CODI: Cornucopia of Disability Information

College Students with Disabilities: Litigation Trends

College Students with Disabilities: Litigation Trends
Laura F. Rothstein*

Copyright (c) 1993, The University of Texas at Austin School of Law
Publications, Inc. unless otherwise noted. In addition to the rights
of fair use granted by law, the owner or the copyright to each article
published in this volume, except as otherwise expressly noted, grants
permission for copies of the article to be made for scholarly research
and for classroom use in a nationally accredited law school, if 1)
copies are distributed at or below costs: 2) the author and journal
are identified; and 3) proper notice of copyright is affixed to each
copy of the article. Correspondence should be addressed to The Review
of Litigation, 727 E. 26th St., Austin, Texas 78705-3299. Telephone
(512) 471-4386. Fax: (512) 471-6988.

Copyright (c) 1993 by Laura F. Rothstein.

* Professor of Law, University of Houston Law Center. B.A. 1971,
University of Kansas; J.D. 1974, Georgetown University Law Center. The
author teaches a course in Disabilities and the Law. She has written
numerous articles and books on disability law, has served on a number
of advisory boards and committees, and has spoken at many national
conferences on disability issues in higher education. She was
Associate Dean for Student Affairs at the University of Houston Law
Center from 1988 to 1993, where she implemented many of the legal
requirements involving students with disabilities for students and
applicants at the Law Center.


Table of Contents

I. Introduction
II. Statutory Requirements
III. Major Areas of Impact on Colleges and Universities
A. Admissions
B. Programs and Services for Enrolled Students
C. Physical Facilities
D. Student Records
IV. Likely Areas of Future Litigation
V. Conclusion


I. Introduction

Although the law has prohibited colleges and universities from
discriminating against students with disabilities for approximately
two decades, there was no substantial litigation in this area until
1990. There are two primary explanations for this recent emergence in
litigation. First, the number of college students with disabilities
has increased dramatically.[1] This increase is arguably a result of
special education laws passed in the mid-1970s.[2] Second, the passage
of the Americans with Disabilities Act (ADA)[3] in 1990 has increased
awareness of the availability of protections from discrimination.
Although the ADA did not add significantly to the substantive
protections afforded college students with disabilities, the media
attention surrounding its passage enhanced the visibility and
awareness of this issue.

This Article provides an overview of the two major statutory
provisions relating to college students with disabilities: the ADA and
Section 504 of the Rehabilitation Act.[4] Part II of the Article
highlights the key statutory concepts affecting college student
issues. Part III reviews the major areas of impact for colleges and
the recent court decisions in those areas.[5] Finally, Part IV
suggests likely areas of future litigation.

II. Statutory Requirements

The ADA [6] prohibits discrimination on the basis of disability by
employers (Title I),[7] by state and local agencies (Title II),[8] and
by public accommodations (Title III).[9] The ADA essentially provides
no more protection than does Section 504 of the Rehabilitation Act of
1973.[10] Under Section 504, programs receiving federal financial
assistance are prohibited from discriminating on the basis of
disability.[ll] While many states have enacted similar prohibi
tions,[l2] most complainants rely on federal law to resolve dis

Both the ADA and Section 504 protect individuals with physical or
mental impairments that substantially affect one or more major life
activities,[l4] individuals with a record of such an impairment, and
those who are regarded as having such an impairment.[l5]

Individuals must be otherwise qualified to carry out the essential
requirements of the program, despite the impairment, with or without
reasonable accommodation.[16] Institutions are not required to make
fundamental alterations to their programs, nor are they required to
provide accommodations that would be unduly burdensome either
administratively or financially.[l7]

Key concepts shared by both the ADA and Section 504 include not only
the nondiscrimination mandate, the reasonable-accommodation
requirement, and the definition of who is protected, but also the
principle of integration. The statutes intend that programs be
provided in the most integrated, appropriate setting that is
reasonably possible.[18]

As indicated previously, Section 504 of the Rehabilitation Act
required colleges and universities to do much of what is now required
under the ADA. Under Section 504, all colleges receiving federal
financial assistance were to conduct a self-evaluation by 1978.[19]
With respect to architectural barriers, Section 504 does not require
that every aspect of every facility be made accessible, but that the
program should be accessible when viewed in its entirety.[20] This
might mean relocating a class or providing a service in a different
location in a particular case. New construction, however, is subject
to new accessibility guidelines.[21] Colleges and universities subject
to Section 504 must develop and implement practices, policies, and
procedures to carry out the nondiscrimination mandate.[22]

In recognition of the detailed regulations for postsecondary education
provided under Section 504, little guidance has been added in the
statutory language or regulations of the ADA. Public
institutions of higher education are subject to Title II of the
ADA,[23] and are required to conduct additional self-evaluations to
address those issues not previously covered by the Section 504 self-
evaluation.[24] Private colleges are subject to Title II of the
ADA,[25] and are required to remove barriers to the extent such
removal is readily achievable:[26] that is, easily accomplishable
without much difficulty or expense.[27]

Because of an amendment to the Rehabilitation Act, states are no
longer immune from Section 504 actions.[28] The ADA has a similar
provision.[29] Both statutes provide for private and governmental
enforcement,[30] and the range of remedies available under both
statutes includes monetary damages, injunctive relief, and attorney's

III. Major Areas of Impact on Colleges and Universities

This Part reviews the most significant areas of college and university
programming affected by the Rehabilitation Act and the ADA. These
areas are selected both because of the large number of students
affected and because of recent litigation involving these areas. Many
other programming issues affected by these statutes should be reviewed
to ensure full compliance.[32]

A. Admissions

Both the Rehabilitation Act and the ADA clearly indicate that
institutions of higher education must not discriminate in the admis
sions process, including the recruitment, application, testing,
interviewing, and decision-making processes.[33] The use of stan
dardized tests and other eligibility criteria that tend to screen out
individuals with disabilities is not prohibited, but such criteria
must be validated as predictors of success.[34] The criteria must
measure abilities and aptitudes, rather than reflect impairments,
except where those impairments affect skills that the tests are
intended to measure.[35] It is also impermissible to make preadmission
inquiries about whether an applicant has a disability unless it is to
remediate past discrimination.[36] After admission. such inquiries may
be made on a confidential basis.[37]

Several recently reported decisions address these issues. A number of
these cases relate to the use of standardized tests for admissions
purposes. Before the ADA went into effect, most providers of
standardized tests (such as the Educational Testing Service) were not
directly affected by disability discrimination statutes because they
did not receive federal financial assistance, and therefore were not
covered by the Rehabilitation Act. Because they are covered under the
public-accommodations section of the ADA, however, standardized
testing programs now have direct obligations to provide reasonable
accommodations in test administration.[38] Aside from the issue of
reasonable accommodations, there is the initial question concerning
whether a particular test can be required at all.

The most instructive recent decision concerning the requirement of a
test is Pandazides u Virginia Board of Education,[39] which involved a
requirement that a teacher take and pass a national teacher competency
exam to complete her teacher certification requirements. The applicant
claimed that she had a mental condition and a learning disability and
requested that she be exempted from one of the standardized tests.[40]
The court questioned whether she had a disability entitling her to
protection under discrimination statutes, and noted that the
Educational Testing Service had already made reasonable
accommodations.[41] The court held that she should not be exempted
from the test.[42] Although Pandazides does not directly involve a
higher education program, it gives insight into judicial deference in
allowing educational programs to define their fundamental
requirements. In this case, the skills being measured by the
exam—listening, reading, and writing—and the method of test
administration were found to be appropriate.[43] Wynne u Tufts
University School of Medicine[44] and Halasz u University of New
England[45] show similar deference to educational-agency requirements
related to standardized testing.

In Wynne, the complainant was a medical student with a learning
disability who had requested and been granted numerous accommodations
for his learning disability. After repeated failure on one particular
multiple-choice exam, he claimed that the university had violated
Section 504 by refusing to allow him to take the exam in a different
format.[46] In the first appellate court decision, the First Circuit
established the standard to be applied in such cases,[47] and
in the second decision it found that the standard had been met.[48]
Specifically, the burden on the institution is as follows:

If the institution submits undisputed facts demonstrating that the
relevant officials within the institution considered alternative
means, their feasibility, cost and effect on the academic program, and
came to a rationally justifiable conclusion that the available
alternatives would result either in lowering academic standards or
requiring substantial program alteration, the court could rule as a
matter of law that the institution had met its duty of seeking
reasonable accommodation.[49]

The court noted that bad faith or pretext could justify further fact
finding in appropriate cases.[50] Applying the standard, the court
found no violation of Section 504, holding that "the undisputed facts
contained in the expanded record [on remand], when considered in the
deferential light that academic decisionmaking deserves, meet the
required standard.”[51] Unlike Pandazides, Wynne did not involve
standardized tests for admission to a program, but like Pandazides, it
reveals judicial attitudes towards standards and requirements set by
academic institutions and the deference to be paid to them.

The Halasz case directly involved admissions in a higher education
context. In that case, a student with a learning disability and
Tourette's syndrome did not meet the standards for admission into the
regular program.[52] The applicant had not requested that
accommodations be provided on the SAT. The court found that the
university had made reasonable accommodations in its admissions
process.[53] Although the student did not qualify for regular admis
sion, he was admitted into a special program for learning-disabled
students whose academic credentials were below the standards for
regular admission. The student was dismissed when he failed to meet
the cumulative grade point average required for continuation in the
program. The student brought a discrimination claim under Section

In reaching its decision that there was no Section 504 violation, the
court made several significant points about admissions. First, it
noted that if an applicant desires special consideration of his
learning disability during the admissions process, it is his
obligation to provide the appropriate supporting documentation.[55] In
this case, the applicant did not seek additional time to take the SAT
and submitted his timed test score with a request that it not be
considered, in effect seeking a waiver of the test.[56] In its
discussion, the court effectively recognized the validity of requiring
standardized test scores (in light of the fact that accommodations
were available), and underscored the obligation of the applicant to
provide appropriate documentation to support special consideration
when a disability is at issue.[57]

The court also addressed issues relating to preadmission inquiries.
Because this student did not qualify for regular admission, he was
permitted to apply for the program set up for students with learning
disabilities. Eligibility for the program required an applicant to
provide documentation of his disability. The student claimed that this
was impermissible. The court held that such a request does not violate
Section 504 when the inquiry is for the purpose of determining
eligibility for a "program available only to handicapped

Issues involving admission to the legal and medical professions have
been litigated extensively. These cases involve both standardized
tests and procedures that are the equivalent of preadmission
inquiries. While these cases are not directly on point for
institutions of higher education, this Article suggests that judicial
interpretation of Section 504 and the ADA within the contexts of
professional licensing and academic institutions likely will be

With respect to standardized tests, there are several cases involving
state boards of bar examiners. In D'Amico v. New York State Board of
Law Examiners,[59] the applicant had a severe visual impairment that
made reading for long periods of time difficult. The court evaluated
the legal requirements of the ADA and ordered
injunctive relief.[60] In addition to providing other undisputed
accommodations, the injunction required that the board allow her to
take the bar exam over a four-day period, and provide six hours each
day plus an additional hour for lunch.[61] The bar examiners had
originally allowed only two days for the test, but had allowed as much
time as needed during those two days. While recognizing the bar
examiners' concern about security and test integrity, the court
granted the preliminary injunction because of the irreparable injury
that would be suffered by the applicant in the future.[62] As this
case progresses, it will be interesting to see how the court addresses
other concerns raised by the New York bar examiners.

In Weintraub v. Board of Bar Examiners,[63] the Massachusetts bar
examiners were ordered to provide double time and other accommodations
on the bar exam for an individual with dyslexia and attention-deficit
disorder.[64] At least two other recent cases have involved additional
time on bar exams.[65] The issue of whether the exam can be required
is not raised in any of these cases. Rather, the issue is what
accommodations must be provided under the ADA. It is interesting that
the validity of such tests seems to be stipulated for
professional licensing. Perhaps future plaintiffs will challenge these
tests under a Wynne standard, requesting that the bar-examining
authorities justify why "alternative means, their feasibility, cost
and effect" have not been considered for measuring subject-matter
competence to practice law.[66]

Cases related to accommodations for standardized tests raise the
issues of whether the individual meets the statutory definition of
disabled" and what proof the individual must provide to be entitled to
reasonable accommodations. When the individual puts the disability at
issue in requesting accommodations, the courts appear to be consistent
in requiring the individual to document the disability.[67]

The more complex issue is whether colleges may inquire about whether
an individual has a history of mental illness or make some type of
similar inquiry when no accommodations are being requested. The
litigation in the professional-licensing arena is instructive on this
issue. Both bar-examining authorities and medical-examining
authorities are being challenged on questions relating to mental
health histories and use of alcohol and drugs.[68] It is likely that
similar challenges will arise when similar questions are asked in the
admissions process in higher education. One reported case indicates
that courts take a dim view of overbroad questions involving mental
health history and status.[69]

Courts seem more deferential to decisions made by colleges based on
individualized determinations as to whether students or applicants
meet the fundamental requirements of the program, when inquiries are
made after the student has been admitted. In the instructive case of
Doe u New York University,[70] a medical student who had been accepted
for admission was found to have serious psychological problems when a
required physical examination revealed evidence of a prior attempted
suicide. The court found no violation of Section 504 in the medical
school's denial of admission because it had provided substantial
evidence that indicated an appreciable risk of a recurrence of
violent, self-destructive conduct that potentially could endanger the
student or others.[71]

While it seems clear that colleges may make postadmission inquiries
related to disabilities, such inquiries must relate to disabilities
that may require accommodation.[72] The issue of inquiries about
mental health status and its relationship to admission and enrollment
is less clear and will require greater judicial clarification. This
Article suggests that such cases should focus on requiring the college
or university to justify such questions and to examine whether there
might be more appropriate ways to obtain this information. For
example, if the concern is that the individual be emotionally stable
in order to withstand a rigorous and demanding academic curriculum,
the question asked should relate to that issue.

If the concern is that the individual not be disruptive or dangerous
in the academic community, then the question should relate to a
history of discipline and conduct, not mental health status.

In sum, as a result of the recent surge in litigation, the area of
admissions calls for heightened scrutiny in the areas of both
standardized tests and questions asked in the admissions process.
Colleges should also ensure that their recruiting activities take
place in accessible locations and that their admissions materials
reflect nondiscriminatory policies and practices; it is only a matter
of time before shortcomings in these areas will be challenged in

B. Programs and Services for Enrolled Students

Recently, a significant number of postadmission cases involving
students with disabilities have been litigated. The issues relating to
programs and services for enrolled students include academic
programming, athletics, counseling and placement, financial aid,
health and insurance, and extracurricular activities.[73] Potential
disputes can involve exam accommodations, course load modifications,
course waivers, auxiliary aids and services, barrier removal, and
adjustment of policies and procedures. Litigation of these issues is
commonly marked by the substantial judicial deference paid to academic
institutional decision making.

In McGregor v. Louisiana State University Board of Supervisors,[74]
the court upheld a law school's refusal to allow a reduced course load
for a student with head and spinal injuries that made it difficult for
him to attend full time.[75] While noting that the law school's
program was strict, the court found it nonetheless to be
reasonable.[76] The McGregor decision would be troubling if it were
not limited to the special circumstances of the program involved in
this case.[77] It is not clear that this decision means that academic
institutions can refuse to provide part-time programs for students
with disabilities simply because they do not provide such programs to
all students. And even if it does, this approach has not been used in
any other circuits. The case does, however, illustrate the general
judicial deference to performance criteria set by academic insti
tutions. The Wynne decision discussed previously further supports this
general standard.[78]

Another recent case involving programs and services is Indiana
Departrnent of Human Services v. Firth.[79] The importance of the case
lies not so much in its direct application to what colleges and
universities must do, but in its emphasis on the general issue of the
cost of providing auxiliary services to students with disabilities.
The case involved a law student who was deaf and who required high
quality interpreter services. He was evaluated by the state vocational
rehabilitation agency and provided with an interpreter. But because
the agency limited the amount that could be paid for such services,
the interpreter was not appropriately qualified. The court held that
the student was eligible for higher level vocational rehabilitation
services.[80] The significance of this case is that it required provi
sion of a higher level of service to a student with a disability. The
Firth holding can be used to obtain necessary services from colleges
and universities that are mandated to provide special services, or at
least to ensure that such services are provided at no expense to the
student unless it would be unduly burdensome to do so.[81]

One recent case relating indirectly to programs and services was
brought under Section 504. In Wood v. President & Trustees of Spring
Hill College,[82] a student who had been admitted into the college and
who had actually enrolled was found later to be schizophrenic. The
college did not withdraw her admission, but she claimed constructive
withdrawal based on her belief that she had been treated in a hostile
manner after the college learned of her condition. In reviewing her
file after they learned of her condition, it was determined that she
did not meet the college's academic criteria and had been admitted
erroneously.[83] It is unclear from the reported decision how this
error had been made in the first place. Unfortunately, the appellate
decision addressed issues involving jury instructions and affirmed the
lower court's finding that Section 504 had not been violated,[84] but
did not discuss the issue of whether she should be entitled to
protection under Section 504. The college had offered her the
accommodation of remediation to meet the admissions criteria, but it
was never determined whether it was required to do so.[85]
Unfortunately, this opinion provides little guidance as to how courts
are likely to address the issues raised in the case, but it is
significant because it involves a student with a mental disability — a
disability that is particularly difficult for institutions of higher
education to respond to because of the interrelationship between
conduct and behavior and standards of academic competence. Colleges
and universities are likely to encounter more of these individuals and
should take a proactive approach by sensitizing administrators and
faculty to the issues involved. Administrators will need to learn
about appropriate, reasonable accommodations for individuals with
mental disabilities. Such preparation is unlikely to prevent all
litigation, but will decrease the likelihood of ultimate liability.

The WYnne case was discussed in the section on admissions, but because
it involves the testing of an enrolled student, it is more directly
related to the issue of accommodations in programs and services.[86]
This Article suggests that the standard established in that case for
evaluating whether reasonable accommodations have been provided is
likely to be followed in other contexts. The court paid substantial
deference to the academic institution in setting its academic criteria
and re-emphasized that such institutions are not required to lower
academic standards or make fundamental alterations to the program. But
the court indicated that to avoid liability, the institution must
demonstrate that it has carefully considered reasonable alternatives
and accommodations and has provided reasonable justification for
denying them.[87]

In addition to a general theme of judicial deference to academic
decision making, earlier reported cases in the area of programs and
services indicate that colleges and universities will be required to
demonstrate an undue burden when responding to requests for costly
accommodations.[88] Although the courts have not addressed this issue
recently, as cases filed under the ADA work their way through the
courts, this issue will likely receive additional attention.

C. Physical Facilities

Just as the issue of accommodations for programs and services can
involve substantial financial resources, so can the issue of physical
facilities. For that reason, it can be expected to receive judicial
attention in light of the ADA.[89] Physical facilities in the higher
education context include not only campus facilities such as
classrooms, libraries, and administration buildings, but also
facilities used for housing and recreation, as well as campus
transportation systems.[90] Two areas that are often overlooked are
off-campus programming (such as alumni events) and on-campus
programming to which the public is invited (such as speeches by
distinguished lecturers).

The ADA requires that private universities remove barriers to the
extent that it is readily achievable to do so.[9l] Public universities
must administer a self-evaluation and remove barriers to the extent
necessary to make the program accessible when viewed in its
entirety.[92] Interesting overlaps in public and private requirements
occur when a private vendor is licensed to operate on a public campus
(such as a bookstore or a pizza chain) or when a public academic
institution uses space off-campus (such as a hotel for a fundraising
event). There are additional detailed specifications for accessibility
in new construction.[93] Exactly what is required for existing
facilities is an issue that is likely to be controversial.

Although these issues have been litigated under Section 504 of the
Rehabilitation Act,[94] the ADA is likely to spur additional cases
involving physical facilities.[95] A recent ADA case involved housing.
In Colemun v. Zatechka,[96] the court held that the ADA had been
violated when an orthopedically impaired student who had an attendant
that visited three times a day was ineligible for random roommate
assignment in the dormitories.[97] In that case, the possibility that
the student might need more than half the room did not mean that she
was not otherwise qualified for the room assignment inasmuch as the
dormitory had no restrictions on visitors or the use of space for
students who did not have disabilities.[98] The case highlights one of
the key principles of the ADA and the Rehabilitation Act: that
programs should be provided in the most integrated setting that is
feasible and appropriate.

In addition, future decisions probably will focus on the principle of
integration. A recent federal appellate decision addressed the issue
of physical facilities in the context of handicapped-parking permits
on campus. In Madsen v. Boise State University[99] the court found no
violation of Section 504 of the Rehabilitation Act when the university
failed to offer free handicapped-parking permits but provided some
free permits to others. The basis for the decision is somewhat
troubling. The court found that because the complainant had never
actually applied for a free permit, his claim of discrimination was
premature.[100] The complainant had, however, made several calls to
various administrators on campus about free permits and was told they
were not available.[l0l] The dissent persuasively noted that although
the complainant never filed a formal application, the university's
published policy and informal inquiry had indicated that it would be
futile to do so.[l02] It seems likely that courts might follow the
dissent's reasoning (that the formal application requirement should
not be required) in both Section 504 and ADA complaints.

When the issue of physical facilities is litigated, the complaint may
challenge not only the legality of barriers confronted by the
individual, but may list virtually every barrier on campus. The courts
may intervene and set priorities for barrier removal that the
institution could have set more efficiently, if it had properly
evaluated its barriers, set priorities for their removal, and demon
strated good-faith efforts towards doing so.[l03]

D. Student Records

Although few cases involving student records have arisen in recent
years, this area may well receive future attention in light of the
sensitive nature of AIDS, substance abuse problems, psychological
disabilities, and other stigmatizing disabilities. It is essential
that universities implement policies reflecting the importance of
confidentiality. These policies should answer questions such as to
whom disabilities may be disclosed, who should have access to student
records, where information on disabilities is to be kept, what
information can be noted on transcripts or other official student
records, which faculty members can have access to student records, and
what privileges exist regarding the provision of information to
others, such as certifying boards and transferee institutions.

One recent decision has begun to address this issue. In Rothman v.
Emory University,[l04] the court denied a motion to dismiss a suit by
a law school graduate who claimed violations of both the ADA and
Section 504.[105] The complainant's basis for the suit was that Emory
had discriminated against him by reporting his behavior and conduct to
the state board of bar examiners, resulting in a required appearance
before a hearing board. He claimed that because his behavior resulted
from “chronic epilepsy," reporting it was discriminatory.[106] The
merits of the claim have not yet been decided, but the final decision
may provide important guidance on the issue of privileged

IV. Likely Areas of Future Litigation

Few reported higher education cases exists under the ADA at this
point. However, a number of judicial opinions in cases involving
Section 504 of the Rehabilitation Act may provide guidance for
interpreting the ADA. Given the substantial increase in awareness of
nondiscrimination laws based on disability, it is extremely likely
that there will be a substantial increase in litigation in this area.

Courts are likely to become involved in issues involving auxiliary
aids and services and barrier removal because of the costs entailed.
In some cases, institutions of higher education may claim an undue
burden, and in others the dispute will require a clarification of what
type of access must be provided. The barrier issues most likely to be
litigated are building entry, lack of Braille guides, and lack of
visual fire alarms for individuals who are deaf.[l08] Housing and
public events held on campus may also receive substantial attention.

Issues involving students with learning disabilities are likely to be
addressed frequently because of the increase in the number of students
claiming learning disabilities and the lack of a clear understanding
by educational agencies as to their obligations with respect to these
students. There are likely to be disputes about whether certain
requested modifications (such as reduced course loads and exam
modifications) are fundamental alterations to the essential
requirements of the program and whether these modifications give the
student or applicant an unfair advantage. [109]

Additionally, colleges are often unsure of how to respond to issues
involving students with psychological impairments. Their concerns
include the following: what questions may be asked in the admissions
process, how to respond to threats or perceived threats made by such a
student regarding the safety of others, and how to respond when the
conduct of such a student is viewed as disruptive to the educational

V. Conclusion

Although the obligations are substantially the same, institutions of
higher education are much more aware of their duties under the ADA
than under the Rehabilitation Act. Universities are now more
responsive in their attempts to comply with their legal obligations.
However, questions will continue to arise and result in litigation.
Because of ever-decreasing financial resources, it can be expected
that there may be resistance to costly accommodations and barrier
removal. In addition, it is not always clear from the statutes,
regulations, and current case law what is required in response to a
particular situation.[ll0] This state of affairs, combined with the
increased aggressiveness of applicants and students in seeking
judicial redress, will likely result in a significant increase in
litigation. Some advocacy groups are also seeking harsher punishments
in test cases as well as publicity in order to warn other

It is essential that administrators review their policies, practices,
and physical accessibility. Additionally, they must keep abreast of
developing law to avoid disabilities litigation. While courts give
substantial deference to the academic standards and basic qualifica
tions set by educational agencies, they do not always side with the
institution. Good faith will be an important consideration in
determining remedies, but it will not be a shield against liability.


1. The percentage of college freshmen reporting disabilities has risen
from 2.6% in 1978 to 8.8% in 1991. CATHY HENDERSON, HEATH RESOURCE
(1992). Within this group, the types of disabilities reported most
frequently were sight and learning disabilities. Id. at 4-5. Of
freshmen with disabilities, those reporting learning disabilities
increased from 15% in 1985 to 25% in 1991. Id. at 3. The number of
freshmen with learning disabilities on college campuses has been
reported at over 35,000. Id. at 4.
2. The Individuals with Disabilities Education Act (IDEA) was passed
in 1975 as the Education for All of the Handicapped Children Act. 20
U.S.C. §§ 1400-1461 (1988). The IDEA requires schools to provide a
free appropriate public education to all children with disabilities
and to ensure that procedural safeguards are in place to implement
this requirement. Id. § 1412(1); 34 C.F.R. § 300.121(a) (1993). The
effect has been that the number of students reaching college age who
are prepared to attend college has increased dramatically. These
individuals have become accustomed to having procedural safeguards and
special services available to them and, as a result, are more likely
to challenge discrimination and the denial of support services.
3. 42 U.S.C. §§ 12101-12213 (1988 & Supp. II 1991).
4. 29 U.S.C. § 794 (1988).
5. This Article limits its discussion of the case law to significant
cases decided in the last two or three years as well as a few major
cases from earlier years. For earlier discussions of trends in this
area, see Laura F. Rothstein, Students, Staff and Faculty with
Disabilities: Current Issues for Colleges and Universities, 17 J.C. &
U.L. 471, 472-77 (1991); Laura F. Rothstein, Section 504 of the
Rehabilitation Act: Emerging Issues for Colleges and Universities, 13
I.C. & U.L. 229, 234-62 (1986). See generally LAURA F. ROTHSTEIN,
DISABILITIES AND THE LAW §§ 7.01-.26 (1992 & Supp. 1993) (discussing
virtually all reported cases in the higher education context).
6. 42 U.S.C. §§ 12101-l22l3 (1988 & Supp. 11 1991); see also 28 C.F.R.
§§ 35.101-.190 (1992) (relating to state and local governmental
services, including state and local colleges and universities); id. §§
36.101-.608 (1992) (relating to public accommodations, including
private colleges and universities); 36 C.F.R. §§ 1192.1.179 (1993)
(relating to accessibility guidelines for buildings and facilities);
49 C.F.R. §§ 27.1-.129 (1979) (relating to transportation systems);
id. §§ 37.1-.173 (1991) (transportation systems); id. §§ 38.1-.179
(1991) (transportation systems).
7. 42 U.S.C. §§ 12111-12117.
8. Id. §§ 12131-12164.
9. Id. §§ 12181-12189. Other titles and miscellaneous provisions are
beyond the scope of this Article.
10. 29 U.S.C. § 794 (1988).
11. Id.- see also 34 C.F.R. §§ 104.41-.47 (1993) (providing
requirements for postsecondary education under Section 504); 46 Fed.
Reg. 40,686 (1981) (providing model regulations for Section 504).
12. See ROTHSTEIN, supra note 5, § 5.02, at 61 & n.6.
13. See generally id.
14. Major life activities include "caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working." 34 C.F.R. § 104.3(j)(2)(ii) (1993).
15. 29 U.S.C. § 706(8)(B) (1988); 42 U.S.C. § 12101(2); 34 C.F.R. §
104.3(j)(2)(iv) (1993) (defining one who is regarded as having an
impairment). Both statutes also specifically exclude certain
designated conditions, both physical and mental, such as some sexual
disorders and kleptomania. 29 U.S.C. § 706(8)(E)-(F); 42 U.S.C. §§
12208, 12211. There are also specific provisions related to
individuals with contagious and infectious diseases (29 U.S.C. §
706(8)(D); 42 U.S.C. § 12113(d)) and individuals who are alcoholics or
drug abusers (29 U.S.C. § 706(8)(C);42 U.S.C. § 12114).
16. 29 U.S.C. § 794; see 34 C.F.R. § 104.3(k)(3) (defining qualified
handicapped person). See generally ROTHSTEIN, supra note S, §§ 7.02-
.03 (discussing otherwise qualified handicapped individuals).
17. 42 U.S.C. §§ 12111(a) (reasonable accommodation), 12143(c)(4) (no
undue financial burden), 12181(9) (readily achievable),
12182(b)(2)(A)(ii)-(iv) (no fundamental alterations). See generally
ROTHSTEIN, supra note 5, § 7.10 (discussing the Rehabilitation Act's
requirement of auxiliary services for handicapped students).
18. 42 U.S.C. § 12182(b)(1)(A)(iii), (B); 34 C.F.R. § 104.4(b)(2)-(3).
19. 34 C.F.R. § 104.6(c).
20. Id. § 104.22(a).
21. Id. § 104.23.
22. Id. § 104.6(c).
23. 42 U.S.C. § 12131.
24. Id. § 12181(9) (West Supp. 1993).
25. Id. § 12131 (West Supp. 1993).
26. Id. § 12181(9) (West Supp. 1993).
27. 28 C.F.R. § 36.304.
28. 29 U.S.C. § 701 (1989).
29. 42 U.S.C. § 12131(1)(A).
30. 29 U.S.C. § 794(a); 42 U.S.C. §§ 12133, 12188.
31. 42 U.S.C. § 12188; 36 C.F.R. § 36.501 (1993). Courts generally
have provided injunctive relief under Section 504. See, e.g., Jose P.
v. Ambach, 669 F.2d 865 (2d Cir. 1982); Longoria v. Harris, 554 F.
Supp. 102 (S.D. Tex. 1982). The majority of courts have recognized
damages as a remedy under Section 504. See, e.g., Tanberg v. Weld
County Sheriff, 787 F. Supp. 970 (D. Colo. 1992); Cortes v. Board of
Governors, 766 F. Supp. 623 (N.D. 111. 1991). Attorney's fees are
clearly available under Section 504. 29 U.S.C. § 794(d) (1988). See
generally ROTHSIEIN, supra note 5, § 7.26 (discussing procedural and
remedial issues under Section 504 and the ADA).
32. See generally ROTHSTEIN, supra note 5, §§ 7.01-.26 (discussing the
application of the ADA and Section 504 to higher education); 34 C.F.R.
§§ 104.41-.47 (1993) (providing regulations for Section 504).
33. 29 U.S.C. § 794 (1988); 42 U.S.C. §§ 12101-12213; 34 C.F.R. §
104.42 (1993).
34. 34 C.F.R. § 104.42(b)(2).
35. Id. § 104.42(b)(3)(i).
36. Id. §§ 104.42(b)(4), 104.42(c).
37. Id. § 104.42(b)(4).
38. 42 U.S.C. § 12189; see also Scott Jaschik, Washington Update,
CHRON. HIGHER EDUC., Apr. 20, 1994, at A41, A41 (reporting an
agreement between the Justice Department and the Educational Testing
Service to provide additional opportunities for students with
disabilities to take the SAT).
39. 804 F. Supp. 794 (E.D. Va. 1992).
40. Id. at 798.
41. Id. at 803.
42. Id.
43. Id.
44. 932 F.2d 19 (lst Cir. 1991) (Wynne 1). This case established a
standard of analysis for Section 504. See also Wynne v. Tufts Univ.
Sch. of Medicine, 976 F.2d 791 (lst Cir. 1992) (Wynne II) (affirming
summary judgment for the university because it met the standard
articulated in Wynne I).
45. 816 F. Supp. 37 (D. Me. 1993).
46. Wynne I, 932 F.2d at 22.
47. Id. at 22-26.
48. Wynne II, 976 F.2d at 794-96.
49. Wynne I, 932 F.2d at 26.
50. Id.
51. Wynne II, 976 F.2d at 796 (citation omitted).
52. Halasz v. university of New England, 816 F. supp. 37, 40 (D. Me.
53. Id. at 43.
54. Id. at 3941.
55. Id. at 42 n.6.
56. In addition, the applicant asked that his grades from other
institutions not be considered. The court noted that this request, in
combination with the request that the SAT score not be considered,
would mean that the university would have no criteria for admission.
57. Halasz, 816 F. Supp. at 42 n.6.
58. Id. at 46.
59. 813 F. Supp. 217 (W.D.N.Y. 1993).
60. Id. at 218-19.
61. Id. at 223-24. For previous exams, the Board had provided a
separate testing room, enhanced lighting, a large-print test, a taped
test, and a reader-writer amanuensis, and allowed applicants to bring
a ruler and write answers to multiple-choice tests in test booklets
instead of on computerized answer sheets. Id. at 218.
62. Id. at 220, 223.
63. No. 92-06058 (Mass. 1992).
64. See The Week's Opinions, MASS. L. WKLY., Sept. 21, 1992, at 5
(publishing the docket entry granting Weintraub double time for the
bar exam). See generally Barbara Rabinovitz, Learning the Law: An
Aspiring Attorney’s Inspiring Story About Overcoming Disabilities,
MASS. L. WKLY., Dec. 20, 1993, at 37, 37 (noting that Weintraub passed
the exam).
65. See Pipia v. New York State Bd. of Law Examiners, No. 92 CIV-5163
(S.D.N.Y. 1992); Rosenthal v. New York State Bd. of Law Examiners, 92
CIV-llO0 (S.D.N.Y. 1992); see also Don J. DeBenedictis, Bar Examiners
Respond to the ADA: Spurred by Suits or the Law, Officials Grant More
Test Time to Disabled Applicants, A.B.A. J., Nov. 1992, at 20, 20
(discussing both Pipia and Rosenthal, and reporting that Mr. Pipia, a
quadriplegic who was granted double time for the exam, may dismiss the
suit if he passed); Gary Spencer, Appeals Rules Required for Bar
Applicants, N.Y.L.J., Aug. 5, 1992, at 1, 1 (reporting that Ms.
Rosenthal, who had been given double time for the exam, settled the
case after the Board agreed to certify that she passed the exam). See
generally List of Applicants Who Passed February Bar Examination,
N.Y.L.J., May 5, 1993, at S1, S8 (listing Mr. Pipia).
66. Waynne 1, 932 F.2d 19, 26 (lst Cir. 1991).
67. See, e.g., Nathanson v. Medical College of Pa., 926 F.2d 1368,
1381 (3d Cir. 1991) (reversing summary judgment on the issue of
whether the university had reason to know of the plaintiff's
handicap); Salvador v. Bell, 622 F. Supp. 438, 439 (N.D. Ill. 1985),
aff'd sub nom. Salvador v. Bennett, 800 F.2d 97 (7th Cir. 1986)
(holding that Section 504 does not create a private cause of action
against the Secretary of Education, and noting that the obligation to
make accommodations arises only when the institution knows of the
handicap). The commentary to the regulations related to examinations
and courses indicates that it is permissible in certain circumstances
for examiners to require evidence that an applicant is entitled to
accommodations by requesting documentation and requiring the applicant
to pay for it. 28 C.F.R. § 36.309. It is probable that a similar
interpretation would be applied to other situations in which the
disability is not obvious.
68. See John Murawski, Bar Applications to Drop Questions on Mental
Health, LEGAL TIMEs, Mar. 9, 1992, at 15 (reporting that the District
of Columbia agreed without litigation to stop asking bar applicants
about mental health histories); Rosalind Resnick, Groaps Criticize Bar
on Mental Histories, NAT'L. L.1., May 18, 1992, at 3 (discussing
challenges to bar examiner questions about mental health history).
69. Medical Soc'y of N.J. v. Jacobs, 1993 WL 413016, at *6-7, 11
(D.N.J. Oct. 5, 1993) (denying preliminary injunction to keep the
Board of Medical Examiners from inquiring into drug abuse or
psychiatric illness, but noting a probable violation of Tide 11 of the
Several other relevant cases have recently been filed. See, e.g.,
Applicants v. Texas State Bd. of Bar Examiners, No. 93-12949 (Dist.
Ct. of Travis County, 331st Judicial Dist. of Texas, filed Oct. 22,
1993) (involving class-action suit seeking to prevent bar examiners
from questioning applicants about their mental-health history); Doe v.
Connecticut Bar Examining Comm., No. 2:92-CV-634 (involving suit by
bar applicant for right to take exam despite refusing to answer
questions that asked if at any time he had been diagnosed with or
treated for a mental illness); see also Walter Borges, Law Examiners'
Mental Health Questions Challenged, TEX. LAW., Nov. 1, 1993, at 5, 5
(discussing Applicants v. Texas State Board of Bar Examiners);
Licensure Questionnaires Reviewed for Compliance with Disability Law,
Health L. Rep. (BNA) No. 24, at D-2 (June 17, 1993) (discussing
informal guidance from Justice Department on compliance of licensure
questionnaires with ADA).
70. 666 F.2d 761 (2d Cir. 1981).
71. Id. at 779.
72. 34 C.F.R. § 104.42(b)(4) (1993).
73. ROTHSTEIN, supra note 5, §§ 7.08-.16.
74. 3 F.3d 850 (5th Cir. 1993).
75. Id. at 859-60.
76. Id.
77. The law school had a practice of admitting a large number of
students and imposing high academic standards with a high initial
attrition rate. The full-time program was viewed as necessary to
ensure that all such students were treated fairly in this weeding-out
process. Id. at 859 n. 12.
78. See supra text accompanying notes 44-51; see also Pandazides v.
Virginia Bd. of Educ., 804 F. Supp. 794, 803 (E.D. Va. 1992)
(upholding the requirement that teacher claiming a learning disability
take and pass a standardized national examination); Doe v. Washington
Univ., 780 F. Supp. 628, 631 (E.D. Mo. 1991) (finding no violation of
Section 504 by college that disenrolled an HIV-positive dental student
for academic, not health, reasons).
79. 590 N.E.2d 154 (Ind. Ct. App. 1992).
80. Id. at 160.
81. See also United States v. Board of Trustees, 908 F.2d 740, 752
(llth Cir. 1990) (holding that the University of Alabama could not
deny auxiliary aids and services to students on the basis that they
did not qualify for financial aid).
82. 978 F.2d 1214 (11th Cir. 1992).
83. Id. at 1217-18.
84. Id. at 1218,1223.
85. Id. at 1220-23. "Remediation" refers to the act of bringing a
student's academic skills up to a level acceptable for the school.
86. Wynne 1, 932 F.2d 19 (lst Cir. 1992); see supra text accompanying
notes 4451 (discussing Wynne).
87. See supra text accompanying note 49.
88. See, e.g., Nathanson v. Medical College of Pa., 926 F.2d 1368,
1383 (3d Cir. 1991) (stating that a college's efforts may be
reasonable if the requested accommodation poses an undue burden).
89. For less recent cases, see ROTHSTEIN, supra note 5, §§ 7.16-.20.
90. 42 U.S.C. §§ 12141-12165. For campus transportation systems, the
ADA requires that newly acquired vehicles be accessible to and usable
by individuals with disabilities. Id. §§ 12142(a)-(b). Colleges
contracting with outside providers need to ensure that these providers
comply with the ADA. Id. § 12141(4).
91. 28 C.F.R. § 36.304 (1993).
92. Id. § 35.150; see ROTHSTEIN, supra note 5, § 9.16 (discussing
existing facilities).
93. 28 C.F.R. § 35.151.
94. See, e.g., McGregor v. Louisiana State Univ. Bd. of Supervisors, 3
F.3d 850, 860 (5th Cir. 1993); Nathanson v. Medical College of Pa.,
926 F.2d 1368, 1385 (3d Cir. 1991).
95. A pending ADA case may shed some light on the issue of what is
required in terms of barrier removal. The Justice Department has been
conducting an investigation under Title II of the ADA concerning
George Washington University. Telephone Interview with Justice
Department Official (Nov. 30, 1993). A woman planning to attend a
conference in a building on campus learned in advance that the
bathroom facilities were inaccessible. The conclusions reached in this
case may clarify what efforts must be made to remove barriers in
existing facilities.
96. 824 F. Supp. 1360 (D. Neb. 1993).
97. Id. at 1373.
98. Id.
99. 976 F.2d 1219 (9th Cir. 1992).
100. Id. at 1220.
l0l. Id.
102. Id. at 1223 (Norris, J., dissenting).
103. See, e.g., Brown v. Washington Univ., CA No. 88-1907-C-5 (E.D.
Mo., filed Sept. 30, 1988) (settled in 1990 for $2.5 million in
modifications over a two-year period); see also Ann Scales Cobbs,
Access to Learning Washington U. Case Gives Boost to the Disabled, ST.
Louis POST-DISPATCH, May 20, 1990, at B4 (detailing the Brown case and
the settlement agreement).
104. 8 F. Supp. 537 (N.D. III. 1993).
105. Id. at 54042; see also Rothman v. Emory Univ., No. 93 C 1240,
1993 WL 441930 (N.D. III. Oct. 28, 1993) (order dismissing state law
claims and requiring a memorandum from the plaintiff to address
concerns raised by ADA and Section 504 claims).
106. Rothman, 8 F. Supp. at 54041.
107. The litigation will likely focus on a handful of controversial
areas. See, e.g., Scott Jaschik, 46 Colleges Found to Have Violated
Rights of Disabled, U.S. Documents Show, CHRON. HIGHER EDUC., Apr. 21,
1993, at A18-19, A22 (discussing claims regarding disability
discrimination in admissions, racial discrimination in administering
claims, lack of accessibility, sexual discrimination in program
funding, and improper inquiry on applications).
108. Id. at A22.
l09. See, e.g., Smith v. Board of Regents, 846 P.2d 370 (Okla. 1993)
(dismissing as moot Oklahoma State University's appeal of a Section
504 decision that granted a preliminary injunction to a student with a
learning disability facing expulsion).
110. There is, however, a great deal of technical assistance available
for colleges and universities. For example, the HEATH Resource Center,
a program of the American Council on Education, is a national
clearinghouse on postsecondary education for individuals with
disabilities. Numerous publications, including a Resource Directory,
are available from HEATH, One Dupont Circle, Suite 800. Washington,
D.C. 20036-1193, 800/544-3284.
111. See, e.g., Jaschik, supra note 107, at A22.