An Interview with Laura Rothstein about the Americans With Disabilities Act

The Americans with Disabilities Act turns a quarter century old this year, and is increasing complicated each year in its application. In this Campus Law Considered podcast, Laura Rothstein talks about the various and complicated elements of the Americans with Disabilities Act—undue hardship, “otherwise qualified,” and the very definition of “disability” itself.

For nearly four decades, Laura Rothstein has been an advocate for disability rights,and a college administrator. She joined the Louis D. Brandeis School of Law at the University of Louisville as Professor of Law in 2000. During her 37 years in legal education, she has written 15 books and dozens of book chapters on disability discrimination.

The Americans with Disabilities Act Turns 25 Years Old: A Free podcast with Laura Rothstein

Phil Busse: Laura, thank you so much for joining us on the phone to talk about the Americans with Disabilities Act, and to talk about the delivery of services to students. And this has been a big part of your career, is that correct?

Laura Rothstein: That is correct. I was very fortunate that I got started writing and teaching about disability law in 1980, so I've been at this for about 35 years, and I was kind of one of the early people who saw the overlap between, of course, it wasn't the ADA then. It was the Rehab Act, but how it would come into play with the higher education world because I was editing the Journal of College and University Law at the time at West Virginia. And then I got to sort of practice what I preach by, I was associate dean for students at University of Houston Law Center for about six years. And then when I came to University of Louisville Brandeis School of Law, I was the dean of the law school for five years. So I got to see in practice how these things worked. And I've worked on a lot of national committees and so on, to develop policy. So I've kind of watched the law evolve and grow, and it's been really interesting and a privilege to do that.

PB: Yeah, I'm so pleased that you're able to join us, and help give some insights. And I hate to start out with maybe what's too broad of a question, and perhaps even a negative way to approach, but is it possible to say where colleges are still failing the ADA and accommodations most?

LR: Well, colleges have gotten a lot better than they were in 1973 when the Rehab Act was passed. It really took about ten years before colleges did anything, or almost anything, primarily because they just didn't know about it. It was new. It wasn't enforced. And we also didn't have students who were college age who'd gone through special education yet. So college was really pretty bad about architectural barriers, accommodations, the whole range of issues, until about 1985, they started paying attention.

So it's gotten a lot better, but there are a number of areas where I think they could increase attention. Some of that requires resources. Some of it requires other things. But I think a more proactive area, and this is one that's, in the news all the time, the most recent Chronicle of Higher Education had a big story about mental health issues on campuses. The number of students, the percentage of students with depression and other mental health problems is just really, really high, and how to provide services to those students is a real problem.

I think universities have gotten better about how to intervene if there's a crisis kind of situation, post-Virginia Tech policies and teams that deal with responses to issues, but really providing the ongoing services is an area where they could use some attention.

Another area which surprises me is that the students who come out of K-12 with their IEPs and getting intensive related services and education, come to college expecting the same level of service, and I think both at the high school level, and at the college level, the parties aren't doing a very good job of communicating to these students that it changes when you get to college. So I think the transition from K-12 to higher ed still needs attention, primarily in the way of communication.

Free Report: How to Respond to Signs of Depression in College Students

PB: I wanted to circle back . . .

LR: And another big issue is technology, and we can talk about that later, but I think that is a huge, sleeping giant, if you will, and I'm, I've been talking about this for a few years, but only recently has there started to be more of an awareness and attention on that. And so and the architectural barriers on campus still could use some attention, although, that's improved quite a bit. And maybe we could talk about professional education programs because that is a huge issue that is very difficult to deal with. So there, those are just some of them.

PB: Yeah, and disability law is such a far-reaching topic. And I want to circle back a little bit and talk about the definition of, quote, unquote, disability. It certainly seems like it's changed in scope. Has this made it increasingly complex to accommodate students?

LR: I don't know that it's made it, well, I guess, yes, it has made it more complex. I think the challenges come because of issues like learning disabilities, ADD, ADHD, colleges trying to figure out the appropriate level of documentation, which we can come back to because that's a huge issue in and of itself, but also some new conditions such as stress and test anxiety. Is that a disability? How do you respond to that? And then issues like allergies to food, celiac, and peanut allergies, and what do you do on campus?

So you have this wide array of conditions that can include mobility impairments, sensory impairments, learning disabilities, mental health problems, chemical sensitivities. And then you have the issues of, this is not just what happens in the classroom, but it's also, what do you have to do in the library? What do you have to do at the sports events? What do you have to do in the food service and the residence halls?

So for, I think the definition wasn't as big an issue for colleges and universities, with the exception of probably the learning disability issue, and the ADA amendments clarified, it's supposed to be read broadly. I think the newest complexity is, what documentation can a college or university ask for or require from what professional? How recent does it have to be in order to get accommodation? And that comes up primarily with the issue of learning disabilities.

PB: And let's talk about that a little bit. I mean, the documentation, and some of the elements of what a student needs to prove. So one of the elements is the otherwise qualified requirement. How did that come about, and how has that been modified and adopted in subsequent years?

LR: Well, the otherwise qualified is intertwined with the documentation, but that was actually a result of the very first Supreme Court decision to address any issue of anything under the Rehab Act. And it came up in the context of a nursing student, someone who wanted to go to a, through a nursing program, who had a very severe hearing impairment, and she was denied admission. After a very thoughtful determination by the nursing school that she would not be able to meet the licensing requirements because of danger to the patients.

And the Supreme Court, in 1979, in Southeastern Community College v. Davis, determined what it meant to be otherwise qualified, and that means able to carry out the essential requirements of the program, with or without reasonable accommodation. And so you have now the burden on the colleges is, what are those essential requirements? And that's a little bit challenging for schools because a, you know, meeting a grade point average, paying the tuition, is kind of the easy one. It is harder, once a student gets into a program, about, is it essential that you go full time? Is it essential that you be able to hear or see if you're in a certain kind of professional education program? So those complexities are really, really quite challenging.

So but the documentation issue really evolved more out, more recently out of the 2008 amendments to the ADA because the definition was clarified to be intended to be broad, and regulations and guidance from the government, federal government, about, what can a college or university now require in terms of documentation? There was some indication that it could be a range of things, and it could, it should, they should consider that if someone had an IEP, or they've gotten prior accommodations, but there are supposed to have been in a similar setting.

And I think some advocates for students have over-read that, and have tried to make the case that whatever you got before, you get from then on. And that's really not what, I think, the law intends or requires. That should be given consideration, but what you had in a high school math class might be very different from what you would need in a college or university setting on a standardized test, and so on, so I think a lot of the details of what is similar.

The other issues that come up is, how recent does it have to be? And there's not really a magic number. It kind of depends on the situation. It should but appropriately recent, so some learning disabilities that are determined later, when someone is an adult, it might be more recent than that. But others, it could be, if someone was legally blind from 20 years ago, I don't know that they need to have a new eye test to provide that to the person.

Then the other issue, another issue is the appropriate professional, and there are different levels of professional expertise in diagnosing learning disabilities. And then the next question is, not only does the person have a documented disability, but does that relate to the accommodation that's being requested?

So that, there's a lot of steps in there, and it's challenging for a student service office to make sure they're going through all those hoops to do it, and to do it in a way that's fair to the student, and that's not unduly burdensome to the student, but also fair to the other students, so that you're not giving accommodations that aren't appropriate.

PB: And also fair to the institution itself. I mean, that, there are obviously, as you've been talking about, there are limitations to what accommodations need to be provided. How much does the financial element, or any financial burden, factor into those decisions, and what accommodations a university or college must make?

LR: Well, interestingly, there has been virtually no case law, and I follow the cases pretty closely, anything that comes up in higher ed and disability world. And I have not seen the issue of undue burden raised in litigation at all, or decided. I'm guessing it's probably been raised, but I'm guessing that many universities where that they settled the case, and resolve it through some other way.

Because, I, my theory, I have a theory about why that is, is that universities, if you're going to say it's unduly burdensome, then they're going to have to demonstrate that they don't have the financial resources to do that, and that creates complexities of issues of what budget is used. Large university, huge university that has a big athletic program, that could be quite difficult to say, we can't afford to do this, but yet, we can afford to do all these massive things, and build new buildings, and so on. So I think rather than litigate about that, they just resolve it by a settlement.

One of the issues that's really, that I hope that people who are in the student service professions take away from this is, and it relates to finances, is the concern about if you just give them what they had before, and then you're passing them through the system, and then the next program is faced with, well, I got this before. Why can't I get it now?

Let me give you the example. You have a student who graduates from high school, had an IEP, has a learning disability, got additional time for exams, maybe got double time, triple time. They come into, let's say, a community college, a two-year college, that doesn't have a lot of resources to evaluate whether that documentation really relates to the accommodations being requested. So it may be cheaper, it may be simpler to just say, okay, you've got triple time, or you've got double time. We'll give that to you without a very rigorous or thorough, and this is, I think, recognizing that many community colleges are really, really under-resourced, and they have students coming in at kind of very late in the enrollment process, often, so it's more challenging for them.

Then that student finishes those two years, tries to go to a four-year college. Depending on the university, they may or may not be more rigorous about that. But the problem is, it's created in that student, an expectation that they're always going to get what they got before, and that really creates a challenge when they get to professional education because law schools, medical schools, and so on, are going to be more rigorous about, what do you have to demonstrate? So and then, once you get into the licensing, it's a whole, so it's a whole continuum of documentation issues that I think needs to be kind of more consistently handled along the pipeline.Free Report: Violence Against Women Act (VAWA): Sexual Violence & College Students

PB: And that seems like a, potentially a difficulty for the universities is, it puts them in the position of needing to say no, or at least to outline limitations. Can you talk a little bit about the case Wynne v. Tufts School of Medicine?

LR: Yes. It's not a Supreme Court case, but I treat it like a Supreme Court case because the reasoning in it is so well-thought through. And it was a case involving a student in a medical program, and he had difficulty. The first couple years of medical school are academic, primarily, and he had difficulty with some of the multiple-choice exams, and needed to take them over again. And finally, after he had difficulty even taking it several times, the student asked, well, I don't want to have a multiple choice exam. I'd like to have the exam in a different format, such as an open-ended questions, and so on.

And initially, the medical school just said, no, we're not going to do that. And with, and so it went up to an appellate level, and the initial appellate level established what I think is the good standard, which is you can't just say, no, without having appropriate officials come to a rationally justifiable conclusion that not providing the accommodation would unduly burden, or would fundamentally alter the program. So they sent it back down. Ultimately, the, when it came back again upon appeal, they found that they did go through that rigorous process the second time, and they determined that it would not, it would be a fundamental alteration to not give him a multiple choice test when everybody else is taking the same test.

So there still is quite a bit of deference to higher education, but you can't just say, because I told you so, and just expect that that's going to be a sufficient answer under the law, and that the courts are going to accept that. So it requires a thoughtful process. I don't, you know, depending on what's being requested, I don't think it requires hours and hours, and committees and committees to meet, but it's going to become more of a situational determination.

Medical programs and nursing programs, I think, have actually gotten much better about, early on, establishing what are the essential requirements, being able to manipulate, being able to see, and so on. So they're better positioned to say, no, you have to be able to read x-rays, or you have to be able to do this, or it's going to fundamentally alter the program. So that's where I, you've seen an evolution in how the institutions have reacted to the interpretations of the law.

PB: Going back to some of the elements you talked about, students needing to show documentation, and then also just the Tufts School of Medicine case you just discussed, where does then, for lack of a better term, but burden of proof, is that a shared responsibility, or . . .

 

LR: It kind of shifts back and forth. I think basically, the institution is on a burden, has the burden of demonstrating that its requirements are that to lower, or to change anything, would be a fundamental alteration. The student has kind of the initial burden of coming in and saying, I have a disability, so that's where the initial burden of demonstrating that they have the documentation that indicates that they're, they have a right to ask for the accommodations. And then, once that goes forward, then the university comes back.

But what I see a lot of, a lot more recent cases discussing that I think is good, and it's not just in higher ed, it's also in employment, is the expectation under this law that there's an interactive process, and so that it, you don't get to court right away. You should have an, student affairs professionals should be working with the students on an interactive basis to say, well, we can't do this, but we could do that, and would that work, and so on. And you may not be able to get to some reasonable agreement, and then it does go to some dispute resolution.

PB: And I want to shift focus a little bit and talk about direct threat, because in those cases that student affairs are looking at a case, and that has particularly come up with recent school shootings, epidemic of, you know, student suicides, they see a direct threat, whether to other students' health, or to that own individual student. How is that playing out? Is it being misused by universities as a means to not have to provide accommodations?

LR: I think the real difficulty for universities is with the threat to self. They have done, after Virginia Tech, there was a lot of discussion and more guidance about what the universities can do to intervene with a student who's threatening to others, and exhibits threatening behavior. They even have clarified when universities can contact parents and others to deal with this.

But where it gets more difficult, and where I see some universities that have maybe not handled it as well, is where you have a student who is suicidal. So it's not, that student is not threatening others, and the employment regulations say, threat to self can make a, somebody not otherwise qualified. But when it comes to students, the regulations that apply to colleges and universities are silent about what is threat to self. They don't say that it is. They don't say that it isn't.

But the government's position kind of through a letter, without, I think, any regulations, specifically, has said, if you are only acting on the basis of threat to self, that would be discrimination. Now there isn't case law yet that, there have been some settlements, but there isn't case law that really says whether that is correct or not. So university council and university officials are left with the dilemma of, what do I do with a student who's engaged in suicidal attempts or other self-harm? It may not reach, it may be food issues. It may be anorexia, or bulimia, or some other kind of alcohol abuse, or something. And how, what can they do about that without violating the ADA?

And my take on this is, as long as they're really acting on the basis of conduct, and they're not treating that student differently just because they think they are, have a mental health problem, but hey would treat any student who engages in certain behavior the same, they can act, excuse me, appropriately. But what I see some schools have gotten a little bit of trouble in is where they simply find out the student has some mental health problems that they think that are going to self-harm, and they just throw the student out without kind of any due process, without any discussion.

That's rare, but I think that's what universities today would well to avoid. And there's lots of guidance now. The Jed Organization has information on, you know, how to deal with students in distress, so there's a lot more guidance that they can use.

 

PB: I recently saw a CNN report that seemed to be a positive in this regard, that there's an increasing number of students that are reporting severe stress. That's not the positive. That positive is that the suicide rates seem to remain relatively level. Is that, you know, a success in service delivery, and, you know, a certain sophistication that is starting to happen on universities in terms of managing and helping students with mental health issues?

LR: I don't, it's a really interesting observation in that report. I don't know that I would read that as saying that the schools have gotten better in the service delivery. I, the recent Chronicle of Higher Education, a large piece about mental health issues on campus highlights the fact that universities are woefully under-resourced and under-funded in providing the mental health counseling and services that students need. They do seem to be doing better, much better, I think, in the crisis kind of situations. And that's why I would say, it makes sense to me that there is less suicide because, if you get to that level, they've got crisis management programs and so on.

But that doesn't change the high level of stress and anxiety that the statistics just indicate are really pretty, pretty significant. And some of that is underlying societal issues of the economy and job prospects and so on. So it's interesting, but I would not say that I, I think you could say that universities have succeeded in service delivery. They're certainly aware of it. I think they're certainly improving, but I would say, without more resources, they're going to be very limited in what they can do.

PB: In terms of stress, you've written 15 books numerous chapters in books. You, one of your recent articles, you touch on PTSD, and particularly in terms of returning vets.

LR: Right. Well, we know there's a large number of veterans that are returning from the Middle East, and they are older, on average, than students, so they come in with sort of different expectations, different experiences, and there is very high incidence of PTSD, traumatic brain injuries, and so on. So here are these students, and I think there is an awareness, and I think there's an increasing effort to figure out how to address those issues in the context of veterans because their PTSD and their stressors come from different kinds of experiences.

Here is something that I would encourage universities to think about when they're dealing with a veteran who comes in and says, I have PTSD, which there's some skepticism that exists. I don't think it's as much as it used to be. But where's your documentation? Well, the military isn't real quick to provide documentation and services and so on. And so my philosophy, or my approach, if I were dealing with this is, if there seems to be a reasonable basis that this individual is claiming that, and what they're asking for as an accommodation is not, you know, it may be some extra time, or you can take an, your exams in a quiet room or something like that, I would, at least temporarily, say, well, for this semester, we're going to provide that without the documentation.

And then next semester, if you re-request that, and you still don't have the documentation, we'll consider extending that, because that, to me, is a reasonable way to balance what is legal to require in terms of documentation, but also the reality of these individuals who've served our country, and have been affected by it substantially, and to provide them a way of getting reasonable accommodations. So that is an issue that I think we're going to see more and more awareness of, and attempt to deal with.

PB: Even though this is a legal issue, so much of what it comes back to, it seems, is just school administrators, you know, being able to, like you say, be reasonable, and just be humane about what the requests are. That seems like that's, can be a very difficult balancing act, though.

 

LR: It is, and I think the best way to start is having good attitudes and having good information and being positive about this. Now I, because I've dealt with students as an associate dean, and also, I have students in my class, and I want to be, you know, very helpful and so on, but there is this balance about at what point are you unfairly advantaging that student? What, are you unduly leading them to think they're going to get these accommodations forever?

So trying to balance all of that can be challenging. But if you go into it with a positive attitude that these are individuals who have needs, and you want to, you approach it sort of as a social worker, holistically, about, I want to help. What's the, you're having stress, test anxiety. Well that might not be a disability, but what's going on there? What can we do that might help you with that that's not necessarily an accommodation, and look at it more in a holistic way? And that's the approach I tried to take when I was doing this, and what I recommend when I give talks at national conferences to different groups.

PB: You raise an interesting point, or you brought up the word social worker, and I think that that's really interesting in terms of what the job description, how the ADA, and considering accommodations has affected jobs of school administrators.

LR: I do. I think if we work in silos, if we just think, well, this person doesn't fit into this compartment, so we don't have to do anything, I think that's where institutions get into trouble. If they look at it where it may be, well, we aren't going to be required to, this person has anxiety in the classroom. We're not required by law to do anything because they don't have a disability, but what are some things that we could, could we refer them to someone who could give them some tips on how to deal with anxiety in a stressing situation?

And I just, I think attitude and wanting to be helpful to a student in a broader sense is really the approach. I guess it is a social work mentality. It's not, I'm not going to help you unless you legally are entitled to. I wouldn't take it that far, but I, and I, but you also have to look at your limitations of resources and so on.

PB: Laura, just a couple more questions. I wanted to go back. You, early in our discussion, you touched on the challenges with increased technology. You know, on sort of on a gut level, I would think that more technology would be a device for making schools more accessible, but actually, there seems to be a rising, it seems to be raising a number of issues, still an undeveloped area of case law. Can you discuss what you've been seeing and trends that you've been seeing, with the increase in technology in higher education and education's reliance on technology?

LR: Sure. Technology is both the friend and the enemy of people with disabilities. And an extent, to an extent, it depends on what the disability is. So let's take, for example, if you live in a place where it snows, and you have ice days, or you have something like that, and people, including the instructor, cannot get to school, we now have technology that enables you to Skype classes, and do it through all kinds of mechanisms to, where you don't have to physically be present in the classroom all the time, or even any of the time sometimes.

But, and if you have a student who has mobility impairment, that can be, you know, leave aside the weather issues, that can be, it can make shopping at home, not having to go to the library, all kinds of things have been great because of websites and information you can get through the Internet. The challenge, there are a couple of disabilities where this is particularly challenging, however.

The big one is visual impairment. Unless, and there are adaptations on computers that allow a person to read, but it requires coding. It requires things to be put into a certain format. That can be labor intensive if it's not planned for. And textbooks are not, in fact, I don't know, very many of them are, initially, formatted so that a person with a visual impairment would easily be able to read it without some coding being done. So that is a huge issue. So that's just like things like textbooks.

If that person, we have professors who, all the time, send out to their students, so this is an interesting article I read, and I'll link to a Web, or, you know, to some sort of Internet site. Well, if that site, if that article is not accessible, a student with a visual impairment in that class would not be able to read it. So most professors aren't in the habit of checking that, and if you have a small class, and you know that no one has a visual disability, then that's not a problem.

But if you have a Sociology 101 to a class of 500, and you have no idea, and you send out, okay, here are 20 things that I saw in New York Times yesterday. I encourage you to read them. And you don't know whether they're accessible or not. That's a problem. So that's one kind of issue.

School websites are really getting more attention. There's some signals that we're going to get more specific design standards for them. What I think is pretty clear in terms of the trend is that websites themselves are subject to the ADA. There's been a little litigation about that. I think that the requirement that they be accessible is pretty much, in my view, not something that is subject to much dispute. But what that means is much more challenging, because it means every single thing that you link to on any unit, or law school, or university website has to be accessible, and I think that's much more challenging.

I would argue that things like if you have standards and rules and course curriculum and things that are fundamental, those should be in an accessible format. But what if you have archived material that is from, okay, here is the concert of one of our famous alums from, that we recorded in 1955, and you link to that? Does that have to be put into an accessible format?

And what the danger of saying yes is to that, is that those universities have a lot of archived material that's retrievable on the Web, might just decide, we're not going to make it available. So I think those are make, hard issues. I don't think those are, that particular issue is going to be at the forefront, but if you go on a university website, and there's a, come and see our college tour, and there's a video tour, and an audio tour, and you haven't put in descriptors, or the audio and video adaptations, then that's a problem. And so I think that's gotten a lot more attention.

Other kinds of things are, I think that textbooks, and the accessibility of textbooks, is an issue where I think five years from now, probably all publishers will make sure their textbooks are accessible at the front end, and here is why I think that's going to be the case. As there's more and more demand that universities, student affairs professionals get these textbooks on an accessible format, and there's a lot of delay in doing that, some universities may start taking the position that a professor cannot require a textbook that's not in an accessible format.

Now I can imagine the counter-reaction that academic freedom and so on, but in some colleges, the institution does select the textbooks that are used for different courses by adjuncts and so on. So I think the market force will drive that, and my prediction is that it'll take about five years before you start seeing the publishers respond.

PB: I would think that one of the fun parts about practicing and following disability laws that it is clearly not a, ADA is not a one-size-fits-all, but really requires customization by student administrators, and also sort of a flexibility and an ability to go with the flow of all these changes in terms of technology. Can you talk a little bit about how there's different issues that affect different types of higher education in different ways?

LR: Sure. And this is one where, I mean, actually, one of the things I love about disability law is because it requires being creative, and thinking through, and you don't have, you know, early on, when I was doing this, people said, can't you just have a checklist of what you're supposed to do? And it's like, no, because you've got this whole array of situations, whole array of kinds of disabilities in a range of contexts. And you can just sort of have some guideposts about what you do, but there's no magic form. But, with that said, I think community colleges have some interests that are a bit different than four-year colleges and other, and graduate programs.

It started because they have fewer resources. They often are less well budgeted, and so they don't have big offices that they can refer a lot of people to or provide services. The other thing that they have is they tend to have more students who are sort of open admissions where they walk in the door on day one. If they've paid their tuition, and they have their high school diploma, they can enroll. And now you've got the requirement to respond very quickly to getting interpreters, textbooks on tape, or textbooks in different formats, and so on. So I think community colleges have unique stressors, or I'm not, I don't mean stressors, but unique expectations.

Four-year colleges have their issues of they have campus housing. They've got residence hall issues and what you have to do in terms of accessibility there. The emotional-support animal issues tend to come up in those settings, and we didn't even talk about that, the animal issues on campus, which are getting a lot of attention, and creating challenges in universities as well.

But four-year colleges have sports events, so they have stadiums. They need to attend to architectural barriers. They have fraternities and sororities, and I've done some talks about the application of the ADA to fraternities and sororities, which initially, people say, well, they're private clubs. They're not subject to the ADA. And that's not necessarily true, so that's a unique thing about a four-year college. And so they have a special kind of special kind of on-campus life experiences that are different.

Then you get the health professional programs, and actually, the graduate programs in general are professional programs, but medical school, dental school, chiropractic school, nursing school, they have to, their education usually includes, almost always includes a clinical aspect to it, where these individuals aren't just learning the academics of biology and so on. They're having to work with patients, and being able to respond quickly and safely, and hearing and seeing may be critical to patient safety. And so they have unique programs trying to balance that.

And courts have been very deferential to higher education, generally, in all settings. They're particularly deferential to healthcare programs because of patient safety, but that doesn't mean, and I talked about the Wynne case already, that they can just say, well, we're not going to do that because it's not safe. They're going to have to have some people who give some thoughtful analysis about why they're not going to do that, or why they can't provide that accommodation.

PB: Laura, it's been fantastic talking to you. I just have, ask for one wrap-up. And now I know that you just said you can't have a checklist for these accommodations. That said, with that in mind, is there any general guidance you could provide all the universities or school administrators to help them avoid costly or lengthy disputes?

LR: Sure. I'd say a couple of tips, not tips, but common-sense things that I pick up from what the courts are saying, and what many, many universities are engaged in very, very good practices, and they can be models for other universities. But the first is to make individualized decisions, and treat the student as an individual.

Now there is some question now about can you make some exceptions for, in healthcare programs? There've been a couple recent cases that aren't clear whether they're going to be applied in other jurisdictions, where an individual who is deaf wants to go to medical school, or an individual who is blind wants to go to chiropractic school. And are the courts going to require that, rather than making individualized decisions? And that is not clear.

The other thing that I would encourage is engaging in, and the courts say this too. It's not just me. Engage in an interactive process. And I see more and more court decisions talking about, well, a school didn't even really try to, you know, work this set through. They just said, no, we're not going to do it.

And the other thing is a proactive approach. In my days as associate dean for students, when we would have, I was also, had oversight over admissions, and when we did not ask about disability, you can't ask about that in the admissions process, generally, but once we sent the letter of admission, we would say, if you have disabilities that need accommodations, please let us know as soon as possible. Start, because a student who needs a sign language interpreter, that can take some time to arrange, and so on, so not waiting until they walk in the door.

The student who might want to have, who might require extra time on exams, give them notice early on. How do you apply for that? When do you have to apply for that? How much notice is required so that you have enough time built in if there's going to be a disagreement. And have policies, practices, and procedures in place.

I've seen a number of OCR opinions where the Department of Education comes in and investigates a complaint that the student says, I was discriminated against. And I've seen many of them where they say, well, we came in and saw that, no, you weren't discriminated against, where they acted reasonably. But while we were there, we found out, there's no policy in place that's known to students. They don't have any idea how to request accommodations. And so schools get in trouble for that.

I think it's less true today than it was, but that would be something that I would encourage universities to do. And also, provide appropriate training information to staff and faculty, general information. How do they spot stress, or students with mental health problems? How do they refer students to get accommodations and so on?

And I can't emphasize enough, I'm a person who really doesn't like wasting resources. And if an unnecessary dispute, and I wouldn't say all disputes are unnecessary. Sometimes they're legitimate disputes that just need court resolution. But I've seen a recent case that involved ten years of litigation about an accessible restroom that should have been in place on, in a student center on a campus.

And the court ordered the university to pay thousands and thousands of dollars of, not damages, in addition to damages, attorney's fees to the plaintiff lawyer because the university did not handle that dispute. That's, those are dollars that could go into scholarships or much more productive things, and also not damage the goodwill of the university. So unnecessary disputes don't have to happen, and I think some of these things like, you know, having good training and so on, could go a long way to head that off.

PB: Laura, I think that's a great point to wrap up on. Thank you so much for taking the time. It's been really informative and insightful to what colleges are dealing with, and how they're managing.

LR: Thank you. It's been my pleasure.

Subscribe to Campus Law Considered

Posted in Student Rights

Subscribe to Campus Law Considered Blog