, as administered, violated § 504 because the university did not distinguish between applicants with handicapping health conditions which could pose a substantial risk of harm and those who merely had a history of certain handicapping conditions. According to the OCR:
Under current practice the University has conducted pre-admission inquiries based solely upon undocumented indications of the existence of a condition, whether or not there is actual evidence that the individual has engaged in harmful or disruptive behavior. Therefore, OCR finds that the University's implementation of its Policy violated the Section 504 regulation at 34 C.F.R. 104.42(a) and (b)(2) and (c)(4).
In North Dakota State Univ., however, OCR held that applicants to a counseling program could be asked about past mental health treatment. The counseling program's bulletin stated that as a part of the application process it "reserve[d] the privilege of obtaining information about the student's professional competence from qualified professionals." During the course of an admissions interview, the school learned that an applicant had received substantial personal counseling, which included three psychiatrists, several counselors, and nontraditional therapies. The school requested that the applicant grant it access to her mental health professionals in order to determine whether she had adequately worked through her personal problems to the extent that she would be able to handle the emotional, personal, and psychological issues encompassed as part of the counseling program. The applicant refused, and the school stated that without this information it could not complete its processing of her application.
OCR held that this request did not violate the prohibition on preadmission inquiries. While the admissions interview form for the counseling program included an inquiry as to the applicant's receipt of personal counseling, it made no direct inquiry regarding a "handicap." OCR found:
Based on interviews with staff, and OCR's file review, there is no evidence to suggest that the purpose of the inquiry in the interview is to ascertain whether the applicant is handicapped, that is, has a physical or mental impairment which substantially limits one or more major life activities. The purpose of the inquiry in the admissions interview is to determine whether the applicant is an appropriate candidate for the program, has the motivation and emotional stability to be a human services worker, and has adequately resolved any personal/therapeutic issues before attempting to counsel others with similar issues.
Broad questions about past mental health history are unlikely to be allowed outside a counseling or similar program, however. Several recent decisions have held that questions asking bar examination and medical board applicants whether they have been treated for any mental, emotional or nervous disorders are violative of the ADA. For example, in Clark v. Virginia Bd. of Bar Examiners the court found that a question on past mental health problems violated the ADA because it forced applicants with mental disabilities to subject themselves to further inquiry and scrutiny not required of other applicants, and the board could not show that the question was necessary to the performance of its licensing function.
The court noted, however, that the Board of Bar Examiners could fashion other questions more directly related to behavior that can effect the practice of law without violating the ADA. Accordingly, counseling, law, medical and other programs may be permitted to make narrowly drawn inquiries into specific behavioral problems which could effect on applicant's ability to succeed in the program and afterwards.
Most undergraduate and even graduate programs, however, should refrain from making any pre-admission inquiries regarding disabilities. The focus during the admission process should be on qualifications and qualities expected of all students. Concerns about accommodations for disabled students can be addressed -- on a confidential basis -- after admission, and it will be the student s responsibility to notify the school of the disability, request academic adjustments, and provide documentation supporting a disability-related need for the requested adjustment.
2. Programs for the Disabled
The bar on preadmission inquiries does not apply to college or university programs operated specifically for the disabled. In Halasz, the court rejected a claim by an applicant -- who had contacted the university and asked for information about a special program for students with learning disabilities -- that questions on the school's application form regarding the special program violated the preadmission inquiry prohibition. The court noted that the school's application form did not require a handicapped applicant to disclose his or her handicap. Instead, applicants wishing to be considered for the special program -- which was only available to the learning disabled -- could indicate that on the form.
The court found that this preadmission inquiry was not in violation of the regulations:
When a university operates a program specifically for the handicapped, it clearly needs to know about an applicant's handicaps before it can make a decision about admission to the program, for the program may be appropriate for some handicapped individuals and not for others. Section 504 is designed in part to assure that handicapped applicants and students are not, because of their handicaps, denied the benefits of programs offered by federally subsidized universities to non-handicapped students. None of the purposes of the statute would be served by enforcing the inquiry prohibition when a university offers a program available only to handicapped students and a handicapped person seeks to participate in that program.
Thus, schools which run special programs for students with disabilities, may ask students applying for them about their handicaps. Schools should be careful, however, to make application to such programs -- and disclosure of the disability -- an option on the general application form. And, that form should clearly specify that only students interested in the special program need provide disability information.
B. Standardized Tests
The Halasz court also rejected the applicant's challenge to the university's use of the Scholastic Aptitude Test (SAT) in evaluating his admission. The applicant pointed to a regulation prohibiting the use of any tests or criteria for admission which have a disproportionate, adverse effect on handicapped persons unless they have been validated as a predictor of success in the education program and alternate tests which have less disproportionate, adverse effects are not shown to be available. The court found no violation of this regulation because the SAT's availability in special formats for the handicapped showed it does not have a disproportionate, adverse effect on handicapped persons.
The court also rejected the student's claim that the university violated 34 C.F.R. § 104.42(b)(3), which provides that a school must assure itself that admissions tests are selected and administered so as to insure that they accurately reflect handicapped applicants' aptitude or achievement level. The court noted that this regulation speaks only of "admission tests" -- rather than "any test or criterion for admission" like 34 C.F.R. § 104.24(b)(2) -- and held it applies only to admission tests administered by a school and not to other criteria of admission, such as standardized tests. It further held that the regulation does not impose an obligation on colleges and universities to oversee the administration of standardized tests to all of their applicants to assure that they are nondiscriminatory.
In SUNY Health Science Ctr. at Brooklyn - College of Medicine (NY), however, OCR emphasized that schools may not give different weight to scores achieved on standardized tests taken under nonstandard conditions. In SUNY Health Science Ctr., the applicant's score on the Medical College Admissions Test (MCAT) was marked with an asterisk by the administering body because it had been given under nonstandard conditions. Members of the admissions committee admitted that they either devalued asterisked MCAT scores or weighted them in a different and lesser manner than other scores. OCR found that this practice was in violation of 34 C.F.R. §§ 104.4(a) and (b)(1)(ii), (iv) and 104.42(a).
In University of Michigan, however, OCR made it clear that the mere fact a school has notice that a student's test scores were achieved under nonstandard conditions does not cause a § 504 problem. The applicant there challenged a law school's use of information that he had taken the Law School Admissions Test (LSAT) under nonstandard conditions due to his learning disabilities.
The associate dean for admissions told OCR that the law school viewed the provision of non- standard testing conditions as evidence of an applicant's status as a handicapped person, but also stated "[t]he Law School relies on the LSAT administrators to determine the test conditions appropriate for any applicant, and uses the test score in the same way as any other." This satisfied OCR which stated that its
investigation established that the Law School did not deny any applicant admission because he or she took the LSAT under nonstandard conditions. The evidence revealed that the Law School made no adjustments in the LSAT scores of these applicants to reflect the fact that they had taken the LSAT under nonstandard conditions and that the Law School used these LSAT scores to compute the sorting index scores of these applicants in the same way that it computed the sorting index scores of other applicants. The evidence further established that the Law School reviewed the applicants who took the LSAT under nonstandard conditions according to the same admissions procedures and criteria that it used for other applicants. Thus, OCR determined that the Law School's decisions to reject certain applicants who took the LSAT under nonstandard conditions were based on the Law School's multiple admissions criteria, including sorting index scores reflecting LSAT scores and GPAs, and not on the fact that an applicant took the LSAT under nonstandard conditions.
Other schools would be wise to follow Michigan s example. Applicants who take standardized tests under nonstandard conditions should be evaluated using the same admissions procedures and criteria used for all other applicants.
The bar against discrimination in admission also applies to students seeking readmission after being dismissed for academic problems. As with admissions decisions, OCR and the courts have most often found that denials were not discriminatory. OCR has also found, however, that schools must carefully consider the effects of the disability in evaluating a disabled student's readmission request, and need to provide academic adjustments to students during any "reexamination" period.
1. School Must Consider Effects of Disability in Evaluating Student for Readmission
In DePaul Univ. (IL) OCR found that a school violated § 504 where it failed to consider the steps a student had taken toward addressing her learning disability in evaluating her request for readmission. The student had suffered from learning problems throughout her educational career, but was not evaluated for learning disabilities until late in her second semester of law school. She then began receiving services from the university's undergraduate learning strategies clinic. In addition, she received additional time for her final examinations for the spring semester. Her semester GPA, however, was still below the 2.0 required, and she was academically dismissed.
In her subsequent petition for readmission, the student attributed her poor academic performance to dyslexia. She provided an explanation of her background and how she struggled to compensate for her learning disability prior to law school; her recognition of her handicap while in law school; how the handicap had manifested itself; and the techniques she was learning to compensate for her areas of deficiency. She also discussed her areas of strength in processing ideas, and emphasized her willingness to work hard and her commitment to law. A copy of the her evaluation by the undergraduate learning strategies clinic was included with the petition.
OCR found that the readmission committee had discriminated against the student when it denied her petition because its decision was based more on stereotype than factual information. OCR noted that no member of the readmission committee had any training or experience in evaluating students with learning disabilities, and none of them spoke to any experts in the field of learning disabilities or contacted the undergraduate learning strategies clinic concerning its evaluation of the student. In addition, none of the committee members interviewed by OCR recalled that the student did not begin receiving academic adjustments until three and one-half weeks prior to the end of her second semester. Despite this, one committee member stated that the student's condition did not really interfere with learning in the past, and was "now just an excuse for her poor grades." Two other members stated that they believed the student could not raise her GPA to the required 2.0 even with adjustments, and another stated that he "personally felt that she got good accommodations." Based on these statements and how the committee had handled other readmission applications, OCR concluded that the school had discriminated against the student in denying her readmission.
To avoid such a conclusion regarding their readmission decisions, other schools should be careful to look not only to the student s past performance but also to steps taken to identify and compensate for disabilities which may have impacted it. Decision makers should consult with experts on the identified disability to determine if there are accommodations which will allow the student to achieve results different from their past performance.
2. Academic Adjustments Must be Provided During Reexamination Period
OCR has also found that schools are required to provide academic adjustments during a "reexamination" period. The student in that case was admitted to the school in September 1990 through its Legal Education Opportunity Program (LEOP). In January 1991, he was diagnosed as having a learning disability by a specialist employed by the school. After the diagnosis, the student began receiving additional services through LEOP which included note-takers for two of his classes, counseling sessions with a learning disability specialist, tutoring services in small groups, a one-on- one tutor for two of his classes and participation in Saturday practice examination sessions. He also received academic adjustments for taking examinations. Despite these accommodations, the student failed to achieve the minimum GPA required to continue at the school.
In his petition for readmission, the student stated that his poor performance was due to the late diagnosis of his learning disability and insufficient time to improve his study skills. The school denied the petition for readmission, but admitted him to "reexamination status" for the following school year. Reexamination status meant that the student could sit in on classes and retake the final exams in the courses he had failed the previous year. Students in reexamination status are not enrolled as regular students and pay no tuition or fees for the year.
At the beginning of his reexamination status, the student requested the same academic adjustment and auxiliary aids that he received during his first year of regular enrollment. The school notified him that he would receive the services of the LEOP office (discussion groups, tutoring, and practice exam sessions) and copies of notes taken in classes where a note-taker was already assigned, but also stated that it would not provide the services of a learning disability specialist at the school's expense.
The student received the same academic adjustments for retaking his examinations as he had received the prior year, but again failed to receive the required grades. His subsequent request for readmission was denied.
In evaluating the student's discrimination complaint, OCR rejected the school's position that it did not have to provide academic adjustments and/or auxiliary aids requiring "out-of-pocket" expenses to students on reexamination status because they were not enrolled and not paying fees or tuition. OCR found that because reexamination status was an official academic program at the institution the school was required to provide students with disabilities in reexamination status an equal opportunity to achieve the same results as students without disabilities. Therefore, the school was required to comply with the § 504 and ADA requirements to provide academic adjustments and auxiliary aids to ensure that the student was not discriminated against in the reexamination program.
Despite this finding, the OCR held that, based on all of the evidence presented by the school, it had not discriminated against the student on the basis of his disability when it denied him readmission. OCR found that the readmission committee applied established criteria to the student's petition. Further, the committee members all indicated that they were aware of the student's learning disability and the accommodations that he received, and took those factors into consideration when making the readmission decision.
Other schools with reexamination or similar programs should not rely on the readmission committee to do such a thorough job. Instead, they should provide students in such programs with the same academic adjustments and auxiliary aids provided to students in all other programs at the school.
D. Students with Physical Limitations May Not Be "Otherwise Qualified"
Beginning with Davis, courts and the OCR have held that applicants may be denied admission to clinical programs where they lack physical qualifications deemed essential to participation in the programs. In Davis, an applicant with a serious hearing disability sought admission to a registered nursing program. The school denied her admission based on evidence which showed that her hearing limitations could interfere with her safely caring for patients. The Supreme Court upheld this decision noting:
it is undisputed that [Davis] could not participate in Southeastern's nursing program unless the standards were substantially lowered. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.
One may admire [Davis'] desire and determination to overcome her handicap, and there may well be various other types of service for which she could qualify. In this case, however, we hold that there was no violation of § 504 when Southeastern concluded that [Davis] did not qualify for admission to its program. Nothing in the language or history of § 504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been any showing in this case that any action short of substantial change in Southeastern's program would render unreasonable the qualifications it imposed.
A state court recently reached a similar decision concerning a blind medical school applicant. The applicant, Cheryl Fischer, had received her undergraduate degree from Case Western Reserve University ("CWRU") in chemistry with minors in nutrition and physics. While completing her undergraduate degree, Fischer determined that she wanted to become a psychiatrist. After successfully completing the MCAT, she applied to the CWRU School of Medicine. Knowing that her blindness was an impediment to her medical school admission, Fischer advised members of the admission committee during her interviews that another blind individual, Dr. David Hartman, a psychiatrist, had successfully completed Temple University School of Medicine in 1976. No one at CWRU, however, attempted to contact either Dr. Hartman or Temple in an effort to determine if reasonable accommodations could be made to permit Fischer's admission. That admission was ultimately denied.
In its response to Fischer's complaint challenging that denial, CWRU conceded that it did not consult with an expert in working with the visually impaired and did not do any research into the area of technical advances for the teaching of visually impaired students before it reached its decision. Instead, one of the faculty members who interviewed Fischer testified that her decision on whether to admit Fischer was based merely on her personal opinion, and that from the outset she thought it was "ridiculous" that a blind person could complete medical school.
Fischer presented Hartman as her primary witness to show that accommodations could be made. CWRU countered with the testimony of a Temple faculty member concerning the difficulty of making those accommodations. Hartman testified that, although totally blind since age 8, he successfully completed the same courses, curriculum, and examinations as all other students at Temple, albeit with some accommodations. No courses or clerkships were waived. The accommodations made by Temple included the use of raised-line drawings, models, instructive descriptions, tape-recorded books, personal tutoring, and the assistance of graduate students.
A Temple faculty member, Dr. Troyer, also testified about the accommodations made for Hartman. Troyer stated that Hartman required special assistance in every class, especially in laboratory sessions. He further testified that every lecture was modified to be more descriptive to Hartman, and that every exam was modified as well. Troyer also stated that much of his office time was taken up by Hartman -- to the prejudice of other students -- and that for his entire medical schooling Hartman required 2-3 times as much faculty counseling as other students. Troyer stated he would have reservations about admitting another blind student because it simply would not be fair to the entire class of students, many of whom also require faculty counseling.
Hartman did not dispute that he received substantial out-of-class assistance from faculty members, with many spending two-three hours per week with him after class. He also stated he did no dissection at Temple, and was given separate exams in each class. He did less laboratory work than other students during his surgery clerkship, and relied on fellow students to assist him in every class. In his clerkships he relied on nurses, other students, and patients to relate what they saw during physical exams, to read charts, and to physically assist him. He relied on radiologists to read x-rays for him
The court compared these accommodations made for Hartman with CWRU's requirements and concluded:
It is clear from the record below that CWRU requires its students to be prepared to deal with emergency situations. At CWRU, according to Drs. Lam and Kirby, each medical student must have the ability to read charts and x-rays, place an IV in a patient, draw blood, inject medication and perform CPR in emergency situations. This was not required at Temple. Further, while at Temple, Hartman was permitted to use nurses, graduate-assistants, fellow students, or even the patient, as an intermediary, however, at CWRU, the standards would require someone of a greater medical background than the student to act as the student's intermediary.
It is also clear from the record that CWRU admission personnel were aware of the 'Hartman experience' at Temple as Dr. Lam and Fischer discussed it at their interview. Dr. Lam then testified that she imagined that accommodations could be made for Fischer, but that those accommodations necessary to graduate Fischer would leave her with no meaningful medical experience.
Based on this evidence the court concluded:
Although Fischer would appear to be a truly remarkable student, the accommodations required to graduate her from CWRU would not only be unduly burdensome, but would leave her with far less than the full medical experience required of CWRU graduates.
Accordingly, it held that CWRU had not discriminated against Fischer by denying her admission. Other schools denying admission to students based on their physical limitations must be prepared to present evidence similar to that introduced by CWRU. Specifically, they must be able to show that the student would be unable to perform essential parts of the educational program, and that changing them would leave the student without the ability to perform as an independent professional upon graduation.