• October 22, 2014

New Legal Questions About Disability Demand Colleges' Attention

New Legal Questions About Disability Demand Colleges' Attention 1

Leslie Herman for The Chronicle

The "midlife crisis" in popular cultural parlance begins at age 40. That's when people think about where they are in their lives and worry about what is ahead. It is also a time to take stock of what they have accomplished and what they want to accomplish in the future.

This year marks the 40th anniversary of Section 504 of the Rehabilitation Act, the first federal law to recognize special rights and remedies for people with disabilities. As colleges prepare for the new academic year and the arrival of thousands of students, including many with disabilities, this is an opportune moment to take stock of how this law, along with the 1990 Americans With Disabilities Act for which it paved the way, has changed higher education, and what issues we are likely to see in the future.

There's no question that disability-discrimination laws have had a significant impact on higher education for students, faculty, and staff. Because of these two laws, colleges now have accommodation policies for students with learning disabilities; campus buildings, sports facilities, and locations hosting public lectures and educational programs are accessible to people with mobility and sensory impairments. And colleges must consider how to appropriately protect at-risk students, like those with HIV, in situations like an outbreak of chickenpox on campus.

New challenges have arisen in the wake of tragedies like the shootings at Virginia Tech, as colleges work to create policies that strike the difficult balance of protecting both the public and the privacy of people with mental-health problems, as well as making sure those individuals are not deterred from seeking treatment.

Colleges must also decide what to do about students who are self-destructive (for example, because of an eating disorder) or suicidal (because of severe depression), since the Department of Education's Office for Civil Rights determined in 2011 that they are limited in how they may adversely treat students­—for example, through academic expulsion or requiring a behavior contract before readmission—who present a danger to themselves.

Such decisions should be based on individual circumstances, but it's unclear now how much flexibility colleges have, since the Education Department seems to prohibit intervention even when the facts justify it. Amid the confusion, most colleges recognize the importance of finding ways to provide students with mental-health treatment that is accessible, confidential, and affordable.

Those concerns would not even have been considered 40 years ago. Section 504 was passed in 1973 without much fanfare and little discussion by Congress. It provides that: "No otherwise qualified individual with a disability ... shall, solely, by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." For several years after its passage, there was little awareness and understanding of the law's impact. Few students with disabilities had received the benefits of special education that would have prepared them for college.

Obviously, much has changed since those early days. Looking forward at 40, what issues will Section 504—and the ADA—be raising for colleges? Here are some that are already posing questions:

  • Animal regulations. Policies on service animals, whether for physical or emotional support, are overlapping and confusing. Titles II and III of the ADA define a service animal as a dog or a miniature horse, although Title II concedes that there may be "situations where using a horse would not be appropriate." The regulations require that the animal be trained to do something to assist the person with a disability, but does not specify the extent of the training nor the type of assistance.
  • Further, the Justice Department, in its interpretation of the ADA, seems not to have considered the unique nature of a campus setting. Although Titles II and III exclude emotional-support animals from their mandates, the Fair Housing Act guidance expects housing providers to provide "reasonable accommodations," which might include such animals. It is unclear how this applies to the range of campus housing and what documentation might be required in a housing setting. But how to also accommodate individuals who are allergic to certain animals or have phobias, also potentially covered disabilities? What, then, is a college's obligation with regard to emotional-support and other service animals in its dorms? Its libraries? Its lecture halls?
  • Food allergies. What is required (or should be) with respect to food for those with peanut allergies or gluten sensitivity? Does the law require students to be exempt from mandatory food plans if alternative allergen-free food is not available? Are colleges required to provide alternative food even if they don't have mandatory meal plans?
  • Returning veterans. Many soldiers returning from Afghanistan and Iraq arrive on campuses with traumatic brain injuries and post-traumatic stress disorder. Colleges are permitted to (and should) have appropriate policies requiring documentation of the disability and how it relates to the requested accommodation. But what should be done when the military agencies are slow to provide needed documentation to the college, and the students who have served their country need the accommodations before the documentation is provided?
  • Technological barriers. New technology has been both positive and negative with respect to disability issues. Students with mobility impairments now have access to vast amounts of information without having to go to a library that may be less than ideally accessible. On the other hand, students with visual impairments may not be able to do assigned extra reading in the instructors's online syllabus because it is not in an accessible format. Most faculty members have not even thought about that in planning their required and suggested readings.
  • Web sites provide a range of essential, useful, and interesting information, often with imbedded videos. What degree of access for individuals with hearing or visual impairments is required on those sites if they are part of a curriculum? And outside the classroom, should football fans with hearing impairments expect closed captioning on the stadium's Jumbotron?
  • Off-campus programs. Almost 275,000 Americans studied abroad in 2010, up from about 144,000 in 2000. Must colleges today provide students who have hearing impairments an interpreter when the student takes a semester abroad in China? Can colleges even legally sponsor such programs in locations that are not architecturally accessible, whether across the globe or across campus?

These are not easy questions, but like those that came before, they are well worth asking. Students, faculty, and staff have benefited tremendously from Section 504 and the ADA, as has the larger society. Anyone pulling a rolling suitcase or pushing a stroller appreciates curb cuts and ramped entrances, for example. But in a much greater sense, having individuals with disabilities receive an education and become productive members of society is a benefit that affects us all.

Today, federal agencies are giving even greater attention to writing regulations and issuing guidelines on disability issues that affect college campuses, and the courts continue to deal with a wide range of issues affecting higher education. The challenges will continue, and issues we have not even imagined will arise. It's good to know that there is, indeed, life after 40 for disability protections on the nation's college campuses.

Laura Rothstein is a law professor at the Louis D. Brandeis School of Law at the University of Louisville.

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