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

STUDENTSSTUDENTS

Presented by:

Teri B. Goldman

Blackwell Sanders Peper Martin, LLP

St. Louis, Missouri

DEFINITION OF DISABILITY:

“a physical or mental impairment which substantially limits one or more … major life activities.”

A student by the name of Robert Johnson has been admitted to your college or university. Upon entry, he informs you that he has been medically diagnosed with ADHD and takes Ritalin to control the symptoms of the disorder. He graduated from high school with a 2.9 GPA. He now seeks reasonable accommodations from your institution for his “disability.”

What procedures, if any, do you follow to determine if he is disabled?

How do you determine what reasonable accommodations he should receive?

1999 SUPREME COURT TRILOGY OF CASES

Sutton v. United Airlines, Inc., 119 S. Ct. 2139 (1999)

Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999)

Albertson’s, Inc. v. Kirkingburg, 119 S.Ct. 2169 (1999)

Mitigating measures must be considered in making the determination as to whether an individual is disabled.

Not limited to external mitigating measures.

Vision impairment -- Glasses Hearing impairment -- Hearing Aide High Blood pressure -- Medication Diabetes -- Diet ADHD - Medication Test Anxiety - Adapted Study Regimen

Pacella v. Tufts Univ. School of Dental Medicine, 66 F. Supp. 2d 234 (D. Mass. 1999)

• Alleged discrimination on the basis of a visual disability after dismissal for failing to perform at acceptable academic level.

• Not disabled because of mitigating measures.

Disabled v. Otherwise Qualified

Otherwise qualified person is “one who is able to meet all of a program’s requirements in spite of his handicap.”

A student with bipolar disorder enrolls in your college or university. The disorder generally is well controlled with medication and, in her medicated state, the student is able to succeed academically and otherwise. However, when the student ceases medication, she becomes depressed, disorganized and very disruptive in her classes and her grades drop such that she must be placed on academic probation.

IS SHE DISABLED?

IS SHE “OTHERWISE QUALIFIED”?

WHAT REASONABLE ACCOMMODATIONS WOULD/SHOULD/COULD YOUR INSTITUTION PROVIDE?

MAY YOU IMPOSE DISCIPLINARY CONSEQUENCES PURSUANT TO YOUR INSTITUTION’S INTERNAL RULES, INCLUDING REMOVAL FROM THE INSTITUTION?

Bercovitch v. Baldwin School, 133 F.3d 141 (1st Cir. 1998)

• Student diagnosed with ADHD, ODD, and depression

• Indefinitely suspended by private school for behavior that repeatedly violated schools codes of discipline and proper behavior.

• Filed ADA suit alleging disability discrimination.

• Concluded that the alterations in the school’s normal requirements and standards requested by plaintiff went beyond reasonable accommodation

• Student was not “otherwise qualified” unless, with reasonable accommodations, he can meet disciplinary requirements.

• A school’s code of conduct is an integral aspect of the learning environment.

• Student was not disabled.

Ascani v. Hofstra University, No. 987756 (2nd Cir. 1999)

• Plaintiff alleged disability discrimination when expelled from University.

• Diagnosed with mental illness.• Threatened professor.• Held not “otherwise qualified” and was a “direct threat”

to the safety of others.

PRACTICAL TIPS• Have written policies and procedures for determining disability and reasonable accommodations.• Policies and procedures should be revised to include reasoning of 1999 Supreme Court trilogy regarding mitigation.• Have written policies/codes regarding academic and behavioral standards.• Have procedures to determine when a student identified as disabled is no longer “otherwise qualified” per the institution’s policies and codes.