Making Accommodations
Author’s Permissions and Note
Author: Paul D. Grossman
Permission granted to copy, reproduce, distribute, and post this article for non-profit educational purposes provided the article is reproduced in its entirety. This ensures widespread access to crucial information on disability law while respecting the author's intellectual property and preventing commercial exploitation.
Citation: Grossman, P. D. (2001). Making Accommodations: The Legal World of Students with Disabilities. 87 Academe: Bulletin of the American Association of University Professors, 41-46 (November-December 2001).
Article not reviewed or approved by the U.S. Department of Education, Office for Civil Rights. This indicates that the views expressed are solely the author's own and do not represent official departmental policy.
Author's Credentials
Chief regional attorney, San Francisco office, U.S. Department of Education's Office for Civil Rights (OCR). This position involves enforcing federal civil rights laws that prohibit discrimination on the basis of disability in educational institutions.
Adjunct professor of disability law at the University of California's Hastings College of Law. This reflects his expertise and involvement in legal education regarding disability rights.
Recipient of honors from the Department of Education, the Association for Higher Education and Disability (AHEAD), and the California Association of Post-Secondary Educators of Persons with Disabilities (CAPED). These accolades underscore his significant contributions and recognition within the field.
Article written entirely in a private capacity, not reviewed by employers. This reinforces that the content represents his personal insights and interpretations, not official statements from the OCR.
Personal Narrative
The author shares an anecdote about his brother who used a wheelchair due to cancer affecting his spine since 1991. This personal connection provides a strong empathetic foundation for the discussion of disability accommodations.
Despite his condition, his brother found attending law school at Rutgers School of Law one of the wisest decisions of his life, emphasizing the intrinsic value of education in sustaining his spirit through adversity. This narrative highlights the profound impact of accessible education on an individual's well-being and resilience, beyond mere academic achievement.
Key Questions Raised
Did his brother's experience challenge notions about the fairness of accommodations in competitive academic environments? This question prompts a critical examination of ingrained perceptions about meritocracy versus equity in education.
Is reliance on technology (e.g., Internet and computers for research) a sign of lowered standards or a demonstration of new methods of engagement? This explores the evolving nature of academic work and how various tools facilitate learning without compromising rigor.
Is extra time for examinations fair in the context of competitive academic environments? This directly addresses one of the most common and debated accommodations, inviting a deeper look into equal opportunity versus identical treatment.
Legal Framework for Disability Rights in Education
Federal Laws Protecting Students with Disabilities
Section 504 of the Rehabilitation Act of 1973 - Applies to all colleges and universities, both public and private, that receive any form of federal financial assistance.
Requires reasonable accommodations to ensure equal access for qualified students with disabilities, meaning they must have the same opportunities to participate in and benefit from the institution's programs and activities as non-disabled students. It prohibits discrimination solely on the basis of disability.
Americans with Disabilities Act (ADA) of 1990 - This comprehensive civil rights law extends protections to individuals with disabilities in various areas, not just those receiving federal funds.
Title II of the ADA applies to state and local government entities, including public universities and community colleges, ensuring they provide equal access to their programs and services.
Title III of the ADA applies to private entities that are considered "public accommodations," which includes most private colleges and universities, requiring them to provide equal access to their facilities and services.
These laws collectively aim to prevent discrimination and guarantee that individuals with disabilities have an equal opportunity to participate in mainstream society, including higher education.
Principles of Disability Law
Connection to Federal Civil Rights Laws - Disability law is fundamentally an extension of federal civil rights legislation, much like laws addressing racial or gender discrimination. Its core aim is to actively desegregate and foster diversity within educational institutions, recognizing that exclusion based on disability is a form of discrimination that diminishes the entire academic community.
Academic Adjustments and Reasonable Modifications - These are essential mechanisms designed to level the playing field, ensuring that students with disabilities can meet academic standards without altering the fundamental nature of the course or program.
Examples of accommodations include:
Academic adjustments such as extended time for tests, permission to record lectures, provision of notes, or flexible attendance policies when necessary due to disability-related issues.
Auxiliary aides and services like qualified sign language interpreters for deaf students, readers for blind students, specialized computer software, or adaptive equipment.
Modifications to academic requirements, such as allowing a course substitution if a specific course fundamentally alters the nature of the program for a student with a particular disability and is not essential to the degree.
Students cannot be charged for accommodations mandated by law. This principle is crucial as it ensures that the financial burden of providing necessary adjustments does not fall on the student, preventing economic barriers to equal access.
Effective Communication
Institutions must ensure that communication for students with disabilities is equally effective to that provided to nondisabled peers. This means that disabled students must be able to comprehend and convey information with the same relative ease and accuracy as others.
Key Components of Effective Communication:
Timeliness of delivery: Information must be provided promptly so that students with disabilities have adequate time to process it and respond, eliminating delays that might disadvantage them (e.g., test instructions, critical announcements).
Accuracy in translation: Content must be accurately conveyed through appropriate auxiliary aids or services, ensuring that the student receives the same information without distortion or omission (e.g., accurate sign language interpretation, precise braille translation).
Appropriateness of the manner and medium: The method of communication must be chosen based on the significance of the message, the complexity of the information, and the specific abilities and preferences of the individual with the disability. For instance, a written note might suffice for a simple request, while a certified interpreter is necessary for complex academic discussions or legal matters.
Institutions are required to give primary consideration to the accommodation method requested by the individual with the disability, though they are not obligated to provide the specific auxiliary aid or service requested if an equally effective alternative exists.
Reasonable Accommodations in Practice
Understanding Reasonable Accommodations
Under certain circumstances, failure to provide reasonable accommodations constitutes a violation of federal law (Section 504 and ADA) and can jeopardize federal funding for the institution.
Misunderstanding of reasonable accommodations often leads to legitimate fears of lowered academic standards or the perception that students with disabilities receive unfair advantages over their non-disabled peers. This concern often stems from a lack of clarity regarding the purpose and limitations of accommodations.
Essential and Technical Standards: Students with disabilities are absolutely required to meet the essential academic and technical standards of their respective institutions, programs, and courses, irrespective of any accommodations provided. Accommodations are designed to provide access to education, not to lower or fundamentally alter the core learning objectives or professional requirements of a program. They enable students to demonstrate their mastery of the material in an alternative, accessible format.
Deference to Institutional Decisions
Colleges can deny accommodation requests for specific, legally defensible reasons. Courts generally accord deference to colleges with well-established and fair procedures for evaluating accommodation requests, recognizing their expertise in academic matters. However, this deference is not absolute.
Fundamental alteration in the nature of the program: An accommodation can be denied if it would fundamentally change the essential academic requirements or pedagogical standards of a course or program. For example, a request to waive all public speaking for a communications major might fundamentally alter the degree's core purpose.
Cost-effective alternatives exist: If a less expensive or less burdensome equally effective accommodation is available, the institution may not be required to provide the student's preferred, more costly option.
Undue economic or administrative burdens are imposed: An institution may deny an accommodation if it would impose significant difficulty or expense when considered in light of the institution's overall resources. This threshold is generally quite high for educational institutions.
Necessity of personal services not covered by the institution: Institutions are not typically required to provide personal attendants, individually prescribed devices, readers for personal use, or other types of services of a personal nature that are not directly instructional or programmatic.
Courts typically accord deference to colleges with established procedures for accommodating requests. This means that if an institution has a clear, consistent, and well-documented process for reviewing accommodation requests, and its decisions are based on sound academic judgment and disability expertise, courts are less likely to overturn them. However, this deference is limited, especially when evidence of bias, arbitrary decision-making, or unqualified conclusions by faculty (who may lack disability expertise) exists. Challenges arise if decisions are made without proper consultation or sufficient documentation.
Accommodation Process
Steps in the Accommodation Process
Identification:
Students must proactively identify themselves as individuals with disabilities seeking assistance. This is usually the first step, as institutions are generally not obligated to search for students with disabilities, nor can they assume a student has a disability or needs accommodations.
Colleges must provide clear, widely publicized guidance on how to request accommodations, including who to contact (e.g., Disability Services Office), what information is needed, and the procedural steps involved. This ensures that students are aware of their rights and the process to follow.
Documentation:
Students must provide current and appropriate documentation of their disability and the necessity for specific accommodations requested. This documentation serves to establish the presence of a disability and how it impacts major life activities, thereby justifying the need for adjustments.
Defined concept of disability: A physical or mental impairment that substantially limits one or more major life activities (e.g., walking, seeing, hearing, learning, concentrating, working, caring for oneself). This definition is critical for determining eligibility under federal law.
Documentation must be prepared by qualified professionals (e.g., physicians, psychologists, educational diagnosticians) who have expertise relevant to the student's reported disability. It must also maintain strict privacy considerations in accordance with FERPA and other relevant privacy laws, protecting the student's sensitive medical information.
Types of Situations Covered:
Protection under federal disability laws extends not only to individuals with actual, documented disabilities but also to individuals who are perceived as disabled by others (even if they do not have a substantially limiting impairment) and those with a history of disability. This prevents discrimination against individuals based on past conditions or mistaken assumptions, regardless of their current eligibility for specific accommodations.
Documentation and Its Requirements
Documentation of disability and the need for accommodation must typically include:
Test results: Standardized diagnostic tests (e.g., psychoeducational assessments for learning disabilities, medical tests for physical impairments) that objectively confirm the disability.
Clinical observations: Professional insights and findings from qualified healthcare providers or specialists based on their examinations and interactions with the student.
Psychoeducational histories: Relevant information about the student's past academic performance, educational interventions, and prior accommodations received, which can illustrate the long-term impact of the disability.
Colleges can require specific kinds of documentation based on the nature of the disability and the requested accommodation, but they must be mindful of not imposing unnecessary or overly burdensome requirements that could act as barriers to access. Documentation requirements should be directly related to the assessment of the disability and the requested accommodations.
Types of Accommodations
Commonly Approved Accommodations
Accommodations students must typically be provided, assuming appropriate documentation and necessity, include:
Time and a half to double time on examinations: This is a common accommodation for students with learning disabilities, ADHD, or certain psychological disabilities (e.g., anxiety) to compensate for processing speed differences, attention difficulties, or test anxiety without lowering the academic standard of the exam content.
Moderately reduced course loads: Allowing students who qualify to take fewer credits per semester while still maintaining full-time student status for financial aid or insurance purposes, enabling them to manage their disability symptoms or treatment.
Extra time to complete degree programs: Extending the typical timeframe for degree completion as necessary, provided there isn't severe impairment of curricular continuity or undue burden; this acknowledges that some disabilities may necessitate a slower pace without compromising content mastery.
Assistance with registration and financial aid applications: Providing guidance and support to navigate potentially complex administrative processes that might be challenging for students with certain disabilities.
Classroom modifications: Such as preferential seating to minimize distractions or optimize access to instructional materials, and note-taking assistance (e.g., peer notes, use of smart pens, access to instructor's notes) to ensure critical information from lectures is captured.
Priority in housing and parking: For students with mobility impairments or other health conditions that make standard housing or parking options inaccessible or significantly difficult.
Less Common and Unlikely Accommodations
Accommodations that may be less likely expected or sustained by courts due to potential fundamental alteration or undue burden often include:
Long-term leaves of absence or unlimited time for degree completion: While some flexibility is expected, indefinite or excessively long leaves can fundamentally disrupt the curriculum's structure and compromise the academic integrity of a degree program that requires timely progression.
Course substitutions or waivers: These are generally only approved if a specific course is not essential to the degree and, due to the disability, it fundamentally alters the student's ability to complete the core competencies. Waiving essential course requirements typically alters the academic standard of the degree.
Exemptions from attendance requirements: While flexible attendance may be a reasonable accommodation for episodic conditions, a blanket exemption from all attendance, particularly in courses where participation is an essential component, is usually denied as it can fundamentally alter the learning experience.
Reassignment of instructors: This is generally not considered a reasonable accommodation unless there are documented discriminatory issues, as it typically falls outside the scope of disability-related adjustments and infringes on institutional scheduling and faculty assignments.
Modifications to examination settings, particularly those impacting test integrity or direct faculty oversight, often trigger faculty concerns regarding fairness and impartiality in assessment. Such concerns need to be addressed through clear policies and secure testing environments.
Judicial Precedents on Fairness
Various cases highlight the ongoing discussions surrounding fairness in accommodations and the legal interpretation of what constitutes equal opportunity:
Example: A court determined that allowing a student with a learning disability extra time on the bar examination was not unfair. This landmark decision underscored that extra time served to level the playing field by compensating for the processing speed differences inherent to the disability, rather than providing an unfair advantage. It highlighted that fairness means ensuring equally effective testing conditions, not identical ones.
Casey Martin's case: This Supreme Court decision, involving a professional golfer with a circulatory disorder who requested to use a golf cart under the ADA, emphasized the importance of individualized consideration over generalized assumptions about fairness in a competitive system. The Court ruled that allowing Martin to use a cart did not fundamentally alter the nature of the game, thereby solidifying the principle that accommodations must be assessed based on the specific impact of the disability and whether the core elements of the activity remain intact.
These precedents affirm that the goal of accommodations is to provide equal opportunity by removing barriers, not to guarantee a specific outcome or to fundamentally change the nature of the activity.
Broader Implications for Academia
Contributions of Individuals with Disabilities
The presence of individuals with disabilities in academia challenges prevailing stereotypes and fosters a more inclusive and representative learning environment. Their unique perspectives and experiences can inspire innovative practices among peers, faculty, and administrators, leading to creative problem-solving and diverse approaches to learning.
Each accommodation case, beyond its individual impact, can serve as a valuable opportunity for the institution to critically examine and improve current educational methodologies, assessment practices, and curricula. This continuous reflection promotes educational excellence for all students.
The concept of Universal Design for Learning (UDL) promotes inclusive educational practices that anticipate and accommodate a variety of learning styles, needs, and disabilities from the outset. UDL principles aim to create flexible learning environments that offer multiple means of representation (how information is presented), multiple means of action and expression (how students demonstrate learning), and multiple means of engagement (how students are motivated), thereby reducing the need for individual accommodations and benefiting a broader student population.
Benefits of Disability Law and Regulation
Laws such as Section 504 and the ADA stimulate critical self-reflection in academia. They compel institutions to move beyond mere compliance and actively evaluate and enhance their educational standards and practices, ensuring they are equitable and accessible. This leads to a more robust and responsive educational system.
These laws emphasize the profound importance of considering the diverse needs of all students, especially those with disabilities, in the foundational design of curricula, instructional methods, and academic structures. This proactive approach leads to more thoughtful and inclusive program development, benefiting the entire academic community through enriched perspectives and improved pedagogy.
Conclusion
Providing reasonable accommodations is not merely a legal obligation but a vital principle for fostering equality and social justice in education. It ensures that individuals with disabilities have the opportunity to contribute their talents and pursue their academic aspirations fully.
Embracing disability law and its principles offers numerous benefits not just for disabled students, but for the broader academic community as well. By promoting diverse perspectives, challenging traditional norms, and inspiring innovative educational approaches, it ultimately enriches educational experiences for everyone involved and strengthens the institution's commitment to inclusivity and excellence.