COURT CASE STUDIES
Nine Cases That Have Shaped Disability Services in Higher Education
by Brian Rose, JD (Rutgers, The State University of New Jersey)
1. Southeastern Community College v. Davis, 442 U.S. 397 (U.S. Supreme Court, 1979)
Summary: The nursing school rejected the application of student who had a hearing impairment. The school believed that the student would be unable to satisfy the clinical requirements of program. The school was unwilling to allow the student to waive out of the clinical components of program or to assign an aid that would help her to communicate in a clinical setting. The Supreme Court determined that Section 504 did not require the College of Nursing to admit student. The Court's rationale was that 504 did not prohibit institutions from establishing physical qualifications for admission to the clinical program and that the accommodations requested by student amounted to "affirmative action" that was not required under 504. The Court defined "otherwise qualified" as person who can meet all of the program requirements in spite of "handicap".
Key Points: Technical standards are permissible; the ruling begins to define "otherwise qualified"; it sets forth an analysis to determine what accommodations are reasonable (required) and what accommodations would impact the essential elements of a program (not required).
2. Pushkin v. Regents of the University of Colorado (10th Cir. 1981)
Summary: Pushkin was an M.D. with multiple sclerosis applying for a medical residency at the University of Colorado Psychiatry unit. He was denied admission. Those in the interview committee justified their decision to deny him admission, stating that (a) they were concerned how patients would react to Dr. Pushkin; (b) they felt Dr. Pushkin had not come to terms with his disability, and that this would affect his ability to treat patients; (c) Dr. Pushkin would not be able to handle the stress on the job on account of his condition; (d) and that Dr. Pushkin would require too much medical care to be able to satisfy the requirements of the job. The members of the admission1s committee gleaned all this from a 45-minute interview. Dr. Pushkin's therapist offered testimony stating his belief that Dr., Pushkin would be able to handle the stress of the job. Dr. Pushkin offered information on how he would handle his need for on-going medical treatment. The 10th Circuit found that the residency program had discriminated against Dr. Pushkin.
Key Points: Pushkin makes clear that there must be an individualized inquiry into the circumstances of each individual and that broad stereotypes of the limitations of individuals with various disabilities are not properly the basis of a decision that someone is not "otherwise qualified". Typical applications in higher education involve students in clinical placements or teacher education programs. Pushkin teaches that we may not stereotype students with disabilities when deciding whether they are otherwise qualified for such programs, but rather consider how each individual student can or cannot meet program requirements.
3. Wynne v. Tufts University School of Medicine, 976 F.2d 791, 932 F.2d 19 (1st Cir. 1992 and 1991 (en banc)
Summary: Wynne was a medical school student with a learning disability appealing his academic dismissal on the basis that Tufts had not properly accommodated his disability. Most critically, Wynne had wanted Tufts to refrain from using multiple-choice exams when testing him. Tufts refused this accommodation request. Initially the 1st Circuit was unwilling to accept Tufts's explanation as to why it would only use multiple-choice tests. The Court indicated that, while some deference was owed to an institution making academic judgments, such institutions nevertheless have a duty to seek out reasonable means of accommodating students with disabilities. The Court further indicated that to conscientiously carry out this duty, institutions should show that relevant officials considered reasonable means of accommodating a student, considered their feasibility and effect on the program, and came to a justifiable conclusion that providing such accommodations would result in lowering academic standards or substantially modifying the program in question. When the matter came back to the Court a second time, the Court accepted Tufts explanation that critical thinking skills were taught by use of multiple choice exams and therefore allowed the dismissal of Wynne to stand.
Key Points: Wynne tells us what thought process an institution should go through before refusing to provide an accommodation on the basis that doing so would lower academic standards and /or substantially modify a program of study. In essence, an institution should show that (a) officials with relevant duties and experiences considered the accommodation request; (b) that they meaningfully considered the impact on the program and the availability of alternatives; and (c) that they reached a rational conclusion that accommodations could not be offered. Wynne Clarifies "otherwise qualified" to mean "can complete program requirements with or without reasonable accommodation".
4. Ohio Civil Rights Commission v. Case Western Reserve University, 666 N.E.2d 1376 (Ohio Sup Ct. 1996)
Summary: A blind applicant to the CWRU Medical School was denied admission and filed suit under state disability law that used the same statutory language as the Section 504 regulations. The Court majority relied heavily upon an Association of American Medical College technical standard that medical school candidates must have an ability to "observe" in finding for the university on the basis that the student was not otherwise qualified. The majority opinion identified various tasks that the student would be unable to do such as insert an IV or directly observe an x-ray and make independent judgments. The majority ignored experiences of a blind medical school graduate (Hartman) who had attended the Temple University Medical School as not "probative". Dissenting opinion seemed to believe that reasonable accommodation existed given the experiences of Hartman at Temple.
Key Points: The fundamental question is how far one has to go to accommodate someone before the accommodation becomes "unreasonable". Both majority and dissenting opinions handle this issue poorly in our view. Hartman's experience at Temple was important, but not for reasons cited by the dissenters. Temple found it necessary to provide constant one-on-one assistance to Hartman, to exempt him from certain requirements and to do so at cost of help to other students. This amounts to a substantial change in the way in which the program is taught and the provision of personal aids that go above and beyond what relevant law requires. In that respect, if Temple's handling of Hartman is the only way that a student can complete the requirements, it is not reasonable to require this of an institution. The facts show what an example of "undue burden" might be. The decision also stands for the proposition that a school can require that its graduates be able to perform a full range of functions (i.e. to be generalists) and need not make an accommodation that exempts a student from certain pieces of a program that s/he cannot complete. For example, an arts school can require all graduates to complete "dance" even though they will not all necessarily have to dance to pursue their desired careers and even though students with mobility impairments may not be able to complete the requirement.
5. Guckenberger v. Boston University, 974 F. Supp. 106 (D. Mass. 1997)
Summary: A class action suit by students with learning disabilities was brought against Boston University alleging discrimination principally because BU would no longer approve course substitutions for a foreign language requirement for students with LD. Using analysis in Wynne, the court ultimately determined that, if BU could establish by such a "deliberative process" that allowing a substitute for a foreign language requirement would either lower academic standards or substantially alter the program of study, it could refuse to permit course substitutions for students with LD.
Key Points: The existence or merits of LD as a diagnosis were never called into question by BU or the court. Course substitutions are not per se required as an accommodation if the university can justify unwillingness to offer substitution through deliberative process outlined in Wynne.
6. Anderson v. University of Wisconsin, No. 87-2335. (7th Cir. 1988)
Summary: Anderson was an alcoholic law student who failed his first semester and was readmitted on 2 other occasions to try and complete his first year of law studies. Each time he was unable to complete his studies due to the return of difficulties related to alcoholism, including harassing behavior. When the law school denied Anderson readmission for a 4th time, he brought suit alleging discrimination and seeking reinstatement. The court refused to reinstate Anderson finding that the record had not established that he had overcome his alcoholism sufficiently to assume that he would be able to appropriate engage in the study of law.
Key Points: Individual inquiry is required, but when that inquiry shows that a student is unable to meet program requirements, schools may refuse to admit / readmit the student. Students who left the university due to behavioral problems associated with a disability can be required to demonstrate that they have been able to function without behavioral difficulties for a period of time before being readmitted.
7. Frank v. State of New York, 972 F. Supp. 130, (N.D.NY 1997)
Summary: Frank is one of a handful of federal court decisions where the court refused to accept into evidence medical testimony about "Multiple Chemical Sensitivity" (MCS), finding that such testimony did not meet federal evidentiary standards for reliability. Frank was an employment case, not a higher education case.
Key Points: DS offices sometimes tie themselves in knots trying to accommodate MCS. This case establishes that it is appropriate to call into question documentation of MCS and to refuse to provide accommodations on the basis that no disability has been established. MCS should be distinguished from cases where students have strong reactions to specifically identified allergens.
8. Sutton v. United Airlines Inc., No. 97-1943, (U.S. Sup Ct. 1999)
Summary: The plaintiffs were twins who both had poor vision when uncorrected by glasses. United Airlines refused to hire them as pilots given their poor uncorrected vision. The plaintiffs sued alleging discrimination on the basis of disability. The Supreme Court determined that plaintiffs did not have a "disability" and therefore were not entitled to invoke the protections of the ADA. The decision focused upon the definition of "disability" in the ADA. The Court determined that when assessing whether someone has a physical or mental impairment that substantially limits a major life activity, mitigating measures (eyeglasses in this instance) must be considered. Given that plaintiffs' corrected vision (i.e. vision wearing glasses) was relatively normal, the Court determined that they were not substantially limited in seeing.
Key Points: Sutton invalidated guidance previously provided in ADA regulations that stated that mitigating measures should not be considered when assessing whether someone has a disability. A typical application in higher education might be that students with ADD who take Ritalin could be determined not to be substantially limited in learning and thus not entitled to accommodations, if, when on Ritalin, they function at, better than or near to "normal". Sutton possibly leaves open the question as to whether someone can be required to take their meds before they are eligible to be considered for accommodations.
9. PGA Tour Inc. v. Casey Martin, No.00-24 (U.S. Sup. Ct. 2001)
Summary: A professional golfer with a mobility impairment sought the right to use a cart in PGA competitions as an accommodation to a mobility impairment. The court determined that it would not fundamentally alter the game of golf to allow Martin to use cart in PGA competitions.
Key Points: ADA does not require institutions to provide accommodations that would "fundamentally" alter a program of study. Decided under Title III of the ADA, Martin nonetheless gives public and private higher education institutions a perspective on what the current Supreme Court might regard to be a "fundamental alteration". Specifically, the court wrote that a fundamental alteration is something that either changes such an essential aspect of the "game" that it makes it a different game, or something that not only accommodates the person with a disability, but gives him / her an advantage over others and thereby fundamentally alters the character of the competition. It is not yet clear whether Martin portends a broad or narrow view of what might be a fundamental alteration in higher education.