Thank you. Welcome to the ADA Distance Learning Program. Today''s session is hosted by your regional Disability and Business Technical Assistance Center. We apologize to those of you that have had problems calling in, hopefully we''ve gotten that all taken care of and hopefully prepared for the next month''s session as well. Today''s topic is on Post-Secondary Education: the ADA and Section 54. It is currently real captioned on the Great Lakes website at www.adagreatlakes.org If you stick around at the end have today''s conference we have a couple more announcements on the July session and the new schedule for 2001. I would like to introduce our speaker for today Laura Rothstein. Laura is a Professor of Law and Associate Dean for Graduate Programs and Special Programs for the University of Houston Law Center. The majority of her service has been involved with issues of disability discrimination. She has authored several books and articles on disability discrimination and higher education and interestingly enough she has also served on the Law School Admission Council Board of Trustees involved in the application of disability law to standardized testing issues. Laura, welcome.
We are thrilled to have you with us today especially at a time when people are going through graduation and even though we are going into a summer break it is always a good time to talk about getting back into the swing of school things and looking at some ways that people involved in higher education can look to assuring that their programs and services are accessible with students with disabilities. So we are excited to have you here and very interested in your presentation. I will just turn it over to you then.
Thanks very much. Higher education and the ADA is one of my favorite topics to talk about. I''ve been involved with this issue for about 20 years, so I''ve watched it change and evolve, and what I have been asked to do today is to talk about the changes that the ADA has brought to the legal landscape for people with disabilities in higher education, and also to talk about Section 504. What I think is interesting is that while the ADA gets a lot of attention and people think that there have been a lot of change because of the ADA, in the area of higher education there are actually was not a substantial legal change, because Section 504 really applied to most institutions of higher education and really required pretty much everything that the ADA requires for higher education. So I think what has happened because of the ADA is that it has been a catalyst for increased activity in the courts and OCR investigations. And there has been increased attention for a variety of reasons of which I will touch on as we go along. What I would like to do is review the areas of major importance in respect to the ADA. First let me review why I think this has begun to change so much for higher education in 1990. The ADA didn''t really change a lot in higher education but there was so much publicity around its passage it created a much greater public awareness and also the number of students entering higher education who have now gone through public school systems and even private school systems with the protections of special education laws that went into effect in 1975 have now reached a very large number. So I think that and the fact that federal enforcement of Section 504 has increased dramatically in the last eight years and there are more attorneys that are representing clients than when the laws were passed in 1973. Let me turn now to what I think are the important areas of higher education. These are not necessarily areas where there are has been litigation or at least not yet has been litigation, but they are the areas that I think, from my watching of higher education, that I think institutions need to pay attention. I''m going to tell you first what those areas are because time constraints might prevent me from discussing all of them in depth, but the five areas that I think are the most critical at this point in time are first of all, learning disabilities, and that is the area where I get more questions than any other topic. The second area that I''ll talk about is reasonable accommodation issues, these include auxiliary aids and services, course waivers, extra time and so on. The third area involves students with psychological and substance abuse impairments and those create interesting challenges for higher education. The fourth area is health professional schools, medical school, nursing school and so on and there has been some interesting activity involving students with learning disabilities and sensory impairments and HIV and so on. The fifth area is faculty issues, which is becoming more of an area, an issue because there is no longer mandatory retirement and also the attention to post-tenure review. There are five other areas that I won''t be able to talk about today, probably because of time constraints but in the question period if you have questions I''ll be glad to try to touch on those as well. They include financial aid, which is an issue because for some financial aid, students have to be enrolled on a full-time basis and this can be a problem for students with disabilities. The problem with distance learning and the Internet, this very conference raises interesting questions about how do you ensure access through electronic curb cuts and other ways for technology. Another area is off campus programming, programs abroad, externships and so on. Another area that I won''t have time to touch on is programming provided to the public, continuing education programs, conferences for the public, alumni events, athletic events and so on. And finally, an area that is beginning to receive increased attention and I think an area that higher education institutions should focus on is housing and architectural barriers. There are certainly other areas but those are the ones that from my work I think should be the ones that institutions pay the most attention to. Let me turn first to the issue of learning disabilities. As I said, that accounts for most of the questions that I get from all over, from students, applicants, institutions, everyone. The increase in the number of individuals with disabilities requesting accommodations on standardized tests and in the college setting has increased dramatically in recent years and there has been a fair amount of judicial guidance on how to respond to these issues, but the Supreme Court has not yet directly focused on any of these issues. Probably the closest the Supreme Court has come is by remanding the Bartlet case (Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir. 1998) a year ago, and when it referenced it in the Sutton case, which is a 1999 Supreme Court case, one of three cases that involved whether someone is actually disabled. The Bartlet case which was mentioned in this case involved a learning disabled law school graduate. She was seeking accommodations on the New York Bar exam and the lower court had found that the New York Bar was in violation of the ADA by denying the accommodation she was requesting, which included additional time and some other accommodations. One of the issues that was addressed in that case was whether she even had a disability that would entitle her to protection. Some people believed that the Sutton case in 1999 and other cases indicated that when a condition is not a substantially limiting condition because of mitigating measures or self-corrective measures that the person is no longer currently impaired and therefore, because an individual who has a learning disability, if they have compensated for that learning disability, and virtually anyone whose completed law school will have to have some compensation for a learning disability, the argument is that they are not protected under the ADA. I don''t think that that is a correct reading of Sutton and I think that Marilyn Bartlet is probably still protected. In that case even though she had developed a number of compensating skills to address her learning deficiencies she was substantially limited in the major life activity of reading. It took her a great deal of time to read material. The circuit court was very clear that her reading speed was substantially limited, even with corrective measures. In addition to whether someone with a learning disability is even covered, there are a number of other issues that come up that face higher education institutions. These include particularly documentation issues. The documentation issues include who pays for the evaluation, who is qualified to make those evaluations, what deference is required to be given to the treating professional or the personal professional, as compared to the professional that works for or does the evaluation for the institution. Another documentation issue is how current does the documentation have to be, and what should the documentation include. Let me first turn to who pays. At the outset it is a fairly easy question. The ADA requires that the individual requesting accommodation or requesting special consideration has to make known the existence of the disability, and therefore, it is that person''s obligation to provide documentation and to pay for that. What is not as clear is what happens if there is a dispute, if the individual presents documentation that the institution says "I don''t think that this evaluator is qualified to make this assessment or I think this is too old" or something of that sort. Then the question is who has to pay if there is a dispute. This is an area that I think would benefit from regulatory or agency guidance to resolve that question, but that to this date has not been forthcoming. Another issue is who is qualified to make the evaluation. The major case on this issue is the Guckenberger case (Guckenberger v. Boston University, 974 F. Supp. 106 (D. Mass. 1997). Again, these are lower court cases so they don''t have the weight of a Supreme Court decision but they are cases where there has been fairly good discussion and I think that other courts are looking to these cases for guidance. The Guckenberger case involved a Boston University and a number of complex legal issues but one of the issues that the court addressed was what credentials or what expertise must the individual have in evaluating a learning disability or attention deficit disorder or attention hyperactivity deficit disorder. The Court in that case said that it does not require a PhD or an MD for a learning disability evaluation but higher credentials would be required for ADD and ADHD, because less is known about those conditions. Another issue that has been addressed in some courts is whether there is some particular degree of deference that must be paid to the personal physician, the person who has treated or evaluated the individual claiming the learning disability. This came up again in the Bartlet case. In that case the circuit court held, and I think this is good reasoning, that there are should be no automatic deference to the bar examining authority because that is not their area of expertise, but there are should also be no automatic deference to the treating professional. And so they looked at both evaluations and both assessments and took them and made their own assessment. But again, I think that is an area that would benefit from a little bit better clarity from the agencies charged with dealing with these issues. The issue of how recent, how current the documentation should be is kind of troubling. I think most institutions relied in good faith on guidance from the K-12 context under the special education statute which requires reevaluations every three years and so most institutions were saying documentation cannot be any more than three years old. Well, the Guckenberger case took issue with that and basically said it does not necessarily have to be in the last three years and the frequency should depend on whether the evaluating professional recommends reevaluation or not. So again, I think this is good reasoning but it is not clear if it is binding on other courts. The issue of standardized testing and its impact on individuals with disabilities has been a subject of current debate and current issues in various ongoing cases. The first kind of area where it tended to come up was involving the NCAA and athletic eligibility and in that particular case the NCAA or that particular standard they had required that an individual have a certain base standardized test score for eligibility and they had absolute cut-off for SAT scores and requirements for cores courses. There have been some private suits and a Department of Justice suit and some of those private suits are still ongoing. But in response to this I believe that the NCAA has changed some of its requirement and they no longer have absolute cut-offs or absolute requirements for cores courses, but now where the issue of a disability is raised, they will make an individualized assessment to determine whether the ability of the student is equivalent to someone with those particular scores. And I think that is a good way to go. Let me turn now to the second major issue that I get lots of questions about and that is reasonable accommodation. It does arise in the context of learning disabilities, where the student or the applicant for a standardized test is asking for extra time or to have it waived or they are seeking tutors and so on. But reasonable accommodation requests also arise in the context of sensory impairments, where an individual is wanting a reader or a sign language interpreter, oral interpreter, a note-taker, something of that sort. And the reason why it is an issue that comes up a lot, of course, is the cost. Providing those kinds of services can be costly to the institution and institutions with scares resources are going to be concerned about whether those accommodations are really necessary or required. The regulations under 504 which came out in the 1970s do answer some of these questions and these regulations have not been updated since I guess 1978 in the context of higher education. They clarify that certain accommodations need not be provided if they are personal in nature, but the regulations don''t necessarily flesh out which kinds of accommodations might be personal in nature. There is some case law on these issues in terms of how you determine whether something is a reasonable accommodation. The Supreme Court case of Southeastern Community College v. Davis a very, very old case indicates that a person doesn''t have to be accommodated if it would fundamentally alter the program or lower standards. So we have that base to start from. Another case is the Wynne case ( Wynne v. Tufts University School of Medicine, 932 F.2d 19, 26 (1st Cir. 1991) which has been treated like a Supreme Court case because it has such good language. It involved a medical student who was seeking accommodations on some of his medical boards, I believe in his third year of medical school. The medical school denied the request at accommodations and the Court when it reached that issue used really fine language in which it said that in order to determine whether something was reasonable or not it required that relevant officials, and that is significant, not just, you know, anybody in the world, but relevant officials must demonstrate that they considered the alternative means, the feasibility, the cost and effect of the requested accommodations and they came to a rationally justifiable conclusion that these would either lower standards or require substantial program alterations. If an institution has gone through those steps then courts are going to give them substantial deference if they deny an accommodation. The standard does not necessarily answer all the questions. There is still a lot of question about how much extra time, double time, time and a half, unlimited time and so on, and there is a need for some technical assistance. There is quite a bit of technical assistance out there are from various organizations and I think they have done a good job of trying to let people know what is out there in terms of helping to determine how much additional time. Again, I think this is an area that would benefit from some national federal attention guidelines, regulations and so on. Another issue that comes up with respect to reasonable accommodations is waivers. Math waivers, language, foreign language waivers and so on, and basically where the courts are on this issue is by applying the Wynne analysis that I just mentioned, where the institution looks at whether this is a rationally justifiable that it would lower standards or require program alteration. The courts have been quite deferential to institutions that have decided that foreign language is important to the liberal arts degree that they are granting. They have also been fairly deferential when there is a demonstration, for example that a math course is necessary for analytical reasoning and so on. So they do have to go through the steps of coming to those conclusions, but once they do that, I don''t believe I''ve seen any office for civil rights opinion or court that has held that waiver of foreign language or math must be allowed by the institution. Let me turn now to the third issue that is troubling for institutions and that involves psychological impairments and substance abuse. This of course is a concern because when you have events such as Columbine and high profile or high media about menacing threatening and scary students, there can often be a overreaction by the institution, that they want to get rid of any student or any individual who behaves strangely in any way. Institutions I think occasionally or sometimes will balance the potential for liability if someone is hurt on their campus with the potential liability if they violate the ADA. Unfortunately I think in some cases the ADA loses on this. The courts have been pretty deferential to the legitimate substantiated concerns about the threat but I think institutions would benefit from technical assistance as opposed to regulatory guidance on how to respond to these threats. This is an area where I think there is increasing information about this, particularly after Columbine as to how do you know whether someone who behaves strangely is dangerous or not. And again, I think we''re dealing with very incomplete knowledge, but I think there is some guidance on signals to watch for. It is also important to keep in mind that even if an individual has a psychological impairment or a mental problem of some sort or they have a substance abuse problem, even though that person may be disabled and may be entitled to some reasonable accommodation, they are not, because of those impairments, excused from misconduct. The fact that someone is thrown off of the basketball team because of a DWI that individual is not going to be able to turn around and say I am an alcoholic and you have to excuse this behavior. I think that is important for both the individuals and the institutions to keep in mind. Let me turn to the fourth issue which is health professional programs and I''ve focused a lot on that because I''ve found the cases quite interest. These have come up in the context of medical school, nursing school, dental school and so on. In some areas there have been sensory prerequisites, and by that I mean, an individual has to be able to hear or see to participate in those programs. There have been a couple of cases, the Case Western Reserve Medical School case (Ohio Civil Rights Commission v. Case Western Reserve University Medical School, 76 Ohio St. 3d 168 (S.Ct. 1996) involved an applicant who was blind who was not admitted. The institution said you have to be able to see to complete medical school. That was similar to the Davis case which involved a nursing student, and this is the 20 year old case, where she had a severe hearing impairment and they said to be able to be a nurse you had to be able to hear. The courts have been fairly deferential to institutions when they have established that those sensory impairments are a limitation. I think it is particularly the case in health professional programs, because of the concern about patient safety and health and those sorts of direct threat issues. So I think that is why you''re seeing those cases decided a little more stringently than in other professions. In the area of HIV, the courts have been pretty deferential to institutions saying if there is invasive procedures involved such as in dental school or surgery that excluding an individual with HIV does not violate the ADA. Then there have been a lot of learning disabled cases involving medical school and there have been six or seven or eight that have gotten quite a bit of court attention. The pattern I see in those it seems, is that medical students go through a couple of years of medical school and it is during the third year either a combination of the clinical rotations or these standardized tests that they start having severe difficulties. This is an area that I think would be useful for the medical school world to try to focus on to try to figure out if there are ways to determine earlier that a student with learning disabilities is going to have problems. Not that you want to screen people out, but if we are going find that these are qualifications that are essential, certain manifestations of the learning disability, wouldn''t that be better to figure that out before the person has invested two years. So I just raise that as an issue that I think the professional association ought to focus a bit on. Finally, let me turn to faculty issues. As I mentioned, this has come up because there is no mandatory retirement any longer and the increased political pressure, both private and public institutions, to have post-tenure review. I''m starting to see a number of new cases involving faculty members who claim a variety of disabilities and these come up because their performance has been adversely affected because of alcohol, mental illness, HIV, they have had to take time off for cancer treatment or other stigmatizing conditions. This is not an area that there is very much guidance on and it is one that I think institutions really ought to focus very hard on and the reason I think it is particularly critical is that faculty, unlike many, many kinds of jobs, faculty evaluations are often done by peers. So if there is a problem with performance, someone is showing up drunk in the classroom or someone is impaired because of a mental impairment or something of that sort, I''m very concerned about whether that information is shared and that it should not be shared with peer faculty members, but that how that gets taken into account in reaching an accommodation of perhaps a reduced teaching load or semester off or something of that sort. So I think that while the non-performance should not be excused, I think there are a lot of issues of being sensitive to an individual''s dignity, being sensitive to the process of privacy and confidentiality in addition to the discrimination issues, that higher education would do well to pay some attention to. The process, as I mentioned, that we have in higher education is not well suited to this kind of assessment and that is why I think it needs quite a bit of attention. I don''t know whether you want to stop and take questions at this point. I could spend a little bit of time on financial aid. There is no case law on that or virtually no case law, but the concern I have is that because most eligibility requires full-time enrollment, a lot of federally guaranteed loans require that. So I think an institution that implements federal guarenteed loans on that basis would not be in violation of the ADA or 504, but if it has its own policy that requires full-time enrollment and doesn''t make individualized assessments, that there are might be a problem. As I mentioned, with technology, I know there is a lot of attention now at the federal level about whether there are should be mandatory requirements, especially for institutions of education to make technology accessible. They''re looking at things like web sites and so on. I actually have some concerns about this. I think it should be looked at very carefully. A goal should be making technology accessible, but I worry that if you make small vendors or small web site operators subject to requirements that require a lot of technical knowledge and awareness that you may end up driving out a lot of people who provide valuable information to people with disabilities. So it may end up being counterproductive. I would urge that this be looked at very thought fully and very carefully, especially large institutions of higher education should do everything they can to make their technology accessible without being mandated. The off campus programming issue is interesting. There has not been a lot of litigation or really any litigation on this yet, but when you are having your summer abroad programs in Ireland and China and so on, we need to be thinking about what are we required to do, and there is virtually no guidance on this from any level at all. What I would encourage is at the very least that housing for these programs should be accessible, the classroom component should be accessible and that public information indicate the degree of accessibility. It becomes more problematic if you have, for example, a deaf student who needs an interpreter and this is also in a foreign country with a different language and that can end up being prohibitively costly or infeasible to even provide but the institution must still make that evaluation and not just assume that it is prohibitive. The issue of programming for the public, conferences, alumni events and so on, this is an area where I think it would do well for higher education institutions to keep in mind that they have been required to make these kind of programs architecturally accessible, to locate them in hotels that are accessible or other sites and to keep in mind a way of giving notice if those individuals who need accommodation, such as interpreters and so on know where and how to request those accommodations. Finally on housing and architectural barriers, the regulations under Section 504 don''t really help us very much in knowing what types of housing has to be accessible, and they don''t really address issues of dorms and residence halls and fraternities. They don''t tell us that all areas have to be accessible, only the ground floor and so on. So this is another area where I would like to see more attention. One area that is getting quite a bit of attention is sports arenas. There has been a lot of action and attention to line of sight and so on, mostly in large professional sports arenas. But higher education should take notice because eventually the advocates will get around to focusing more on higher education sports arenas and that is a wake up call where they really ought to be taking care. I guess I''ll turn it over for questions in a minute. I''ve mentioned several times where I think that there are issues that would benefit from agency guidelines and maybe even congressional amendment and so on. I don''t think that is likely to happen until after the election. I just don''t see Congress, for a variety of reasons, wanting to open this issue up. People who feel that the ADA is a good law are very wary of having this can of worms opened up. People who don''t think it is a good law, politically it doesn''t do well to raise this point right before an election. I don''t expect a lot to happen. Nor do I expect the federal agencies to do a lot right now. They are kind of in a winding down mode and waiting to see who is in the White House and what direction that will go. We are in a wait and see mode on a lot of issues and so the courts of course, can continue to be active and they have been. There is a lot of higher education/ADA issues out there are. A lot has been said and written in the last recent months, because of the 10th anniversary of the ADA that it really hasn''t accomplished all that it promised it would and so on. I think that is true. I think there is some real concerns about the ADA, particularly because of the narrowing of who is covered under the ADA but from my 20 year perspective I would say that my view is that there is a substantially better awareness, there is better technical assistance and there is better understanding of people with disabilities and the benefits of inclusion and having positive attitudes. So it is certainly not, as far as I would like it to go. I don''t think it has gone nowhere. I think that things are at least moving in the right direction and I would hope that they would continue to move that way and perhaps a little faster. With that, I will turn it over for questions.
Hi this is Julia from the Independent Living Center in Norfolk, Virginia. In regard to tenure with professors, professors who are tenured have an extreme power in their own scholastic setting and disabled students have actually experienced difficulties with special accommodations for exams. To what levels can students address the school system on this.
Well, the individual professor should not be the ones making the decisions about whether a student gets additional time or an accommodation. During my time at Houston I was Associate Dean for Student Affairs a few years ago and I would take in the requests for accommodations, and whenever I''d have a request that was documented for additional time I would send a note to the professor. I would not tell them who the student was, but I would say a student in your class has requested additional time. I would give the professor an opportunity to come back and say, well, additional time is a fundamental alteration of the program, which in a law school setting it almost never really is. But I think it is appropriate for a faculty member to have that opportunity to say "yes, speed is part of what I am testing or something else." But the faculty member should not be the one that is making that decision. It should be handled through an administrative process and one of the biggest complaints that I see the Office for Civil Rights addressing over and over is institutions that don''t have a good procedure for resolving disputes or addressing requests for accommodations. So if your institutions do not have a process for that, they really ought to be developing one.
To continue on that, even with something in place, some professors do have that tenure to actually rebut that. What can the individual do about that?
Then they should go to a grievance process. Almost every institution for higher education has some grievance process to resolve that dispute. So if the professor comes back and says "I''m simply not going to give an accommodation," there is an old case out of Berkeley, California, it was settled, but in the math department the student wanted additional time on a math exam and the professor said "I''m not giving it to you. There is academic freedom, I don''t have to give it to you." And the university went through its process and they told the professor well, he should do that. And the professor said "no, I''m not going to do that" and the institution did not implement a process to ensure that. Part of what happened out of that case was that Berkeley, as a settlement, developed a process for resolving those disputes. I think every higher education institution should have a good mechanism for resolving those disagreements and they should not leave it to the student to have to fight with the professor about that.
Is there anything in Section 504 limiting a person with a physical disability to participate in any health or professional programs.
No, there is nothing in Section 504 that limits the ability. Now, you have to be otherwise qualified and what that means is you have to be able to carry out the essential requirements of the program, with or without reasonable accommodation. So this is really going to be an individualized case by case, discipline by discipline evaluation. What I see are patterns in cases where the courts have pretty consistently allowed exclusion, for example, of someone who is HIV positive from medical professions that involve invasive procedures. The case involving the student who was blind who wanted to go to medical school, the court upheld that denial. But the 504 itself and its regulations don''t specifically speak to that. You have to look at the cases that have addressed those issues.
Laura on the same note of Section 504, if I am a special education student in high school and I''ve been getting accommodations maybe inside of the classroom and outside of the classroom, you know, outside of school, maybe the school is even providing me with a tutor after school, does that automatically mean that I''m going to get those same type of accommodations in post secondary education.
No, and I''m really glad you asked that question because what we are starting to see because of the ground swell of students who were getting a lot of accommodations are a couple of things. One is that they don''t realize that they now have the obligation to make known their need for accommodations. When they were in grade school and high school the obligation is on the institution to go out and identify you and to evaluate you and pay for the costs of that. So that is a big change. But the other thing is that just because you''ve been getting services under the special education statute IDEA, Individuals with Disabilities Education Act, that is a much more protective statute of the individual. It provides much more in terms of services and programming than is required in 504 and the ADA. 504 and the ADA are discrimination statutes, they do require reasonable accommodations, but they are not requiring that there be tutors and the degree of one-on-one support. So I think it is real important that students realize that their expectations need to change when they get into higher education.
We have a question from one of our staff members. We were working with someone on the phone that has a nurses license, but she has recently become visually impaired and she let her license expire and now she is trying to renew her license, but they will not let her renew her license because of her visual impairment. What is something that she can do?
Well, it may be that if they can establish that vision is essential for that particular job that she may not be able to do very much. Again, as I mentioned the courts are really pretty deferential to health care professional licensing agencies. If she wanted to challenge this she might try to get them to justify why vision is essential. I think it is an interesting question where someone already has a license because we know that there are physicians that have visual impairments. On the other hand, what nurses do so often involves things that require reading and seeing, my guess is that she may not be able to succeed if she were to bring a case on that.
The only thing that she wants to do is teach diabetic classes.
The question then is are you required to have the nursing license to teach diabetic classes. The oldest case in the book, the Southeastern Community College v. Davis case involved a nurse and the court was pretty specific there that you don''t have to slice out sort of a nursing license with these caveats. If you have credential requirements for a particular profession the person has to meet those, as long as those are legitimate requirements. It may be that her claim would be if she requests to teach a course and they say you have to have the nursing license to teach the course, she is probably going to be more successful in coming back and saying I don''t have the current nursing license because of the visual impairment, but I still have the knowledge that you need to teach this course. So I think she''d be more successful against, you know, whoever she is seeking employment from.
Thank you very much.
Hi I work as a special education advocate in Kingston, New York and we were under the impression that if a student has a second language exemption graduating with a high school diploma that that exemption would follow them to college and they would not be required to take a foreign language in college.
I don''t know where you''re getting that because there is nothing like that. Now there are may be some state laws that do that and I know there have been a couple of states where I''ve heard that they are doing that and New York may be one of them, but it is not federal.
So just check state laws.
And it may only be public state universities and institutions. I do not think that it necessarily applies to a private institution.
Great thank you.
One other question. If you could just restate that standard that was applied to the medical student. I think you said it came from the southeastern community college.
The Wynne case is the one that incorporates Southeastern Community College. In that case they held that if relevant officials came to rationally justifiable conclusions that it would either lower standards or... I can''t remember the exact language off the top of my head... that alternative means, feasibility, cost and effect, that it would either lower standards or substantially alter the program, institutions are not required. I mean, if you have to have a 2.0 to graduate you will never see a court saying that that is something that has to be waived. Never. If you have a fundamental requirement of a particular program, and they have met their standard of saying in order to be a physician you must be able to complete these procedures, once they have shown that, they are not going to require an institution to then waive that.
If a student at a college has a speech impairment and are required to take a foreign language, how do we get around that or how is that addressed?
Well probably what I would try to request is, is it the essential that they be able to speak the foreign language or what is behind the foreign language requirement? Most institutions justify it on the basis that we want a multicultural appreciation of the world and that kind of thing. And what I might be requesting is that they be allowed to waive the oral portion of it. The institution may come back and say here is why you have to be able to speak a foreign language, and if they can do that you may not be able to have it waived. Most impressive institutions that are more creative where they have done things like allowing computer courses, technology language, sign language and so on to be substitutes. Some colleges allow for culture courses to be a substitute. But, if they come back and say you must be able to speak and here is why, there are may not be an alternative.
Laura, let me ask you a question too, disclosure. I am a student with a disability that I''ve never needed an accommodation and I''m about to go into my freshman year of college. Do I need to be disclosing them or what if I find out halfway through the semester oh, I need an accommodation and now I''m failing this particular class where the accommodation might have been able to help me. Do we get to the point that at that point it becomes too late to disclose?
Well, that is a real interesting question it is one I''ve gotten a lot of questions about. It is a variety of context, one is the student doesn''t know they have the learning disability and so they don''t know that they are failing because of that until afterwards, then they get assessed. the other variation is they do know but they want to see if they can make it or they do know and they think that they can make it and really don''t think they need the accommodations or they''re not aware how to get the accommodation. The bottom line in all of those settings is basically this: the institution only has obligation to make accommodation to known disabilities. So even if it is not the student''s fault that they don''t make it known, if the student flunks out the only guidance that I have seen that is helpful to the student is the institution in addressing a readmission request should take into account the existence of the disability. It doesn''t mean they have to readmit them, it doesn''t mean they have to excuse the failure or the nonperformance, but they have to take it into account and consider it in the context of everything else. So if the student flunks out or receives an insufficient grade and they didn''t request the accommodations or they didn''t request them in a timely manner, they are left with I think no legal protection. Now, many institutions will try to be supportive. What we have done at my institution in many cases where this type of thing happened is, we will readmit clean slate which means, okay, you didn''t know you had this condition, we''ll let you start all over. The burden is that the student has to pay for that tuition a second time you have to make known the disability. That is the individual''s obligation.
Thanks. We have time for one more question and then we will turn it back to you for a closing comment.
If we have a vocational rehabilitation client that is going to a college or university, who is responsible to pay for the sign language interpreter?
The primary responsibility is actually with the higher education institution. Now, that doesn''t mean... and the courts have allowed that the institution can go back to vocational rehab and try to get vocational rehab to provide some of that service or some of the costs of that service, but at the bottom line the institution is responsible. Now, they can turn around and say this is unduly burdensome which would be unlikely to come up with a small college that doesn''t have a lot of resources. A large university is going to have a pretty tough time saying that they don''t have the resources to pay for a sign language interpreter particularly when they have large athletic budgets and so on. I really strongly encourage both the individual with the disability and the institutions of higher education to be real proactive in trying to get that resolved before the student shows up for day one of classes. We have had students at the law school where we have known in advance that they needed certain services. I can recall one incident where they were going to be fairly expensive services for which there was some eligibility for vocational rehab and we were very proactive and worked out an arrangement where the law school paid for a portion, the campus budget paid for a portion, and vocational rehab paid for a portion of certain kinds of interpreting services. This really ties into what I would make my closing remarks. You have all seen the posters where they show the individual with the wheelchair climbing the mountain and pulling himself up on the ropes and they say attitude is everything or something of that sort. I really do believe that in this area of disability law, attitude makes such a big difference, both on the part of the individual with a disability if they come in with a positive attitude in terms of I know I have needs that may be difficult for the institution to resolve and I''m going to work with them to resolve that. And by the same token, an institution that takes the attitude that individuals with disabilities have valuable contributions to bring and let us do what we can do to make sure that they can have full participation. If you have those kinds of attitudes you are very, very rarely going to have litigation or disputes and bad feelings. It is not that you won''t have difficulties to resolve them, but I would strongly encourage keeping a positive attitude.
Laura, thank you so much for joining us today. I know there are a lot of people out there are that still have questions so we hope to have you back maybe in the future for a follow up.
I would be glad to.
I know there are people who still have questions. Please feel free to call your regional Disability and Business Technical Assistance Center if you have specific scenarios that you would like to discuss at (800) 949-4332. We will also try to include some resources there are, some on-line resources like the Association for Higher Education and Disability and the Department of Justice''s settlement with Duke University and so forth. For those of you coming back in July we are excited to have with us Paul Miller from EEOC and John Wodatch from the Department of Justice to reflect back on the last ten years since the ADA has been passed, some of the ground breaking strides made under the ADA, where we are going and what their priorities are for enforcement. For those of you that are joining us we are asking that you submit your questions via e-mail at least one week in advance. You can go to the Great Lakes web site and follow the links for the distance learning schedule where the e-mail address is included. You will also be excited to know that the new schedule for the ADA Distance Learning Program has also been posted to the Great Lakes web site at www.adagreatlakes.org We have a monthly calendar from October through September of 2001 that has been posted this week so you can take a look at the calendar and we hope to have you all back for future sessions.