21st Annual National Conference on Law and Higher Education

Stetson University College of Law

Clearwater Beach, Florida

February 10-12, 2000

THE SCOPE OF THE UNIVERSITY’S RESPONSIBILITY TO ACCOMMODATE DISABLED STUDENTS

Teri B. Goldman

Blackwell Sanders Peper Martin, LLP

St. Louis, Missouri

Post-secondary students with disabilities are protected from discrimination by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, et seq. (“Section 504”), and the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”). These laws prohibit discrimination on the basis of disability,[1] and as applied to colleges and universities, require institutions to make reasonable accommodations for students with disabilities. In most instances, the two statutes impose parallel requirements upon colleges and universities, and court interpretations of the two are largely interchangeable.

The enrollment of persons with disabilities in post-secondary education has increased. This may be partly a result of the identification requirements of the Individuals with Disabilities Education Act (“IDEA”).[2] It also may be the result of the expansion of post-secondary educational opportunities to previously unrepresented populations as well as the spiral effect of legislation resulting from the requirements to accommodate disabled students. With this increased enrollment, there has been a concomitant increase in the litigation with respect to the accommodations that colleges and universities must make for disabled students. In such litigation, to prevail on a disability claim, a student must prove that (a) he or she is disabled or handicapped within the meaning of the laws, (b) the student is otherwise qualified for participation in the educational program, and (c) the institution denied the students request for a reasonable accommodation. See Bercovitch v. Baldwin School, Inc. 133 F. 3d 141, 154 (1st Cir. 1998) (applying ADA and Section 504 to private school); Axelrod v. Phillips Academy, Andover, 46 F. Supp. 2d 72, 83 (D. Mass. 1999) (applying ADA to private high school).[3] Each of these elements implicates an institution’s policies and procedures.

Definition of Disability. Many higher education disability cases address whether a student is “disabled” under federal law. Under both Section 504 and the ADA, a disability is defined as “a physical or mental impairment which substantially limits one or more . . . major life activities.” See 29 U.S.C. §§ 706(8)(B); 42 U.S.C. § 12102(2)(A). Federal regulations further define “major life activities” to include such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, learning, and working. 45 C.F.R. § 48(j)(2)(ii). The Supreme Court added its interpretation to these definitions in a trilogy of 1999 employment cases that promise to have a significant impact on the threshold requirements for student claims.

Some impairments obviously substantially limit a major life activity. For example, a person who is blind is substantially limited in the major life activity of seeing. However, what about the individual who is near-sighted? Whether an impairment substantially limits a major life activity is determined on a case-by-case basis. Sometimes, such impairments limit activities if the impairment goes untreated, but is not limiting when the individual is treated and takes corrective medication or other measures. In the past, courts have disagreed about whether the effect of the impairment should be evaluated with or without such mitigating measures. However, this issue was settled by the Supreme Court’s recent decisions in Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999), Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999), and Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2169 (1999). In each of these cases, the Court concluded that mitigating measures must be considered in making the determination as to whether an individual is disabled for purposes of the ADA.

In Sutton, the plaintiffs were twin sisters who were near-sighted. 119 S. G. at 2143. They had been working as pilots for many years; but, when they applied to be commercial pilots for United Airlines, they were turned away. The twins had 20/20 vision when wearing glasses, but without correction their vision was worse than 20/100, which was the weakest uncorrected vision United would accept among their pilots. The twins claimed that they were disabled because, without mitigating measures (corrective lenses), their impairments would be disabling, and that when United refused to hire them because of their impairment, the company regarded them as disabled. See Id. at 214344.

The Court held that the twins were not disabled under the ADA because they are not “substantially limited in a major life activity” when they wear glasses. Concluding that ADA plaintiffs’ impairments are to be evaluated in their mitigated state, the Court rejected plaintiffs’ argument that they should be evaluated in their unmedicated state as an “impermissible interpretation,” contrary to the plain meaning of the ADA. See Id. at 2145-46. The Court’s conclusion was predicated on several grounds. First, the definition of disability as an impairment that “substantially limits” a major life activity is in the present indicative tense, indicating that it applies to people as they stand before an employer (or a court) in the real world, not as they “might,” “could,” or “would” if they did not mitigate their impairments. See Id. at 214647. Second, the ADA requires that disability be determined on an individual basis, rather than by lumping all individuals with some impairment into an automatically disabled group. See Id. at 2147. Third, the initial “findings” section of the ADA identifies 43 million disabled Americans. The Court viewed this headcount as strong evidence in support of its reading of the ADA because (a) requiring inclusion of all individuals who would be disabled if unmitigated would result in many more “disabled” Americans -- more than 160 million -- than provided for in the statute; and (b) the studies on which the 43 million was apparently based reflect the assumption that only those who are disabled even when mitigation is taken into account are truly disabled. See Id. at 214649.

The Court also concluded that merely because United imposed a physical requirement on job applicants did not mean it viewed individuals who could not meet that requirement as disabled. Rather, an employer violates the ADA only when it bases an adverse employment action on a “real or imagined” impairment that is regarded as substantially limiting a major life activity. Id. at 2150. As the Court explained, “an employer is free to decide that physical characteristics or mental conditions that do not rise to the level of an impairment . . . are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” Id.

Thus, assuming without deciding that “working” is a major life activity (an assumption about which the Court expressed serious doubt), the Court reasoned that, at most, United regarded Sutton’s vision impairment as precluding her from working only as a commercial airline pilot. In that situation, working in that limited capacity did not qualify as a major life activity because airline pilot is not a “broad class of jobs.” Therefore, the plaintiff was not substantially limited in her ability to work. See Id. at 215152.

Similarly, the plaintiff in Murphy, whose job as a mechanic required him to drive large trucks on road calls and in road tests, was fired when he could not qualify for a valid U.S. Department of Transportation (“DOT”) health card because his blood pressure exceeded DOT health standards. See Id. See also Murphy v. United Parcel Service, 946 F.Supp. 872, 87576 (D. Kan. 1996) (detailed factual findings), aff’d, 119 S. Ct. 2133 (1999). Without that card, the plaintiff could not legally engage in an essential part of his job. However, with his blood pressure medication, he was able to perform all of the daily activities an unimpaired person could, other than repetitively lift very large weight. Without the medication, the plaintiff’s blood pressure would have been high enough to require hospitalization.

In pursuing an ADA claim, Murphy alleged that he was entitled to protection under the ADA because he was disabled by his high blood pressure, which would incapacitate, if not kill, him if he stopped mitigating its effects with medication. Moreover, he argued that even if he wasn’t disabled, UPS regarded him as disabled. However, as in Sutton, the Court held against him, incorporating Sutton’s reasoning by reference. The Court concluded that, like Sutton, Murphy must be assessed in his mitigated state, that is, while medicated. See Id. at 213739.

The plaintiff in Albertson’s, also a truck driver, was fired when he did not qualify for a DOT health card. 119 S.Ct. 216566. The plaintiff in that case suffered from severe amblyopia, or “lazy eye,” such that he is practically blind in one eye. However, he managed to adapt to his vision impairment, and was able to perform most functions as any other person with normal stereoscopic vision. Unlike Murphy, however, this plaintiff obtained a waiver from the DOT as part of a study on the safety performance of monocular drivers. His employer, though, refused to reinstate him and instead continued to rely on the base DOT requirements. See Id.

Speaking to the issue of disability, the Court corrected the lower court’s approach to disability determination. Id. at 2167. First, the Court stated that merely performing a major life activity in a “different manner” was not a “significant restriction” and, therefore, does not substantially limit that activity. Rather, the ADA is concerned “only with limitations that are in fact substantial,” not with those that are merely different. See Id. at 2168. Second, courts must consider a plaintiff’s ability to compensate for his impairment. Mitigation by the body’s own systems must be considered on the same basis as mitigation by medication and other treatment. See Id. at 216869. Third, the Court emphasized that all disability determinations must be made on an individualized basis. See Id. at 2169.

Now, when determining whether an individual is “substantially limited” in a major life activity, a court must consider the effects of any corrective measures that person is taking, including medication. See Sutton, 119 S. Ct. at 2146-47 (“`disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken”); Murphy, 119 S. Ct. at 2137. But in a more general sense, Sutton, Murphy, and Albertsons indicate that plaintiffs should be viewed as they are in real life, taking into account the impairments from which they suffer and the things they do to mitigate those impairments.

Taken together, these cases emphasize that the ADA requires individualized disability assessments. Thus, students clearly cannot base their claims of disability on a mere diagnosis. Moreover, colleges and universities should not base decisions about reasonable accommodations solely on a student’s diagnosis. For colleges and universities, the implication of the Court’s trilogy of cases means policies and procedures should be designed to avoid decisions with respect to student’s disabilities that are based on broad classifications of impairments or on stereotypes about the significance of the limitation created by the impairments from which students suffer. Significantly, the mere fact that mitigation exists does not necessarily mean that an individual is not disabled. Under the ADA or 504, an attempt at mitigation may fail; it may reduce the severity of an impairment, but not to a level at which it ceases to be disabling; or it may be disabling in its own right. This means that institutions must have legitimate, nondiscriminatory, and individualized explanations for adverse decisions regarding who is deemed disabled or what accommodations will be provided.

This recent Supreme Court precedent already has been applied in the higher education setting. More specifically, in Pacella v. Tufts University School of Dental Medicine, 66 F. Supp. 2d 234 (D. Mass. 1999), the plaintiff, a former student who suffered from severe amblyopia and myopia, sued under Section 504 and the ADA after he was dismissed for failing to perform at an acceptable academic level. With corrective lenses, plaintiff still suffered from slightly myopic monocular vision which left him without depth perception. However, he used visual cues to compensate for the lack of depth perception and the corrective lenses “allowed him to function ‘like a normal person [except it was] a little bit harder for him [to read] really fine print.’” Based on this fact, the court concluded that such an impairment did not sufficiently distinguish him from the general population so as to be a substantial limitation on the major life activity of seeing. In analyzing the merits of the plaintiff’s case, the court credited the plaintiff’s statements that he had some problems with academic instructional devices such as the blackboard and overhead projector, that he could not use a coded answer sheet normally, and that he was somewhat slower than his classmates when he performed assignments requiring relief delineation. Although the court acknowledged these problems could limit the general process of learning in many settings, the plaintiff failed to demonstrate he was substantially limited in his ability to learn. Accordingly, the court granted summary judgment in favor of the University because the plaintiff was not disabled as defined under the federal laws. See also Bercovitch, 133 F.3d at 155-56 (recognizing that Attention Deficit Hyperactivity Disorder could be disability, court nevertheless held that, under individualized determination, plaintiff did not demonstrate such an impairment substantially limited his learning ability, because plaintiff’s grades remained above average).