medical students with disabilities

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Medical Students with Disabilities: A Generation of Practice

Medical Students with Disabilities: A Generation of Practice

A Report byJennifer E. WatsonShannon H. Hutchens

Edited byDaniel J. Wilkerson

© 2005 Association of American Medical Colleges. Permission is granted for any educational, non-commercial use of this material.

Available from:Association of American Medical CollegesOrder Fulfillment and Customer Service2450 N Street, N.W., Washington, D.C. 20037-1127T 202 828 0416 F 202 828 1123www.aamc.org/publicationsPrice: $10

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For more information about this publication contact:Robert Sabalis, Ph.D.Associate Vice PresidentDivision of Medical School AffairsAssociation of American Medical Colleges2450 N Street, N.W., Washington, D.C. 20037-1127T 202 828 0684E [email protected]

Medical Students with Disabilities:A Generation of Practice

Daniel J. Wilkerson

Daniel J. Wilkerson serves as DeputyUniversity Counsel to the University ofColorado. Mr. Wilkerson has been withthe University since 1989. Prior to joiningthe Office of University Counsel, Mr.Wilkerson served four years in the JudgeAdvocate General’s Corps of the UnitedStates Army.

Mr. Wilkerson holds an undergraduatedegree from Cornell University where hewas a Distinguished Military Graduate.Mr. Wilkerson received his law degreefrom Willamette University in Salem,Oregon where he was an Associate Editorof the Law Review, a member of theMoot Court Board, and an officer ofstudent government.

Shannon H. Hutchens

Shannon Hutchens is a Legal StaffAssociate with the Office of UniversityCounsel, University of Colorado atDenver and Health Sciences Center. Ms.Hutchens has been with the Universitysince 2003. Prior to joining the Office ofUniversity Counsel, she practiced healthlaw at Cook Children’s Health System inFort Worth, Texas.

Ms. Hutchens holds a B.A. from TexasA&M University, a J.D. from Texas TechUniversity where she was an articles edi-tor on Law Review. Following law school,she obtained a LL.M. in Health Law fromthe University of Houston. Ms. Hutchenshas written several articles for theAmerican Health Law Association(AHLA) on legal/compliance-relatedissues. She is admitted to the State Barsof Texas and Colorado.

Jennifer Watson

Jennifer Watson serves as a Legal StaffAssociate with the Office of UniversityCounsel, University of Colorado atDenver and Health Sciences Center. Ms.Watson has been with the Universitysince 2004.

Ms. Watson holds a Bachelor of Science inBusiness Administration from Saint LouisUniversity and a J.D., with distinction,from the University of Iowa College ofLaw where she was an associate editor onLaw Review and a member of the NationalMoot Court team. She is admitted to theColorado Bar and is a member of theDenver and Colorado Bar Associations.

1 Association of American Medical Colleges, 2005


PrefaceThe Rehabilitation Act of 1973 and itsSection 504 prohibited discriminationagainst individuals with disabilities. In1979, the AAMC published a report of itsSpecial Advisory Panel on TechnicalStandards for Medical School Admission toassist medical school faculty in determining precisely what requirements were essentialfor earning an M.D. degree from theirschool. Also in 1979, the United StatesSupreme Court decided the seminal caseof Southeastern Community College v.Davis, in which the issue of whether aninstitution was required to modify itsadmission standards for a student with aphysical disability was first addressed.

In 1990, Congress passed the Americanswith Disabilities Act that reinforced andextended the nondiscrimination conceptsof Section 504. In 1993, the AAMC published The Disabled Student in MedicalSchool: An Overview of Legal Requirements,which was designed to help medicalschools understand and comply with theADA. At that time, only a handful ofcourt decisions had been handed downto provide guidance on Section 504 in amedical school setting and virtually nocourt cases applying the ADA to medicalschools were available.

In the twelve years since the AAMC published The Disabled Student in MedicalSchool, numerous court cases applyingSection 504 and the ADA to medical andother health professional schools havebeen decided. In the discussion that follows, the authors rely on those cases,along with written opinions from theUnited States Department of EducationOffice for Civil Rights (OCR), to providean overview to medical schools on thestate of the law today. In some instances,pertinent holdings from ADA employmentcases are used to illustrate aspects of theADA when courts have not yet decided anissue in the educational context.

Disability law is dynamic, and the opinions of the various courts and agenciesreflect the continued evolution of thinkingin this area. Section 504 and the ADArequire fact-intensive, case-by-case analysis.As a result, some of the early OCR opinions cited by the authors might bedecided differently by the OCR or thecourts today. Also, as with many areas ofthe law, there is not complete agreementamong the courts on the interpretation ofcertain aspects of the ADA. While theguidance provided in this document isnot a substitute for case specific legaladvice, it should provide the reader with ageneral sense of how to work through thechallenging application of Section 504and the ADA in the context of a medicalschool setting.

The legal issues associated with studentswith disabilities do not end with the conclusion of the admission process.Medical schools need to adopt policiesand procedures that apply throughout thevarious stages of their educational continuum from admission and basic science courses through clinical rotationsand graduation. A collaborative,team-oriented approach to drafting andimplementing policies and procedureswill serve schools well.

I would like to thank our colleagues inthe Office of University Counsel for theUniversity of Colorado for their detailedresearch and thoughtful analysis in writing Medical Students withDisabilities: A Generation of Practice.

Jordan J. Cohen, M.D.President



I. The Applicable Law1

A. Section 504 of the Rehabilitation Actof 1973

The Rehabilitation Act of 1973 is widelyregarded as the first United States civilrights legislation protecting persons with disabilities. Section 504 of theRehabilitation Act (“Section 504”) contains a nondiscrimination provisionwhich provides that “[n]o otherwisequalified individual with a disability . . .shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefitsof, or be subjected to discriminationunder any program or activity receivingFederal financial assistance.”2 It is fromthe enactment of Section 504 and its corresponding regulations that the right to educational accommodationsfirst emerged in the post-secondaryschool arena.

Regulations adopted by the Departmentof Education to implement Section 504require post-secondary educational insti-tutions to provide academic adjustmentsor accommodations for qualified studentswith disabilities to ensure that an institution’s educational requirements“do not discriminate or have the effect ofdiscriminating” against a qualified student.3

Under the regulations, an institutionmust provide “methods for evaluatingthe achievement of students who have ahandicap that impairs sensory, manual,or speaking skills [to] ensure that theresults of the evaluation represents [sic]the student’s achievement in the course,rather than reflecting the student’simpaired sensory, manual, or speakingskills,”4 and provide auxiliary aids, suchas “taped texts, interpreters . . . readers . . .and other similar services” for studentswith impaired sensory, manual, or speakingskills.5 In addition, the regulations prohibiteducational providers from imposingother rules on qualified students, such asprohibiting tape recorders in classrooms

or guide dogs in buildings “that have theeffect of limiting participation of handi-capped students.”6

Section 504 applies to all programs oractivities that receive federal financialassistance.7 Most medical schools, bothpublic and private, receive some type offederal funding, and, therefore, arerequired to comply with Section 504 andits corresponding regulations.

B. Americans With Disabilities Act

The Americans with Disabilities Act(“ADA”) was enacted in 1990 to “provideclear, strong, consistent, [and] enforceablestandards [for] ending discriminationagainst individuals with disabilities”and to bring such individuals into theeconomic and social mainstream ofAmerican life.8 The ADA was intended tosupplement and expand the coverage ofSection 504 of the Rehabilitation Act, notto replace it. The ADA has five major sections or titles, three of which apply topost-secondary educational institutions.Title I prohibits discrimination inemployment, Title II prohibits discrimi-nation in public services, and Title IIIrequires public places to accommodatepersons with disabilities.

1. Title I

Title I of the ADA requires employerswith fifteen or more employees to providequalified individuals with disabilities anequal opportunity to benefit from thefull range of employment-related opportunities available to others. A“qualified individual” with a disability isdefined by the ADA as “an individualwith a disability who, with or withoutreasonable accommodation, can performthe essential functions of the employmentposition that such individual holds ordesires.”9 This definition of “qualifiedindividual” has been the subject ofnumerous litigated cases and will be

discussed further below. Title I specificallyprohibits discrimination in recruitment,hiring, promotion, training, pay, andsocial activities. In addition, Title Irestricts the questions that may be askedabout an applicant’s disability before ajob offer is made, and requires employersto make reasonable accommodations forknown physical or mental limitations ofotherwise qualified individuals with disabilities. An employer need not makean accommodation if doing so wouldimpose an undue hardship on theemployer or present a “direct threat tothe health or safety of” others.10

To the extent that medical students orresidents are also employees, medicalschools are required to comply with TitleI requirements with respect to those stu-dents/employees.


1In addition to the federal laws discussed in thisArticle, a number of state and local laws impact aninstitution’s obligations with respect to studentswith disabilities. In many cases, these state andlocal laws may impose requirements greater thanthose set forth by the Rehabilitation Act and theADA. These state and local laws are outside thescope of this document, but institutions are cau-tioned to remain cognizant that they may havecompliance obligations with respect to studentswith disabilities that exceed the laws discussed inthis document.

229 U.S.C. § 794 (a) (2002).334 C.F.R. § 104.44 (a) (2004).434 C.F.R. § 104.44 (c).534 C.F.R. § 104.44(d)(2).634 C.F.R. § 104.44(b).7See 29 U.S.C. § 794(a)(2002).842 U.S.C. § 12101 et seq.942 U.S.C. § 12132.

1042 U.S.C. § § 12111(8), 12112(b)(5), 12113(b); seealso infra notes 144 - 151 (discussing the exceptionto the ADA and Section 504’s requirement toaccommodate individuals with disabilities if theindividual poses a direct threat to the health orsafety of others).

2. Title II

Title II extends the provisions of Section504 to the activities of state and localgovernments, regardless of whether thegovernment entity receives federal funding.11 Educational institutions governed by state or local governmentsare among the entities which are requiredto comply with the requirements of TitleII.12 The language of Title II of the ADAclosely parallels the nondiscriminationprovisions of Section 504 of theRehabilitation Act by providing that “no qualified individual with a disabilityshall, by reason of such disability, beexcluded from participation in or bedenied the benefits of the services,programs, or activities of a public entity,or be subjected to discrimination by anysuch entity.”13

Title II regulations do not containexpress language concerning academicaccommodations. However, Title II’s regulations, drafted by the Departmentof Justice, require covered state and localgovernments to “make reasonable modifications in policies, practices, orprocedures” when necessary to avoid discrimination14 and provide “auxiliaryaids and services” to enable participationof disabled individuals.15 When viewed in light of Congress’ intent to expand theprovisions of Section 504 to governmentalactivities, Title II essentially requiresmedical schools to comply with Section504 Regulations. Courts uphold this legislative intent by regularly applyingcase law and regulations from a Section504 claim to a Title II ADA claim.16

Compliance with Title II requires a medical school to extend its programs topersons with disabilities, provided thatthe person meets the essential eligibilityrequirements after any necessary reason-able modification has been made to theprogram, rules, or physical surroundings.The services must be provided in themost integrated setting, and an entitymust be careful that its eligibility criteriado not otherwise screen out persons withdisabilities. An entity may impose safetystandards which exclude persons withdisabilities as long as the requirementsare based on actual risks, and not onstereotypes or speculation.

3. Title III

Title III provides that “[n]o individualshall be discriminated against on thebasis of disability in the full and equalenjoyment of the goods, services,facilities, privileges, advantages, oraccommodations of any place of publicaccommodation.”17 Title III prohibits private entities that are places of publicaccommodation from discriminatingagainst persons with disabilities. Theterm “public accommodation” expresslyincludes “elementary, secondary, under-graduate, or postgraduate privateschool[s] or other place[s] of public education.”18 Thus, medical schools, bothpublic and private, are subject to thenondiscriminatory requirements ofTitle III. In addition, Title III applies toprivate organizations that provide educational and professional “examinationsor courses related to application, licensing,certification, or credentialing.”19

To comply with Title III, a place of publicaccommodation must make reasonableaccommodations to its policies, practices,and procedures unless doing so would“fundamentally alter the nature of theservice being provided.”20 In addition,auxiliary aids and services must be provided unless doing so would funda-mentally alter the nature of the services

or result in an undue burden.21 A place ofpublic accommodation must removearchitectural, communication, and structural barriers in existing facilitieswhere removal is “readily achievable,”22

and provide services through alternatemethods if removal is not “readilyachievable.”23 Title III requires that services and programs be provided in anintegrated setting, unless separate or different measures are necessary to ensurean equal opportunity. Furthermore,Title III requires an entity to eliminateeligibility requirements or rules whichscreen out or tend to screen out thoseindividuals with disabilities.24



11See 42 U.S.C. § 12131.12See id.1342 U.S.C. § 12132.1428 C.F.R. § 35.108(7).15See 28 C.F.R. § 35.160(b)(1).

16See e.g., Zukle v. Regents of the Univ. of Cal., 166F.3d 1041, 1045- 46 & n.11 (9th Cir. 1999) (apply-ing case law and regulations from Section 504 to aclaim alleging failure to provide accommodationsunder Title II of the ADA and Section 504).

1742 U.S.C. § 12182(a).1842 U.S.C. § 12182(j).1942 U.S.C. §12189.

20See 42 U.S.C. §12182(2)(A)(ii). In the case of aneducational institution, the “service” is the academ-ic and or clinical program.

21See 42 U.S.C. §12182(2)(A)(iii); see infra notes168-237 and accompanying text (discussing reasonable accommodations).

22See 42 U.S.C. §12182(2)(A)(iv).23See 42 U.S.C. §12182(2)(A)(v).24See 42 U.S.C. §12182(2)(A)(i).


The nondiscrimination provisions ofTitle III do not explicitly address academicaccommodations, but its principal prohibition against discrimination closelyparallels the requirements of Section 504and Title II. Courts tend to analyze TitleIII claims in the same manner as Section504 claims.25 Despite variances in statutorylanguage, the obligation to provide academic accommodations and the scopeof such accommodations are viewed synonymously under Section 504 of theRehabilitation Act and Titles II and III ofthe ADA.26 Title II and III regulations statethat neither should “be construed toapply a lesser standard than the standardsapplied under” the Rehabilitation Act.27

The similarity between the two laws hasresulted in the courts analyzing Section504 and ADA issues similarly.28

The U.S. Department of Education Officeof Civil Rights (“OCR”) is responsible forenforcing Section 504 and its implementingregulations.29 The OCR is also responsiblefor enforcing Title II and its implementingregulations.30 The OCR’s opinions, whilenot binding on the courts, provide astrong indication of how the courtswould treat the issue.

Practice Tip: Most medical schoolsalready have in place institutional policiesand procedures addressing compliancewith Section 504 and the ADA. These policies should be reviewed on a regularbasis to ensure compliance with federalstatutes and regulations, and that advancesin adaptive and assistive technology areappropriately reflected. A bad policy or apolicy that is inconsistently (or never) followed may be worse than no policy atall. Medical schools should review theirpolicies, make sure that their policies arerealistic and “livable,” and then consistentlyadhere to those policies as situations arise.

II. Disability DefinedUnder the ADA and Section 504, thethreshold issue in determining whether astudent is protected is whether the studenthas a “disability” as that term is definedby the statutes. Both the ADA andSection 504 define disability as “(1) aphysical or mental impairment that substantially limits one or more majorlife activities of such individual; (2) arecord of such impairment; or (3) beingregarded as having such a condition.”31

ADA regulations further define the threekey phrases: “physical or mental impairment,” “major life activities,” and“substantially limiting.”32 A student’scondition must meet each of these factorsin order for the student to be considereddisabled for purposes of the ADA orSection 504. In other words, even thougha student has a condition that meets thedefinition of a physical or mentalimpairment, unless that condition alsosubstantially limits a major life activity,the student is not disabled for the purposes of the ADA or Section 504.

In Price v. National Board of MedicalExaminers,33 the court addressed theissue of whether medical students withlearning impairments met the ADA’s definition of disabled. The court heldthat an impairment substantially limits amajor life activity of an individual whena “person’s important life activities arerestricted as to conditions, manner, orduration under which they can be performed in comparison to most people in [the] general population.”34 Asdiscussed further below,35 the courtfound that the medical student plaintiffswere able to learn as well or better thanthe average person in the general population and therefore did not meetthe ADA’s definition of disabled.36

A. Physical or Mental Impairment

Physical or mental impairments include“[a]ny physiological disorder, or condition,cosmetic disfigurement, or anatomical lossaffecting one or more . . . body systems,” or“[a]ny mental or psychological disorder,such as mental retardation, organic brainsyndrome, emotional or mental illness,and specific learning disabilities.”37

Impairments typically do not includeenvironmental, cultural, or economiccharacteristics, such as lack of education,poverty, or an individual’s criminalrecord.38 In addition, pregnancy is notconsidered an impairment under theADA,39 but complications resulting frompregnancy may constitute an impairment.40


25See e.g., Guckenberger v. Boston University, 974 F.Supp. 106 (D. Mass.1997).

26See id. at 133.2728 C.F.R. § 36.103(a).

28See, e.g., Betts v. Rector of the Univ. of Va., 191 F.3d 447, 447 (4th Cir. 1999); Pacella v. Tufts Univ.Sch. of Dental Med., 66 F. Supp. 2d 234, 237-38 (D. Mass. 1999).

29Section 504 regulations are codified in 34 C.F.R.,Part 104.

30ADA Title II regulations are codified in 28 C.F.R.,Part 35.

3142 U.S.C. § 12102(2).

32See Sutton v. United Air Lines, Inc., 527 U.S.471(1999); 29 C.F.R. § 1630.2(h), (i), (j). TheDepartment of Justice regulations also address theinterpretation of the definition of disability in 28C.F.R. § 36.104(3)(iii).

33966 F. Supp 419 (S.D. W. Va. 1997)34Id. at 422.

35See infra notes 103 - 107 and accompanying text(discussing the Price case and what constitutes“substantially limiting”).

36Id.3729 C.F.R. § 1630.2(h)(1)-(2).38See Appx. to 29 C.F.R. § 1630.2(h).

39See Walker v. Fred Nesbit Distrib., 331 F. Supp. 2d780 (S.D. Iowa 2004); Gover v. Speedway SuperAmerica, 254 F. Supp. 2d 695 (S.D. Ohio 2002).

40Cerrato v. Durham, 941 F. Supp. 388 (S.D. N.Y.1996).

Courts recognize that in making thedetermination of whether an impairmentconstitutes a disability which substantiallylimits a major life activity, the determi-nation must be made on a case-by-casebasis and not be based on abstract listsor categories of impairments, “as thereare varying degrees of impairments aswell as varied individuals who sufferfrom the impairments.”41 The regulationsnote that a finding of disability “is notnecessarily based on the name or diagnosisof the impairment the person has, butrather on the effect of that impairmenton the life of the individual. Someimpairments may be disabling for particular individuals, but not for others,depending upon the stage of the diseaseor disorder, the presence of otherimpairments that combine to make theimpairment disabling or any number ofother factors.”42 Whether a substantiallimitation of a major life activity existsdepends upon an analysis of: 1) thenature and severity of the impairment,2) the duration of the impairment, and3) the permanent or long-term impact ofthe impairment.43

Practice Tip: Those involved in the decisionof whether an impairment constitutes adisability should be careful not to rely ongeneral assumptions or categories of whatthey consider disabling. Each student’s casemust be evaluated on an individual basis.

Practice Tip: The development of policiesand procedures concerning disability issuesshould involve all necessary parties. Thisshould include not only the institutionalADA or compliance officer or the admissions officer, but also faculty members,school administrators, and legal counsel.Unilateral policy decision making shouldbe avoided in favor of an interactive team-oriented approach.

1. Physical Impairments

Physical impairments range from mobilityimpairments (such as the need for awheelchair and other assistive aids) toimpairments of the senses (such as hearing and sight). Applicants and stu-dents with physical impairments maypresent more unique challenges to healthtraining programs than to other types ofprofessional schools. Medical school curricula are, by their very nature, visual,as students learn anatomy and diagnostictechniques. Curricula are also very physical in nature, as students are taughthands-on medical procedures and are,during the course of their training,providing direct patient care under facultysupervision.

Courts have recognized the uniquenessof health professions training programswith respect to the physical demandsthese programs place on students. Forexample, in Southeastern CommunityCollege v. Davis,44 the U.S. Supreme Court held that a hearing impairedapplicant to a nursing program was not“otherwise qualified” because the applicantcould not meet the physical qualificationsof the program.45 The applicant in Daviscould not understand speech withoutlip-reading, and the Court noted thatnurses needed to be able to understandwhat was being said, even if the speakeris wearing a mask, and that nurses alsoneeded to be able to hear even when notlooking directly at the speaker, such aswhen retrieving instruments in surgery.46

The case, Ohio Civil Rights Commission v. Case Western Reserve University,47 alsoaddressed whether an applicant withphysical impairments was disabled forpurposes of the ADA and Section 504.The case involved a visually impairedmedical school applicant who had grad-uated, with honors, from undergraduateschool having received assistance fromlab assistants/readers, oral examinationswith extended time, and a variety of

visual aids.48 The court noted that theAssociation of American Medical College’s1979 Report of the Special Advisory Panel onTechnical Standards for Medical SchoolAdmission recommends that medicalschool candidates have the ability toobserve.49 Responding to the applicant’scontention that another medical schoolhad admitted, and graduated, a totallyblind student, the court noted the sub-stantial modifications that were made tocoursework by faculty members and thatadditional time was spent by fellow stu-dents to assist this student.50 The courtheld that the school was not required toaccommodate the medical school applicantbecause the requested modifications“would (1) require fundamental alterationsto the academic requirements essential tothe program of instruction, and (2)impose an undue burden on [the school’s]faculty. Finally, once [the school] confirmed[the applicant’s] complete inability toobserve, [the school] could deny [the applicant] based upon a bona fide standardfor admission to the medical school.”51



41See Homeyer v. Stanley Tukhin Associates, Inc., 91F. 3d 959,962 (7th Cir. 1996); Deas v. River West,L.p., 152 F. 3d 471, 478 (5th Cir. 1998); Forrisi v.Bowen, 794 F. 2d 931, 933 (4th Cir. 1986); Byrne.Bd. or Education, 979 F. 2d 560, 565 (7th Cir.1992); Roth V. Lutheran General Hospital, 57 F. 3d1446, 1454 (7th Cir. 1995).

4229 C.F.R. App. Sec. 1630.2(j).43See 29 C.F.R. § 1630.2(j).

44See 442 U.S. 397 (1979). See also infra notes 136,143-45, 168-70, 186-87 and accompanying text.

45See id. at 406. “An otherwise qualified person isone who is able to meet all of a program’s requirements in spite of his handicap.” Id.

46See id. at 403.47666 N.E.2d 1376 (Ohio 1996).48See id. at 1379.

49See id. “Specifically, the AAMC Technical StandardsReport states, ‘[t]he candidate must be able toobserve demonstrations and experiments in thebasic sciences . . . . A candidate must be able toobserve a patient accurately at a distance and close athand. Observation necessitates the functional use ofthe sense of vision and somatic sensation.’” Id.(quoting AAMC Technical Standards, 1979).

50See id. at 1382.


2. Mental Impairments

Regulations promulgated by the EqualEmployment Opportunity Commission(“EEOC”)52 define mental impairment as“[a]ny mental or psychological disorder,such as mental retardation, organic brainsyndrome, emotional or mental illness,and specific learning disabilities.”53 Forpurposes of the ADA and Section 504,mental illnesses include bipolar disorder;major depression; anxiety disorders suchas panic disorder, obsessive-compulsivedisorder, and post-traumatic stress disorder; schizophrenia; and personalitydisorders.54 Personality traits such as irritability, poor judgment, or irresponsiblebehavior do not constitute mentalimpairments under the ADA.55

a. Depressive/ Emotional Disorders

Medical school classes certainly includestudents with varying degrees of clinicaldepression, bipolar disorder, or othermental illnesses. Mental health profes-sionals often rely on the Diagnostic andStatistical Manual of Mental Disorders ofthe American Psychiatric Association,Fourth Edition (DSM-IV), to aid in theirdiagnoses of mental impairments inindividuals. While the primary objectiveof the DSM-IV is to provide a uniformsystem for identifying and diagnosingmental conditions, the DSM-IV’s determination of what does and whatdoes not constitute a disability, whilerecognized as persuasive authority by thecourts, is not conclusive in determiningwhether an individual with a mentalimpairment qualifies for ADA protection.The DSM-IV contains a number ofdiagnoses that may be recognized asmental impairments, but that may notqualify as a mental disability entitled toprotection under the Rehabilitation Actand/or the ADA.56

The court addressed whether a medicalschool discriminated against a studentwith a mental disability in the case Amirv. St. Louis University.57 In that case, amedical student, following his dismissalon academic grounds, claimed that theUniversity had discriminated against himand engaged in retaliatory acts in violation of the ADA.58 Upon initialmatriculation, the student had exhibitedbizarre behavior that perplexed theschool’s faculty and administration. Inaddition, the student experienced academicdifficulties as early as his first round ofexaminations.59 The student and schoolagreed that he should take a leave ofabsence and then re-matriculate as afirst-year medical student the followingyear.60 The student continued to struggleacademically after his return to school,and, by his psychiatry rotation in histhird year, he had developed an obsessive-compulsive disorder which manifesteditself in an overwhelming fear that hisfood, drink, and medicine were contaminated by poison.61 The studentnotified his supervisor at the psychiatryclinic about his disorder, hoping for amore favorable review of his performancein the rotation.62 The supervisor toldother clinic physicians about the student’scondition, and one of the physiciansconvinced the student to voluntarilyadmit himself for inpatient treatment.63

When the student was discharged fromthe hospital, he sought re-admission tothe psychiatry rotation; his request wasdenied on the basis of his prolongedabsence.64 The student filed a grievanceagainst the clinic physician, and theUniversity permitted the student to returnto the rotation.65 After the grievance wasfiled, but before the student returned tothe rotation, the University’s psychiatrydepartment instituted a new gradingpolicy that resulted in the student’sreceiving a failing grade for the rota-tion.66 The failing grade prompted theUniversity to recommend the student’sdismissal, “based on a long-standing history of inappropriate behavior,

misrepresentations, and difficulties indealing with staff, and faculty . . . [andnoting that the student] received failinggrades in OB/GYN and Psychiatry andranked near the bottom of his class inoverall performance in Surgery.”67 Afterthe dismissal was formalized, the studentappealed, but was denied re-admission.68


51Id. at 1388.

52The EEOC is the federal agency responsible forenforcing the ADA and the Rehabilitation Act inthe employment sector. The case law and regula-tions from the employment sector are often appliedwhen the same or similar issues arise in the aca-demic setting.

5329 C.F.R. §1630.2(h)(2).

54SECTION 504 COMPLIANCE HANDBOOK,LAWS, REGULATIONS & ORDERS, App. III, 621(1997).

55See Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989).

56See infra notes 101 - 109 and accompanying text (an impairment must substantially limit a person’smajor life activity to be considered a disability forpurposes of the statutory anti-discrimination provisions).

57184 F. 3d 1017 (8th Cir. 1999).58See id. at 1024.59See id. at 1022.60See id.61See id. at 1023.62See id.63See id.64See id.65See id.66See id. at 1023-24.67Id. at 1024.68See id.

The court held that none of the student’srequests (completing his psychiatry rotation at another institution, receipt of a passing grade in psychiatry, or reassignment to a different supervisor)constituted a reasonable accommodationunder the ADA.69 In so holding, the courtnoted that to the extent that the Universitywas acting under its own academic policy, the court would not second-guessthe University’s policy in the absence ofevidence that the policy was a pretext fordiscrimination.70 The lesson from Amir isthat medical schools can follow theirown academic policies and, to the extentthat those policies are not a pretext fordiscrimination, courts are willing torespect the school’s province concerningacademic matters.71 The problematic factfor the University in Amir was that thedepartment had implemented a policythat directly affected the student after thestudent filed a grievance against thedepartment.

Practice Tip: Schools should be consciousof the timing of policy revisions and imple-mentation and be wary of implementingpolicies that single out or address a specificstudent after a student has raised a disability-related issue.

Although not limited to students withmental disabilities, one capability that issometimes compromised in individualswith mental disorders is the “ability toget along with others.” Many of theproblematic behaviors identified bymedical schools in their students fall intothis category. Whether the “ability tointeract or get along with others” is amajor life activity (the impairment ofwhich might be disability) is an openquestion. Based on the current case law,the answer appears to be “no,” given thenumber of courts that have examinedthe issue and declined to find that theinability to interact with others constitutesa substantial impairment of a major lifeactivity.72 Only the Ninth Circuit hasdecided that the “ability to interact with

others” “falls easily within the definitionof ‘major life activity’” by comparing itto “other essential regular functions, likewaking and breathing.”73 Even then, thecourt held that for a plaintiff to demon-strate a substantial impairment of theability to interact with others, he or she“must show that his [or her] ‘relationswith others were characterized on a regular basis by severe problems, forexample, consistently high levels ofhostility, social withdrawal, or failure tocommunicate when necessary.’”74 Even ifa student’s inability to interact with others rises to the level of a substantialimpairment of a major life activity, theschool may be able to assert that the student’s behavior constitutes a directthreat to self or others – and is thereforeunable to be accommodated.75 This maybe particularly true in more extreme casesof hostility and aggression where there isa legitimate concern for the safety ofother students, faculty, staff, and patients.

Practice Tip: Including “the ability towork as an effective member of the healthcare team” as an essential requirement of amedical school’s educational program inits Technical Standards for Admission andGraduation may aid an institution in dismissing students who consistentlydemonstrate the inability to get along withothers without discriminating against theseindividuals on the basis of their disability.

b. Learning Disabilities

The term “specific learning disability” iscategorized by both the ADA and Section504 as a covered mental or psychologicalimpairment;76 however, neither statutedefines the term “learning disability.”Several courts have borrowed theIndividuals with Disabilities EducationAct’s (“IDEA”) definition of “specificlearning disability” to determine whethera student has a learning disability for purposes of the ADA or Section 504.77

(IDEA requires states to provide childrenwith disabilities from age birth through

age twenty-one with free education andis not applicable to post-secondary institutions.) IDEA defines specificlearning disabilities as “disorder[s] inone or more of the basic psychologicalprocesses involved in understanding orin using language, spoken or written,which disorder may manifest itself inimperfect ability to listen, think, speak,read, write, spell, or do mathematical calculations.” Specific learning disabilitiesinclude perceptual disabilities, braininjury, minimal brain dysfunction, dyslexia,and developmental aphasia.78 Learningproblems that result primarily from “visual, hearing, or motor disabilities, . . .



69See id. at 1028.

70See id. at 1029. The court affirmed the University’sactions with respect to denying the student’srequests to complete the rotation at another institution and to be assigned to another supervisor.The court remanded the case for purposes of factfinding with respect to the departmental policy that was implemented before the student was re-admitted to the University, because the timing ofthe policy change raised the possibility that the policy was changed in retaliation for the student’sgrievance. See id.

71See infra notes 224-229 and accompanying text(discussing the court’s willingness to grant institu-tions academic deference in their decision making).

72See Davis v. Univ. of N. Carolina, 263 F.3d 95,101n.4 (4th Cir. 2001)(expressing “some doubt” as towhether ‘ability to get along with others’ is a majorlife activity); Amir v. St. Louis University, supranote 57 at 1027 (noting that “it is questionable”whether ‘ability to get along with others’ is a majorlife activity).

73McAlindin v. County of San Diego, 192 F.3d 1226,1234 (9th Cir. 1999). See also Steele v. ThiokolCorp., 241 F. 3d 1248, 1255 (10th Cir. 2001)(applying McAlindin analysis and assuming, with-out deciding, that “ability to get along with others”is a major life activity).

74Id. at 1235 (quoting EEOC Enforcement Guidanceon the Americans with Disabilities Act andPsychiatric Disabilities (March 25, 1997) at 5).

75See infra notes—144–151 and accompanying text.76See 29 C.F.R. § 1630.2(h)(2) (2004).

77See Argen v. New York State Bar Examiners,860 F. Supp. 84 (W.D.N.Y. 1994); Dubois v.Alderson-Broaddus College, 950 F. Supp 754, 758(N.D. W. Va 1997).

78Individuals with Disabilities Education ActAmendments of 1997 § 602(26), 20 U.S.C. §1401(26)(A) & (B) (Supp. IV 1998).


mental retardation, . . . emotional disturbance, or . . . environmental,cultural, or economic disadvantage areexpressly excluded from this definition.”79

The primary inquiry with learning-impaired students is often not whetherthe student is impaired, but whether theimpairment is severe enough to substan-tially limit learning or some other majorlife activity. In Wong v. Regents of theUniversity of California,80 the courtaddressed the issue of whether a medicalstudent’s learning impairment was severeenough for the student to qualify as disabled under the ADA and Section 504.The student in Wong completed his firsttwo years of medical school and passedthe National Board of Medical Examiners’examination without requesting orreceiving any accommodations.81 Thestudent began experiencing difficultiesduring his first clinical rotation andshortly thereafter was diagnosed with alearning impairment. As an accommoda-tion for his learning impairment, thestudent requested extra time to studyand prepare prior to the commencementof his clerkships.82 After the student wasdenied extra time to prepare for hisclerkship, he received a failing grade andwas dismissed from the medical school.83

The court held the student’s impairmentdid not substantially limit his ability tolearn.84 The court stated, “[t]he relevantquestion for determining whether [a student] is disabled under the Acts isnot whether. . . his learning impairmentmakes it impossible to keep up with therigorous medical school curriculum. It iswhether his impairment substantiallylimits his ability to learn as a whole.”85

2. Substance Abuse/Addiction

Neither the ADA nor Section 504’s definition of “individual with a disability”includes individuals who are currentlyengaged in the illegal use of drugs.Illegal use of drugs is defined as the useof one or more drugs, the possession or distribution of which is unlawful.86

Illegal use of drugs does not include theuse of a drug taken under the supervisionof a licensed health care professional.However, the illegal use of prescribedsubstances is considered to be an illegaluse of drugs.

Neither the ADA nor Section 504 defineswhat constitutes “current” illegal use ofdrugs, but courts have interpreted theterm to encompass a period of timemuch broader than the exact moment adrug user faces adverse action. In general,drug use is considered current if itoccurred recently enough to justify a reasonable belief that a person’s drug useis current or that continuing use is a real and ongoing problem.87

The ADA and Section 504 distinguishbetween the use of an illegal substanceand the status of being addicted to thatsubstance. Addiction may be considereda disability and addicts may qualify forprotection under the ADA and Section504, as long as they are in recovery andnot current users of illegal substances. InFederov v. Board of Regents for theUniversity of Georgia,88 the courtaddressed whether a student engaged inthe illegal use of drugs was disabled.The student was dismissed from theUniversity’s dental program after theUniversity’s judicial court found the student guilty of possessing and usingseveral controlled substances.89 The student claimed his drug use was animpairment under the ADA and Section504 of the Rehabilitation Act.90 The courtfound the student’s drug use did notsubstantially limit a major life activity. Infact, the student had performed quite

well in dental school and was able toperform a variety of functions.91 Thecourt further found the student was acurrent drug user at the time of his dismissal and was therefore not a qualifiedindividual to state a Rehabilitation Actclaim. Although the student had enrolledin a drug rehabilitation program, he haddone so only after school officials confronted him and he was faced withpossible dismissal from the program.92

Therefore, the student’s drug use wasconsidered current at the time of his dismissal.


79Id. § 1401(26)(C).80379 F. 3d 1097 (9th Cir. 2004).81Id. at 1100.82Id.83Id.84Id. at 1108.

85Id. at 1108-09. See also infra notes 101 - 109 andaccompanying text (discussing whether an impairment is substantially limiting). AMassachusetts District Court recently addressed theissue of whether a medical student’s learningimpairment constituted a disability in the case Baerv. National Board of Medical Examiners, 2005 WL1027289(D. Mass.). In this case a medical studentwith a learning disability sought additional time onthe United States Medical Licensing Exam. Thecourt reinforced the principle that in order for alearning impairment to be considered a disability,the student must demonstrate that the impairmentsubstantially limits learning generally. Id. at *5.In this case, the student acknowledged that herimpairment was not substantially limiting whenshe was not under time pressure; however herimpairment did limit her in the activity of takingtimed examinations. The court held that this typeof limitation is not enough to merit protectionunder the ADA. Id. at *4.

86See Controlled Substance Act, 21 USCA § 812.

8728 C.F.R. § 35.104, 36.104.88194 F. Supp. 2d 1378 (S.D. Ga. 2002).89See id. at 1383.

90The court found the individual defendant namedin the lawsuit enjoyed Eleventh AmendmentImmunity from claims under the ADA; therefore,the court only addressed the plaintiff ’s Section 504claim. See id. at 1386.

91See id. at 1388.92See id. at 1389.

Practice Tip: Although the current illegaluse of drugs is not considered a disability,current addiction to alcohol may be considered a disability. Certainly an institution may prohibit the use of alcoholon its property and require that studentsnot be under the influence of alcohol whilepresent at the institution. Thus, even if astudent addicted to alcohol were consideredto be disabled, a medical school couldproperly dismiss the student for violatinglegitimate school policies prohibiting theuse of alcohol.

B. Major Life Activity

In addition to a having a physical or mental impairment, the impairment mustaffect a major life activity in order for thestudent to be considered disabled. Majorlife activities include “caring for oneself,performing manual tasks, walking, seeing,hearing, speaking, breathing, learning, andworking.”93 The Supreme Court has heldthat this list of activities is “illustrative, notexhaustive.”94 Reproduction and sleepingare examples of activities that have beenadded to the list of major life activities.95

Conversely, courts have held that otheractivities, such as attending medicalschool96 and concentration,97 are notmajor life activities.

In Betts v. Rector and Visitors of theUniversity of Virginia,98 the courtaddressed whether a student with alearning disability was disabled underthe ADA and Section 504. The studentwas denied admission to the University’smedical school because he failed to meetthe GPA requirements required foradmission. The student claimed theUniversity discriminated against him inviolation of the ADA and Section 504 onthe basis of his learning disability. Thecourt held that although learning is amajor life activity, attending medicalschool is not.99 The court concluded thatthe “inability to pursue one career, suchas [medicine] does not constitute asevere impact on an individual’s life.”100

Thus, whether the student’s disabilitylimits his ability to attend medical schoolis irrelevant; the student must show thathis learning disability substantially limitshis ability to learn.

C. Substantially Limits

Section 504 and the ADA’s definition ofdisability requires the student’s major life activity to be substantially limited.The regulations define “substantially limiting” as:

(i) Unable to perform a major life activitythat the average person in the generalpopulation can perform; or

(ii) Significantly restricted as to the condition, manner, or duration underwhich an individual can perform amajor life activity as compared to thecondition, manner, or duration underwhich the average person in the general population can perform thatsame major life activity.

With respect to the major life activityof working, the term “substantiallylimits” means significantly restrictedin the ability to perform either aclass of jobs or a broad range of jobsin various classes as compared to theaverage person having comparabletraining, skills and abilities. Theinability to perform a single, particularjob does not constitute a substantiallimitation in the major life activityof working.101

In the employment context, a courtdetermines whether an impairment issubstantially limiting by determiningwhether the impairment constitutes asignificant barrier to employment.102 Thecourt examines whether an impairmentis substantially limiting on a case-by-casebasis and generally interprets the termquite narrowly. The court will not findan impairment substantially limitingsimply because the individual is disquali-fied in his/her chosen field; rather, the

individual’s overall employability mustbe substantially limited. The majority ofcases concerning whether an impairmentis substantially limiting arise in theemployment setting, which has led thecourts to analyze educational cases in asimilar manner.

In Price v. National Board of MedicalExaminers,103 the court relied on guidancefrom employment cases and applied theaverage person in the general populationanalysis to conclude that three medicalstudents who were denied additionaltime and separate rooms for administra-tion of the United States MedicalLicensing Examination were not disabledfor purposes of the ADA. The studentswere all diagnosed with Attention DeficitHyperactivity Disorder, and two of thestudents were also diagnosed with specificlearning disabilities. The court did notdeny that the students were impaired;however, the court held that because thestudents were able to learn as well or betterthan the average person, the studentswere not substantially limited in themajor life activity of learning.104 In reachingits conclusion, the court utilized the following example involving two hypo-thetical students:



9328 C.F.R § 1630.2(i).94Bragdon v. Abbott, 524 U.S. 624, 639 (1998).

95Id. See also Pack v. Kmart Corp., 166 F.3d 1300,1306 (10th Cir. 1999) holding that sleeping is amajor life activity.

96See Betts v. Rector of the Univ. of Va., 113 F. Supp.2d 970 (4th Cir. 2000).

97See, e.g., Pack, 166 F.3d at 1305.98113 F. Supp. 2d (4th Cir. 2000).99Id.. at 976.100Id.10129 C.F.R. § 1630.2(j)(1)(i)-(ii).

102U.S. v. Southern Management Company, 955 F. 2d914, 918 (4th Cir. 1992).

103966 F.Supp. 419 (S.D.W.Va.,1997).104Id. at 427.


Student A has average intellectualcapability and an impairment(dyslexia) that limits his ability tolearn so that he can only learn aswell as ten percent of the population.His ability to learn is substantiallyimpaired because it is limited incomparison to most people.Therefore, Student A has a disabilityfor purposes of the ADA. By contrast,Student B has superior intellectualcapability, but her impairment(dyslexia) limits her ability so thatshe can learn as well as the averageperson. Her dyslexia qualifies as animpairment. However, Student B’simpairment does not substantiallylimit the major life function oflearning, because it does not restricther ability to learn as compared withmost people. Therefore, Student B isnot a person with a disability forpurposes of the ADA.105

The court in Price found the students tobe similar to Student B in the aboveillustration. One student graduated fromhigh school with a 3.4 grade point average,and from college with a 2.9 grade pointaverage without having received anyaccommodations. The student didreceive accommodations on the MedicalCollege Admission Test (MCAT) and wassubsequently admitted to medical school.The second student was a national honorstudent in high school, graduated fromVirginia Military Institute with averagegrades, and maintained a 3.4 grade pointaverage in courses required for admissionto medical school. The student had notpreviously received any accommodations.The third student participated in a program for gifted students from elementary school through high school,graduated from high school with a 4.2grade point average, was admitted intothe United States Naval Academy,graduated from Vanderbilt University,and was admitted to medical school, allwithout accommodations.106 The courtultimately concluded that although each

student did have some learning difficulty,their overall history of significantscholastic achievement and the completelack of evidence suggesting that theycould not learn as well as the averageperson resulted in their not being entitledto accommodations under the ADA.107

A similar conclusion was reached inGonzales v. National Board of MedicalExaminers.108 In that case, Gonzales, asecond year medical student, soughtextra time on the United States MedicalLicensing Examination because of alearning disability. A series of cognitivetests, focusing on verbal ability, verbalexpression, verbal comprehension,phonological processing, visual auditorylearning, inductive reading, readingcomprehension, and memory, indicatedGonzales’ scores were below averagewhen compared with those of fourth-year college students; however, whencompared to the general public, hisscores were in the average to superiorrange.109 The court held that the term“substantially limits” is to be interpretedas significantly restricting a major lifeactivity in relation to the average personwithin the population.110

Practice Tip: Merely having an impairmentdoes not result in a student being disabledfor purposes of the ADA or Section 504.Students with learning impairments mustbe substantially limited in their learningwhen compared with the general population.A learning impaired student is not considered disabled solely because he orshe is substantially limited in the attemptto earn the medical doctor degree.

D. Mitigating Measures

Prior to 1999, courts followed the EqualEmployment Opportunity Commission’s(EEOC) guidelines under which the exis-tence of an impairment was consideredwithout regard to mitigating measuressuch as medicines or prosthetic devices.Thus, an individual with epilepsy wasconsidered to have an impairment even

if the symptoms were completely controlled by medicine. However, courtopinions regarding the issue of mitigating measures have changed. Courts currentlydetermine whether an individual’simpairment substantially limits a majorlife activity by considering the mitigatingmeasures he or she employs.111 Animpairment which can be controlled ormitigated is no longer considered animpairment for purposes of the ADA orSection 504. The change in the treatmentof mitigating measures came about inthe landmark case of Sutton v. United Air Lines.112 The Sutton case involvedtwin sisters with severe myopia who contended that the airline’s refusal tohire them as commercial pilots violatedthe ADA. The twins’ vision without corrective measures was 20/200.However, with corrective lenses, theirvision was 20/20. The airlines requireduncorrected vision of at least 20/100.The Supreme Court found that myopiaqualified as an impairment under theADA, and that the impairment affectedthe major life activity of seeing.However, the Court determined that thetwins were not substantially limited bytheir myopia, because corrective lensesmitigated the effects of the impairment.Consequently, the twins were not disabled for purposes of the ADA.


105Id. at 427.106Id. at 422-23.107Id. at 427.108225 F. 3d 620 (6th Cir. 2000).109Id. at 628.110Id. at 631-32.

111See Murphy v. United Parcel Serv., Inc., 119 S. Ct.2133 (1999); Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999); Albertsons, Inc. v. Kirkinburg, 119S. Ct. 2162 (1999).

112527 U.S. 471 (1999).

The Court in Sutton interpreted the term“substantially limits” as meaning currentlylimiting, rather than potentially or hypothetically limiting.113 As a result ofthe Court’s decision, impairments thatcan be controlled or corrected may notamount to a substantial limitation of amajor life activity. This is especially significant in cases where impairmentscan be well controlled with medication,such as certain cases of epilepsy.Moreover, in the educational context,many students compensate for theirlearning deficits by working harder or byimproving their study habits. The effectof self-mitigating measures like thesemay eliminate or reduce the effects ofthe impairment to the point that it nolonger substantially limits the major lifeactivity. In these cases, the student is notconsidered disabled under the ADA.

In McGuinness v. University of NewMexico School of Medicine,114 the TenthCircuit considered a medical student’sclaim that he was disabled because hehad an anxiety disorder that substantiallylimited his “academic functioning.” Hisdisorder manifested itself when he tookchemistry and mathematics tests. Thecourt first determined that although theanxiety disorder qualified as an impair-ment under the ADA, its manifestationin only two academic subjects did notamount to a limitation of a major lifeactivity. The court stated that even ifperformance in chemistry and mathconstituted a major life activity, this student’s limitation would not be substantial. The court found that the student had developed study habits thatallowed him to overcome his difficulties,thus mitigating the effects of his anxietydisorder. In holding that the student wasnot disabled, the court stated: “Just aseyeglasses correct impaired vision, sothat it does not constitute a disabilityunder the ADA, an adjusted study regimencan mitigate the effects of test anxiety.”115

E. A Record of Impairment

An individual may also be protectedunder the ADA and Section 504 if theindividual has a record of impairmentthat substantially limits a major lifeactivity. Pursuant to this provision, anindividual with a record of an impairmentis protected under the ADA when he orshe has a history of, or has been misclas-sified as having, a mental or physicalimpairment that substantially limits oneor more major life activities.116 This provision was intended to ensure thatpeople are not discriminated againstbecause of a history of disability orbecause they have been misclassified asdisabled.117 The fact that an individualhas a record of being a disabled veteran,is on disability retirement, or is classifiedas disabled for other purposes, does notguarantee that the individual is disabledfor purposes of the ADA.118 The most significant Section 504 case relating tothe “record of impairment” definition isSchool Board of Nassau County v.Arline,119 in which the Supreme Courtheld that a teacher’s repeated hospitaliza-tion for tuberculosis was sufficient toestablish a record of impairment.120 Inthe Arline case, an elementary schoolteacher’s employment was terminatedafter she suffered a third relapse oftuberculosis within two years.121 TheCourt held that the teacher’s previoushospitalizations for tuberculosis weresufficient to establish that she had arecord of impairment within the meaningof Section 504.122 The court further recognized that although some personswho have contagious diseases may pose aserious health threat to others, this doesnot automatically exclude all personswith the disease from the protectionsafforded by Section 504. The record ofimpairment analysis has also been usedin finding former psychiatric patients,123

patients with cardiovascular disease,124

individuals suffering from shoulder dis-locations,125 and individuals with hepatitisB126 to be disabled under the ADA.

F. Regarded As Having An Impairment

If an individual has neither a physicalnor a mental impairment that substan-tially limits a major life activity nor arecord of such impairment, he or shemay still be “regarded as” having such animpairment.127 The Supreme Court hasarticulated the rationale behind this provision as follows: “[A]n impairmentmight not diminish a person’s physical ormental capabilities, but could neverthelesssubstantially limit that person’s ability towork as a result of the negative reactionsof others to the impairment.”128 Accordingto EEOC guidelines, one is regarded ashaving a substantially limiting conditionif an individual has: (1) a physical ormental impairment that does not sub-stantially limit major life activities, but istreated by one’s employer as constituting



113Id. at 491.114170 F. 3d 974 (10th Cir. 1998), cert. denied, 526U.S. 1051 (1999).115Id. at 979.116Id.11729 C.F.R. § 16.302(k).11856 Fed. Reg 35,742 (July 26, 1991).119480 U.S. 273 (1987).120See id. at 281.121Id. at 276.122Id. at 285.

123See Allen v. Heckler, 780 F. 2d 64,66 (D.C. Cir. 1985)(holding that “[a]lthough plaintiffs are no longerinstitutionalized, the [Rehabilitation] Act recognizesthat discrimination also occurs against those who atone time had a disabling condition. The handicapthat these people face is the continuing stigma ofbeing a former psychiatric patient; this disability doesnot disappear on discharge from the hospital.”).

124See Bey v. Bolger, 540 F. Supp. 910 (E.D. Pa. 1982).125See Mahoney v. Ortiz, 645 F. Supp. 22 (S.D.N.Y.1986).126Kohl by Kohl v. Woodhaven Learning Center, 672 F.Supp. 1221 (W.D. Mo. 1987).

12729 C.F.R. § 1630.2(l).

128School Bd. of Nassau County v. Arline, 480 U.S.273, 283 (1987). The Court gave examples ofindividuals who may be regarded as having a disability, including a child with cerebral palsy anda woman crippled by arthritis. According to theCourt, both these individuals would possess physical characteristics that an employer may perceive as limiting the individual’s ability eventhough both persons may be qualified to perform aparticular job.


such a limitation; (2) a physical or mentalimpairment that substantially limitsmajor life activities only as a result of theattitudes of others toward such impair-ment; or (3) no physical or mentalimpairment as defined in the Act [ADA],but is treated by one’s employer as havinga substantially limiting impairment.129

The key factual determination to bemade under this section of the ADA’sdefinition of disability, is whether theapplicant or student is treated as disabled.The ADA makes it illegal to discriminateagainst individuals based on negativeattitudes or perceptions. However, themere fact that society as a whole perceivesa condition as disabling is not, by itself,sufficient to support a finding of theindividual as disabled; there must also beproof that the particular employer perceivesthe individual as disabled. Applying theEEOC guidelines to the educationalarena, if an institution treats a student ashaving a substantially limiting impairment,the student may qualify as disabled forpurposes of the ADA and Section 504.This protection is particularly importantfor students with stigmatizing conditionsthat may be viewed as impairments, butdo not in fact result in a substantial limitation of a major life activity. 130

Practice Tip: An institution should notrely on past accommodations the studentmay have received to determine whetherthe student is currently disabled. By blindlyfollowing the accommodation practices thestudent received at a prior institution, themedical school may have “regarded” thestudent as disabled based on a “record ofimpairment,” in which case the student isentitled to ADA protection, regardless ofthe student’s current capabilities.

III. Admissions Admission practices and proceduresmust comply with federal regulationspromulgated under Section 504 and theADA. These regulations prohibit aninstitution from denying admission to ordiscriminating against a qualified personon the basis of disability in admission orrecruitment.131 In addition, in adminis-tering its admission policies, an institution“may not apply limitations upon thenumber or proportion of [disabled] persons who may be admitted. . . maynot make use of any test or criterion foradmission that has a disproportionateadverse effect on [disabled] persons . . .and may not make preadmission inquiryas to whether an applicant for admissionis a [disabled] person.”132

In reviewing the requirements of Section504, one court described the followinglegal parameters an institution mustabide by with respect to its admissionprocess:

[a]n institution is not required todisregard the disabilities of a handi-capped applicant, provided thehandicap is relevant to reasonablequalifications for acceptance, or tomake substantial modifications in itsreasonable standards or program toaccommodate handicapped individualsbut may take an applicant’s handicapinto consideration, along with allother relevant factors, in determiningwhether she is qualified for admission.The institution need not dispensewith reasonable precautions orrequirements which it would normallyimpose for safe participation by students, doctors and patients in itsactivities. Section 504 simply insuresthe institution’s even-handed treat-ment of a handicapped applicantwho meets reasonable standards sothat he or she will not be discrimi-nated against solely because of thehandicap. But if the handicap could

reasonably be viewed as posing asubstantial risk that the applicantwould be unable to meet its reasonablestandards, the institution is not obligated by the Act to alter, diluteor bend them to admit the handi-capped applicant.133

A. Otherwise Qualified

1. Essential Function or Requirement ofthe Program

To be qualified for a particular program,the student must be capable of fulfillingthe essential functions or requirementsof the academic program, with or without reasonable accommodations.The essential requirements of a medicalprogram include the academic as well astechnical requirements.134 In Lane v.Pena,135 the Federal District Court inWashington, D.C. addressed the issue ofwhether a student with a disability met aprogram’s essential requirements. In thatcase, the United States Merchant MarineAcademy expelled a student who developedinsulin-dependent diabetes. The Academyclaimed that the student could no longersatisfy the naval reserve service obligationdue to the diabetes and, therefore, wasnot qualified for the program. The courtdisagreed with the Academy’s assessmentand found the Academy served two


12929 C.F.R. § 1630.2(l).130See, e.g., Bragdon v. Abbot, 524 U.S. 624 (1998)(finding an individual with asymptomatic HIV tobe disabled for purposes of the ADA).

131C.F.R. § 104.42(a)132Id. 104.42(b)(1-3); see infra notes 152 - 160 andaccompanying text (discussing pre-admissioninquiries).

133Doe v. New York University, 666 F. 2d 761, 775(1981). See also Southeastern Community Collegev. Davis, 442 U.S. 397, 406 (1979).

13434 C.F.R. 104.3(l)(3)(2004).135867 F. Supp. 1050 (D.D.C. 1994).

purposes, a military purpose and a trainingpurpose. The court held that the navalreserve requirements were not essentialto the training purpose. Therefore, thestudent could not be dismissed ongrounds that his diabetes precluded himfrom being accepted for a naval reservecommission after graduation, and hisinability to obtain that commission didnot preclude the student from beingqualified to complete the merchantmarine academy program.

Practice Tip: In order for a student to bedenied admission because the student’sdisability renders the student not other-wise qualified, the functions the student isunable to fulfill must be essential to thetraining program. Applied to the context ofmedical education, the case discussed inthe text above suggests that, even if it isunlikely that an applicant would be able tosustain a full-time clinical practice uponcompletion of his or her training, that factalone is not a basis to deny admission.

2. Modification of Standards

An educational institution is not requiredto modify its admission standards forapplicants with disabilities. An applicantwith a disability may lawfully be deniedadmission to the program if the appli-cant is unable to meet the program’sadmission requirements.136 The UnitedStates Supreme Court first addressed theissue of whether an institution wasrequired to modify its admission standardsdue to a student with a physical disabilityin Davis v. Southeastern CommunityCollege.137 Davis involved an applicantwith a severe hearing impairment whoapplied to the school’s nursing program.The school denied her admission basedon evidence that her hearing impairmentcould compromise patient safety. TheSupreme Court, in upholding the decisionto deny the applicant admission, stated:“[i]t is undisputed that [the applicant]could not participate in [the school’s]nursing program unless the standards

were substantially lowered. Section 504imposes no requirement upon an educa-tional institution to lower or to effectsubstantial modifications of standards toaccommodate a handicapped person.”138

The prohibition against requiring aschool to modify its academic standardsdue to a student’s disability was recentlyupheld by the Eighth Circuit in the caseFalcone v. University of Minnesota.139 Thatcase involved a student who enteredmedical school with a learning disabilityand who received accommodations inthe form of extra test time, flexible deadlines, and tutoring.140 Despite theseaccommodations, the student failed severalfirst-year courses. The student consultedwith the school’s disability services specialist and received additional accom-modations, including double time forexaminations, a private room for tests, amicroscope and slides for home use,student notes, and regular meetings withhis faculty mentor.141 With these accom-modations, and the allowance to retakefailed examinations, the student was ableto complete the required two years ofclassroom courses and begin clinicalrotations. The student failed his firstclinical rotation, but was allowed to retakeit. The student successfully completed hisfirst rotation on his second attempt, butsubsequently failed his second rotation.After a hearing before a Universityscholastic committee, the student wasdismissed from the University. TheUniversity based its decision to dismissthe student on his failure to demonstratethat he had, with or without reasonableaccommodation, the ability to “synthesizedata obtained in a clinical setting to perform clinical reasoning which is anessential element of functioning as amedical student and ultimately as aphysician.”142 Subsequent to his dismissal,the student sued the University underthe Rehabilitation Act, alleging that theUniversity failed to provide reasonableaccommodations for his disability andthat the University dismissed him based

solely on his disability. The court foundthat the University’s decision to dismissthe student was not based on student’sdisability, but on the student’s performance.The court did not believe the Universitywas required to alter its program in sucha manner that would allow the studentto graduate with a medical degree without demonstrating the ability to carefor patients. The court ultimately heldthat the student was not “otherwise qualified” for the program and that thestudent failed to establish how additionalaccommodations would render him otherwise qualified.143

Practice Tip: A medical school is notrequired to waive the essential requirementsof its program or its technical standards toaccommodate students with disabilities.Therefore, a school’s faculty should developtechnical standards for the educationalprogram with great care and consideration.Technical standards should include thoseskills and abilities that are essential to thecompletion of the educational program.Skills and abilities required for admissionshould be tied directly to those required forgraduation. Any skill or ability requiredfor admission should be tied directly towhat is taught and assessed in the curriculum or it should be removed fromthe technical standards.



136Medical school admission standards include testscores and the ability to meet the program’s techni-cal requirements.

137442 U.S. 397(1979).138Id. at 398.139388 F.3d 656 (8th Cir. 2004).140Id. at 657.141Id. at 657-58.142Id. at 659.143Id. at 660-61.


3. Direct Threat to Health or Safety

Both the ADA and Section 504 providethat an individual with a disability is notqualified for a postsecondary educationalprogram if his or her participationwould pose a direct threat to the healthor safety of other individuals.144 The issueof safety was one of the reasons the courtfound the student in Davis v. SoutheasternCommunity College not qualified to participate in the school’s nursing program.145 Whether a student poses athreat to the health and safety of othersmust be analyzed on a case-by-casebasis.146 A student will not be consideredto be an “otherwise qualified” individualwith a disability where program restrictionsthat apply generally to a particular typeof physical or mental impairment arelegitimately and directly related to reasonable health and safety concerns.147

In assessing the evidence of such a risk toothers, institutions must be mindful tonot unintentionally discriminate againststudents with disabilities. A hypotheticalor presumed health or safety risk is not asufficient basis to deny a student admission. The risk must be of a seriousnature and it must pose severe and likelyharms to the community that are directlyassociated with the operation of the relevant program.

In the case Doe v. New York University,148

the court considered the issue of whethersafety concerns justified the denial of amentally ill student’s request for read-mission to medical school. The studentwas diagnosed with borderline personalitydisorder and had a history of psychoticepisodes in which she physically harmedherself and others. The court held thatthe applicable question in determiningwhether the student was otherwise qualified to be readmitted to medicalschool was “the substantiality of the riskthat her mental disturbances will recur,resulting in behavior harmful to herselfand others.”149 Finding the risk to be substantial, the court held the school did

not discriminate against the student indenying her readmission.

While a student may be denied admissionor dismissed from a medical programbased on concerns about health and safety,the parameters of this exception arequite narrow. The school must be able toshow that the disabled individual poses adirect health or safety threat. A “directthreat” means a “significant risk” that“cannot be eliminated by a modificationof policies, practices, or procedures, orby the provision of auxiliary aids or services.”150 Decisions concerning safetythreats may not be made on the basis ofgeneralizations or stereotypical beliefsabout a particular disability, but must bemade on a fact-specific inquiry concerningthe effects of the disability at issue on theparticular student or applicant. The standard for establishing that the studentposes a health or safety risk is quite highand must be based on “reasonable judgment that relies on current medicalknowledge or on the best available objective evidence to ascertain: thenature, duration, and severity of the risk;the probability that the potential injurywill actually occur; and whether reasonablemodifications of policies, practices, orprocedures will mitigate the risk.”151

Practice Tip: More than a mere risk ofinjury is required before an institutionmay disqualify an applicant or studentwith a disability from participation in aprogram. Any denial of admission or decision to dismiss based on the risk offuture injury to the individual or othersmust be examined with special attentionto the requirements of the ADA andSection 504.

B. Pre-Admission Inquiries

The regulations are clear that pre-admis-sion inquiries as to whether a studentmay be disabled are prohibited. However,an inquiry into an applicant’s disability ispermissible if the institution is (1) takingremedial action to correct effects of past

discrimination or (2) taking voluntaryaction to overcome effects of conditionsthat resulted in limited participation inthe past.152 When making an inquiry forone of these allowed purposes, the insti-tution must make clear, either orally oron the application form, its reasons fordoing so, that providing the informationwill not subject the applicant to anyadverse treatment, and that the informa-tion will only be used for the allowedpurpose.153 Pre-admission inquiries arenot permitted even if answering theinquiry is voluntary and does not affectadmission. The Office of Civil Rights(OCR) found one college’s applicationform, which asked applicants to check abox if the applicant had any disability orhandicap and then requested the applicantto enter the appropriate code from a listof disabilities, violated the regulationseven though the form stated thatresponses were voluntary and did notaffect admission to the school.154


14428 C.F.R. § 36.208 (2004); 28 C.F.R. Part 35, App.A. (2004).

145Southeastern Community College v. Davis, 442U.S. 397, 404 (1979).

146Mendez v. Gearan, 956 F. Supp. 1520 (N.D. Cal.1997).

147Davis v. Meese, 692 F. Supp. 505 (E.D. Pa. 1988),judgment aff 'd, 865 F.2d 592 (3rd Cir. 1989).

148666 F. 2d 761 (2d Cir. 1981).149Id. at 777.

15028 C.F.R. §36.208(b) (2004) (interpreting the definition of “direct threat” within the context ofTitle III of the ADA); see also School Bd. of NassauCounty v. Arline, 480 U.S. 273, 288 (1987) (interpreting the definition of “direct threat” withinthe context of Section 504).

151Bonnie P. Tucker, Application of the AmericansWith Disabilities Act (ADA) and Section 504 toColleges and Universities: An Overview andDiscussion of Special Issues Relating to Students,23 J.C. & U.L 1, 35 (1996).

15234 C.F.R. §§ 104.42(c), 104.6(a), (b)(2004).15334 C.F.R. § 104.42(c).

154Glendale Community College, 5 Nat'l Disab. L.Rep. (LRP Publications) ¶ 36 (Dec. 16, 1993).

The prohibition on disability-relatedpre-admission inquiries extends toinquiries concerning an applicant’s knownbehavioral problems. In one case, anapplicant to a university who identifiedhimself as having been diagnosed withparanoid schizophrenia and who hadbehaved in a disruptive manner duringhis contacts with university personnel,was sent a letter asking for a release ofinformation from psychiatrists and several letters of reference.155 The letterwas sent in connection with the university’s“Policy on Pre-Admission Review forApplicants with Known BehavioralProblems,” which was designed to protect the members of the universitycommunity by limiting the risk ofdisruptive or harmful activities. The university implemented the policy whenknown facts indicated an applicant’sbehavior could endanger the health,safety, or property of university communitymembers and adversely affect the university’s educational mission.

The OCR held that the university’s policyviolated Section 504 because the universityfailed to distinguish between applicantswith a handicapping health conditionthat may pose a substantial risk of harmand applicants who merely have a historyof certain handicapping health conditions.The OCR found that the university conducted pre-admission inquiries basedupon undocumented indications of theexistence of a condition. The university’spolicy, which did not require actual evidence that the applicant had engagedin harmful or disruptive behavior, wasfound by the OCR to violate Section 504regulations.156

In a case involving North Dakota StateUniversity, the OCR held that applicantsto a counseling program could be askedabout past mental health treatment.157

The counseling program’s bulletin statedthat as a part of the application process itreserved the right to obtain informationabout the student’s professional

competence from qualified professionals.During the course of an admission interview, the University learned that anapplicant had received substantial personalcounseling, which included treatment bythree psychiatrists and several counselorsand involved non-traditional therapies.The University requested permissionfrom the applicant to speak to her mentalhealth professionals in order to evaluatewhether she could handle the emotional,personal, and psychological issues thatwere part of the counseling program.The applicant refused, and the schoolstated that without this information itcould not complete its processing of herapplication. The OCR held that theUniversity’s request did not violate theprohibition on pre-admission inquiries.While the admission interview form forthe counseling program included aninquiry as to the applicant’s receipt ofpersonal counseling, it made no directinquiry regarding a “handicap.” TheOCR found the purpose of the inquirywas to determine whether the applicantwas an appropriate candidate for theprogram, had the motivation and emotional stability to be a human serviceworker, and had adequately resolved any personal/therapeutic issues beforeattempting to counsel others with similar issues.158

Contrary to the OCR’s decision in theNorth Dakota State University case, severalcourt decisions have held that questionsasked of medical school applicantsregarding prior treatment for any mental,emotional, or nervous disorders violate theADA. For example, in Medical Society ofNew Jersey v. Jacobs,159 the court foundthat a question regarding past mentalhealth problems on the medical license application violated the ADA because itforced applicants with mental disabilities tosubject themselves to further inquiry andscrutiny not required of other applicants,and the board could not show that thequestion was necessary to the performanceof its licensing function.160

Practice Tip: Both the OCR and case lawclearly state that an institution shouldnever ask an applicant about a past“handicap” or “disability”. Broad questionsabout past mental health history areunlikely to be allowed outside a counselingor similar educational program. Unless amedical school is able to demonstrate thatpre-admission inquiries regarding an indi-vidual’s disability are necessary for thedetermination of whether the applicant isan appropriate candidate for the program,pre-admission inquiries regarding an individual’s disability should be avoided.However, an institution may ask an applicant whether he or she is able to meetthe program’s technical standards with orwithout reasonable accommodations.



155Pennsylvania State Univ., 2 Nat'l Disab. L. Rep.(LRP Publications) ¶35 (May 3, 1991) at 172.

156Id.

157North Dakota State Univ., 2 Nat'l Disab. L. Rep.(LRP Publications) ¶174 (Sept. 6, 1991).

158Id. at 653.1591993 WL 413016 (D.N.J 1993).

160See also Ellen S. v. Florida Bd. of Bar Examiners,859 F. Supp. 1489, 1494 (S.D. Fla. 1994) (mentalhealth questions “discriminate against Plaintiffs bysubjecting them to additional burdens based ontheir disability”); In re Applications of Underwoodand Plano, 1993 WL 649283 at *2 (Me. Dec. 7,1993)(requirement that applicants answer mentalhealth questions discriminates on the basis ofdisability and imposes eligibility criteria thatunnecessarily screen out individuals with disabilities);Clark v. Virginia Bd. of Bar Examiners, 880 F. Supp.430 (E.D. Va. 1995). But see Applicants v. TexasState Bd. of Bar Examiners, 1994 WL 776693 (W.D.Tex. Oct. 10, 1994) (upholding inquiry into applicants’ mental history where questions wereaddressed only to specific behavioral disordersfound relevant to the practice of law, and the question used by the board before 1992 had been"revised. . . to comply with the ADA."); McReady v.Illinois Bd. of Admissions to the Bar, 1995 WL 29609at *6 (N.D. Ill. Jan. 24, 1995) (holding the ADA wasnot violated where applicant was not asked aboutpossible mental health problems but referenceswere. “This inquiry is distinguishable from questionsasked on the bar application itself because it isnoncoercive and imposes no additional burden onthe applicant. Further, such an inquiry directed atthe Plaintiff 's references necessarily focuses on hisbehavior, not his status.” Id.


C. Admission Tests

Section 504 Regulations and Title III of theADA prohibit a college or University fromusing “any test or criterion for admissionthat has a disproportionate, adverse effect”on applicants with disabilities, unless thetest or criterion has been validated as apredictor of success in the program andalternative tests or criteria that have a lessdisproportionate adverse effect are notavailable.161 In addition, admission testsmust be selected and administered so as toensure that when a test is administered toan applicant with impaired sensory,manual, or speaking skills, the test doesnot reflect those impaired skills, butactually measures the applicant’s aptitudeor achievement level.162 In many situations,this will require that reasonable accom-modations be provided for test-takerswith disabilities.163

Special problems arise when outsideentities that administer admission tests(such as the Medical College AdmissionTest, “MCAT”) indicate that tests takenwith accommodations were taken undernon-standard conditions. When the testis “flagged,” the school receiving the testresults is put on notice that the applicantlikely has a disability, which may thenresult in discriminatory treatment. TheOCR has ruled that a school’s practice ofevaluating an applicant’s medical schooladmission test score in a different mannerbecause the test was taken under non-standard conditions violates Section 504.164

Practice Tip: A school may consider a testscore indicating the test was taken undernon-standard conditions as long as the testscore is not the only factor used for admission and the applicant is not deniedadmission because he or she took the testunder non-standard conditions. The merefact that a school has notice that an applicant’s test score was achieved undernon-standard conditions does not violateSection 504.165 However, Section 504 wouldbe violated if an institution were to ask thestudent why he or she took the test undernon-standard conditions, or what accommodations were provided. It isequally discriminatory to evaluate scoresfrom tests taken under non-standard conditions more favorably than scores fromtests taken under standard conditions. TheAssociation of American Medical Collegesrecommends that less weight be given toMCAT scores earned under non-standardconditions and more weight be given toother application data.

D. Readmission

The statutory and regulatory prohibitionagainst discrimination in admission alsoapplies to students seeking readmissionafter they have been dismissed for academic or behavioral difficulties.When considering a student’s applicationfor readmission, the school must takeinto consideration measures the studenthas taken to address his or her disability.If a student is denied readmission basedon the student’s academic record andthere is no indication that the studentwas denied readmission due to his or herdisability, the school may lawfully denythe student readmission. This was thecase in Rosenthal v. Webster University,166

in which the court found the student’ssuspension from the University was notbased on the student’s disability, but uponhis disorderly and threatening actions, andthat the student was denied readmissionbecause of further inappropriate conductwhich disqualified him from readmission.167

Practice Tip: A student’s disability is irrelevant in determining whether a studentshould be readmitted to a program. Aninstitution may deny readmission to a formerstudent with a disability if the student wasdismissed based on the student’s performance,behavior, or academic record. However,the institution should be careful to notbase its decision not to readmit a formerstudent with a disability on stereotypes ornonfactual information.


16134 C.F.R. 104.42(b)(2)(2004).

16234 C.F.R. 104.42 (b)(3)(2004); 42 U.S.C. §12189.Title II regulations do not address this issue, butthe same principles apply.

163See infra notes 167 - 184 and accompanying text(discussing reasonable accommodations in theadmissions process).

164Suny Health Science Center at Brooklyn-Collegeof Medicine, 5 Nat’l Disab. L. Rep. (LPRPublications) 77 (Aug. 18 1993).

165Id.166230 F. 3d 1363 (8th Cir. 2000).

167See also Texas Chiropractic College, 2 Nat'l Disab.L. Rep. (LRP Publications) ¶252 (Oct. 18, 1991)(concluding a student with a visual impairmentwas not discriminated against where request forreadmission was denied based upon the student’sacademic record); Robinson v. Hamline Univ., 1994WL 175019 (Minn. App. 1994) (holding law stu-dent with learning disability was not discriminatedagainst where readmission was denied due to pooracademic record); Cleveland State Univ. (OH), 3Nat'l Disab. L. Rep. (LRP Publications) ¶198 (Sept.29, 1992) (same); Golden Gate Univ. (CA), 2 Nat'lDisab. L. Rep. (LRP Publications) ¶253 (Oct. 8,1991) (same). But see DePaul Univ. 4 Nat’l Disab.L. Rep. (LRP Publications) 157 (May 18, 1993)(OCR ruling that a school must consider theactions a student has taken to address his or herdisability when considering the student’s applica-tion for readmission).

IV. ReasonableAccommodationsPostsecondary educational institutionsare required to provide reasonableaccommodations for qualified individualswith known disabilities. Neither ADAnor Section 504 regulations require aninstitution to make an accommodation ifit is unreasonable, if it would constitutean undue burden or hardship to provideit, or if it would require a fundamentalalteration to the institution’s program.168

Determining whether a student’srequested accommodation is reasonableor constitutes an undue burden can bedifficult to determine. While the courtsand regulations interpreting the ADAhave provided some guidance, neitherthe courts nor the ADA has defined theprecise meaning of what is reasonable. Itis clear that any decision about whether aproposed modification is reasonableinvolves analyzing the particular facts ofthe case, the degree to which a modificationaccommodates an individual’s disability,and the cost to the institution in implementing the accommodation.169

When analyzing whether a student’srequest for an accommodation is reason-able, there are a number of questionsthat an institution should answer beforemaking a final determination including:

1) What reason has the student givenfor requesting an accommodation?

2) How difficult is it to provide therequested accommodation?

3) Are there valid reasons to deny therequested accommodation?

4) Are there alternatives that wouldeffectively address the student’srequest?

Answers to these questions will aid instriking a balance between the legitimateinterests of the institution and the legitimate interests of the student,which is the stated goal of reasonableaccommodations.170

Courts have defined “reasonable accom-modation” more by what it is not thanby what it is. It is clear that educationalinstitutions are not required to makefundamental or substantial modifica-tions. The leading case in the educationcontext addressing what constitutes a“fundamental alteration” is SoutheasternCommunity College v. Davis.171 In Davis,the Supreme Court held that a nursingschool did not discriminate against anapplicant with a hearing impairment byrefusing to admit the applicant to itsprogram. The Court held that the applicant was not otherwise qualified forthe nursing program because, if theapplicant were to participate in the clinicalphase of the program, the applicantwould have to be provided with an individual nursing instructor in order toensure patient safety.172 The Court concluded that if the applicant wereunable to participate in clinical courseswithout close supervision, the nursingschool could only allow her to take academic courses, a situation that wouldnot equate with the degree of training anursing school normally provides. TheCourt held that such a fundamentalalteration in the nature of a program isfar more than the “modification”required by Section 504.173

Courts have held several categories ofrequested accommodations as notrequired under the ADA or Section 504.Schools are not required to waive oreliminate an element, goal, or purpose ofa program in order to accommodate students with disabilities. Schools neednot create new or different programs orservices for students with disabilities oroffer different or lesser benefits or servicesto students with disabilities. In addition,

schools are not required to make reasonable accommodations wheredoing so would create a direct health orsafety risk to the student or to others.

The student requesting the accommoda-tion is responsible for providing theinstitution with documentation supportingthe student’s need for the accommodation.The institution is not legally obligated toprovide an academic adjustment until ithas received documentation supportingthe adjustment. Once the institutionreceives proper documentation, the obligation to accommodate is prospective,not retroactive.174 The documentationmust be sufficient to establish that (1)the student is disabled as defined by theADA and Section 504 regulations, and(2) the requested accommodation isappropriate for the student’s condition.The documentation must provideenough information for institutionaladministrators to understand the natureof the disability and determine whataccommodations, if any, are necessary.Moreover, the student is responsible forany costs or fees associated with obtainingthe necessary documentation to supporthis/her claim.



168See 28 C.F.R. § § 36.302(a),36.303(a)(2004)(interpreting Title III of the ADA);28 C.F.R. § 35.130(b)(7), 35.164 (2004) (interpret-ing Title II of the ADA).

169See e.g., Staron v. McDonald’s Corp, 51 F. 3d 353,356 (2nd Cir. 1995); Crowder v. Kittagawa, 81 F. 3d1480, 1486 (9th Cir. 1996); Tuck v. HCA HealthServices of Tennessee, 7 F. 3d 465, 471 (6th Cir.1993); Nathanson v. Medical College ofPennsylvania, 926 F. 2d 1368, 1385 (3rd Cir. 1991).

170See e.g., Wynne v. Tufts University, 976 F. 2d (1stCir. 1992).

171442 U.S. 397 (1979).172Id. at 409.173Id. at 410.

174See Dartmouth College, 11 Nat’l Disab. L. Rep.(LRP Publications) 277 (May 1997); see infra notes230 - 237 and accompanying text (discussing theinstitution’s obligation of accommodating a stu-dent’s disability of which the institution isunaware).


Practice Tip: Academic administrators,faculty, and staff should be provided training,on an ongoing basis, regarding students’rights and each party’s responsibilitieswith respect to disability accommodation.It is important that the institution’semployees understand their role in assistingthe institution in meeting its complianceobligations. In addition, students should beinformed of their rights and responsibilitiesand the institution’s procedures regardingdisability accommodations.

The OCR has held that an institutiondoes not discriminate against a studentby requesting supporting documenta-tion. When a student requesting accommodations due to his dyslexiaclaimed that he was being discriminatedagainst when the institution requestedwritten documentation of his disability,175

the OCR disagreed and found that theinstitution was not obligated underSection 504 or the ADA to accommodatethe student if the student refused to provide proper medical documentation.176

Institutions are not obligated to honoraccommodation requests when the diagnostic data provided by the studentdo not establish that the accommodationis necessary. For example, in one caseinvestigated by the OCR,177 a studentwith a learning disability requested thatessay questions be substituted for multiple-choice questions on examinations.A review of the student’s medical documentation revealed that the doctorwho performed a neurological evaluationdid not determine that the studentrequired essay-type examinations as aneducational accommodation. Nor did thestudent’s vocational rehabilitation counselor determine that a substitutionwas required. In addition, the college didprovide a number of other adjustmentsand aids, including an alternate test location, extended time on examinations,information broken down into sequentialform, and use of a tape recorder for lectures. According to the OCR, the college

violated neither Section 504 nor Title IIof the ADA and was not obligated toprovide the student with tests in essayformat.178 In addition to requiring the student to provide sufficient documenta-tion supporting the need for an accommodation, the institution mayrequire the student’s documentation tobe reasonably current.179 In a case involvingNorthwestern College, a student requesting accommodations submitted apsychological report that was more thanfour years old in support of his need forthe accommodation.180 The OCR ruledthat it was not unreasonable for the college to request the student to obtain acurrent psychological evaluation in orderto determine the student’s need foraccommodations.181

Practice Tip: It is possible that a medicalstudent requesting accommodationsreceived accommodations at the student’sundergraduate institution. The medicalschool’s accommodations officer should becareful to review the disability currentlybeing asserted by the student beforeapproving the accommodation to be provided. Care should be taken not to“blindly follow” the accommodations thatmay have been provided at an earlier stage of the student’s career – as thoseaccommodations may no longer be necessaryor appropriate. Factors to be consideredare the currency of testing and the student’scurrent capabilities – what once mighthave been a reasonable accommodationmay no longer be reasonable. (For example,consider the situation of a student with alearning disability that was diagnosedwhen she was 17 years old and was accommodated at her undergraduateschool based on the original test results,who then enters medical school at age 22.The student may need another diagnosticassessment at that point to provide themedical school’s accommodations officerwith current information about the student’s disability and any necessaryaccommodations.)

A. Accommodations in AdmissionRequirements

As discussed in Section III above, aninstitution is not required to loweradmission requirements to accommodateindividuals with disabilities. The courtaddressed the issue of accommodationsin admission requirements in Betts v.Rectors and Visitors of the University ofVirginia.182 The case involved an applicantwho was placed on the medical school’sadmission wait list. As an alternative to


175Community College of Vermont, 4 Nat’l Disab. L.Rep. (LRP Publications) 406 (Sep. 17, 1993).

176Id. See also University of Alaska Anchorage, 5Nat'l Disab. L. Rep. (LRP Publications) ¶39 (Dec.28, 1993) (school was not required to give studentextended time for course examinations until heprovided documentation supporting the request);Lewis & Clark College (OR), 5 Nat'l Disab. L. Rep.(LRP Publications) ¶248 (Feb. 16, 1994) (schoolwas not required to give student extended time andreschedule exams so there would be more timebetween them where she failed to provide docu-mentation supporting requests); University ofKansas, 2 Nat'l Disab. L. Rep. (LRP Publications)¶185 (Oct. 31, 1991) (school did not discriminateagainst a student with autism, narcolepsy, andother conditions when it requested a copy of stu-dent's certification for a support dog; the dog wasin student union building and the school had validconcerns about violating its food service license ifuncertified dogs were allowed in the building);University of Kansas, 1 Nat'l Disab. L. Rep. (LRPPublications) ¶ 287 (Dec. 21, 1990) (no violation of§ 504 where school refused academic adjustmentsto medical student who failed to provide schoolwith documentation of his disability).

177State University of New York, 4 Nat’l Disab. L.Rep. (LRP Publications) 432 (Sep. 20, 1993).

178Id. See also Northwestern College (OH), 6 Nat'lDisab. L. Rep. (LRP Publications) ¶261 (Jan. 5,1995); (student's psychological examination didnot support need for oral testing); CumberlandCommunity College (NJ), 6 Nat'l Disab. L. Rep.(LRP Publications) ¶418 (Dec. 30, 1994) (student'spsychological examination showed limitations inmemory and other cognitive problems, but did notshow need for weekly testing); Georgia College, 3Nat'l Disab. L. Rep. (LRP Publications) ¶304 (Dec.9, 1992) (school did not violate § 504 where it provided student with some academic adjustmentsbut refused others until student provided furtherevaluations to document the extent and nature ofher learning disabilities and academic adjustmentsneeded).

179See Northwestern College, 6 Nat’l Disab. L. Rep.261 (LRP Publications) (Jan. 5, 1995)

180Id.181Id.182198 F. Supp. 2d 787 (W.D. Va. 2002)

remaining on the wait list, the Universityoffered the applicant a place in its minorityadmission program, which was designedto prepare minority and disadvantagedpersons for future admission to the medical school. The University guaranteedadmission to the medical school to program participants who, among otherrequirements, maintained a 2.75 gradepoint average (GPA) per semester,received no grade lower than a “C”, andperformed satisfactorily in accordancewith a faculty committee’s standards. Thestudent failed to achieve the minimumGPA required by the program and wassubsequently diagnosed with a learningdisorder. After being diagnosed, the student was provided extra time on theremainder of his examinations. Althoughthe student’s examination scores improvedwith the extra time, his cumulative GPAstill did not meet the minimum requiredand he was not admitted to theUniversity’s medical school. The courtheld that the applicant’s failure to obtainthe University’s objective GPA requirementwas a legitimate, non-disability basedreason for the University’s decision todismiss the applicant from the pre-admission program,183 and that theUniversity was not required to lower itsadmission standards and admit theapplicant.184

B. Accommodations in DegreeRequirements

An institution is not required to waivecourse requirements that are an integralcomponent of the academic program.In a case involving a student’s requestthat her work experience be substitutedfor two required courses in the school’spharmacy program in order to accom-modate her disability, the OCR held thecollege was not required to waive itsrequired program courses. The student’srequest was denied by the school on the basis that the courses were “an integralcomponent of the program in that they presented. . . critical technical

information regarding drugs that wasessential not only to the program but thepractice of pharmacy as well.”185

Similarly, in Guckenberger v. BostonUniversity,186 the court held that theUniversity was not required to waive theforeign language requirements of its liberal arts curriculum for students withdisabilities on the basis that the foreignlanguage requirement was an importantcomponent of the overall program.187

If a student with a disability is able toshow that a required course is not necessaryto the program in which the student isenrolled, the institution may be requiredto waive the course requirement as ameans of accommodating the student.The OCR found that an institution violated Section 504 by refusing to allowa student with a learning disability tosubstitute another course for a requiredalgebra course.188 The institution did notdemonstrate that the algebra course wasessential to the program, and the student’sacademic advisors believed that othercourses could be substituted. Perhaps themost troublesome fact weighing againstthe institution was the dean’s denial ofthe course substitution without obtaininginformation as to whether the substitutionwas appropriate or necessary.

Practice Tip: Where a required course isan essential element of the overall program,the school is not required to waive therequirement as an accommodation.Medical schools should prospectively analyzewhich course requirements are essential toa student’s medical education and limit itsrequirements to those identified courses.Other course offerings should be treated aselectives. With respect to the requirementsof individual courses, schools should considerwhich elements are essential. For example,certain types of examinations may begiven with additional time, while it maybe essential that other examinations betaken with time limitations. To the extentthat a test-taking condition is so essentialthat it goes to the fundamental nature of

the course, that condition need not bemodified, even for the purpose of disabilityaccommodation.

C. Accommodations in ClinicalRequirements

In the same manner that schools are notrequired to waive course requirementsthat are integral to the overall program,schools are not required to waive clinicalrequirements when they are an integralpart of the program. The Supreme Courtaddressed the issue of accommodationsto clinical requirements in the caseSoutheastern Community College v.Davis.189 As discussed above,190 the courtheld the school did not violate Section504 by denying admission to its nursingprogram to a deaf applicant because thestudent would only be able to participatein the academic component of the program. Waiving the clinical componentof the nursing program would haveresulted in a fundamental alteration tothe program, and fundamental alterationsare beyond the modifications required bySection 504.191



183Id. at 799.184Id.

185North Seattle Community College, 10 Nat’l Disab.L. Rep. (LRP Publications) 42 (August 23, 1996).

1868 F. Supp. 2d 82 (D. Mass. 1998).187Id. at 89.188Complaint No. 06-90-2084 (OCR Region VI 1991).189442 U.S. 397 (1979).190See supra notes 44–46; 137–138; 145–147; 171–173.191Id. at 410.


A similar decision was reached by theOhio Supreme Court in the case of OhioCivil Rights Commission v. Case WesternReserve University.192 This case involved ablind applicant who sought admission tomedical school. The student’s proposedaccommodations included a raised linedrawing board, tutors and faculty assistance, occasional assistance fromsighted students, laboratory assistance,use of intermediaries to read X-rays andpatient charts and perform parts of thephysical examination, and waiver ofportions of course requirements (such asdrawing blood). The court held thatthese accommodations, especially theaccommodations the applicant proposedfor the clinical component of the program,would result in a fundamental alterationto the program and were not otherwisereasonable.193 However, where accommo-dations to the clinical component of aprogram do not fundamentally alter theprogram or place an undue burden onthe institution, reasonable accommoda-tions are required by the ADA andSection 504.

D. Accommodations in AttendanceRequirements

As with program requirements, courtshave held that an institution need notwaive attendance requirements whereattendance is a fundamental requirementof the program. In McGregor v. LouisianaState University Board of Supervisors,194

the court held that a request by a lawstudent with a physical disability to attendschool part-time rather than full-timewould require a substantial modificationin the law school’s program and was notrequired under Section 504.195

In Maczaczyj v. State of New York,196

a student with a mental disability in aMaster’s degree program requested thatpersonal attendance in the program’s residency requirement be waived andthat he be allowed to participate by telephone. The court found that “excludingplaintiff ’s personal attendance from theresidency requirement would result inlowering the academic standards andimposing a substantial modification ofthe program which would devalue theschool’s end product which would inturn substantially alter the academic program.”197 The purpose of the residencyprogram is to “provide students withintensive academic interaction with eachother and with the faculty throughwhich they are to develop their criticalthinking and communication skills.”198

Allowing a student “to participate overthe phone would interfere with that individual’s educational experience, itwould also interfere with the educationalexperience of the students in the classroom.”199

Practice Tip: For most medical school programs, and especially clinical coursework,attendance is an essential requirement ofthe program and need not be waived bythe institution. Each institution shouldconsider and clearly state in admissionand related materials whether attendanceis essential or fundamental to the program.

E. Auxiliary Aids

The majority of accommodations forstudents with disabilities come in theform of auxiliary aids. Section 504 regulations require an institution to:

take such steps as are necessary toensure that no handicapped studentis denied the benefits of, excludedfrom participation, or otherwisesubjected to discrimination underthe education program or activityoperated by the recipient because ofthe absence of educational auxiliaryaids for students with impaired

sensory, manual, or speaking skills.Auxiliary aids may include tapedtexts, interpreters or other effectivemethods of making orally deliveredmaterials available to students withhearing impairments, readers inlibraries for students with visualimpairments, classroom equipmentadapted for use by students withmanual impairments, and other similar services and actions.Recipients need not provide attendants, individually prescribeddevices, readers for personal use orstudy, or other devices or services ofa personal nature.200

The ADA’s Title II regulations require apublic entity to “furnish appropriateauxiliary aids and services where necessaryto afford an individual with a disabilityan equal opportunity to participate in,and enjoy the benefits of, a service,program, or activity conducted by thepublic entity.”201 In addition, Title III regulations require recipients of federalmoney to provide auxiliary aids such asinterpreters unless they can show thatthe provision of such aids would “resultin an undue burden, i.e., significant difficulty or expense.”202 To date, thereare no cases where a medical school hassuccessfully argued that financial expenseresults in an “undue burden” on theinstitution.


192666 N.E. 2d 1376 (1996).193Id. at 1386.1943 F. 3d 850 (5th Cir. 1993).195Id. at 859-60.196956 F. Supp 403 (W.D.N.Y. 1997).197Id. at 409.198Id.199Id.20034 C.F.R. § 104.44(d)(1)(2)(2004).20128 C.F.R. 35.160.(b)(1)(2004).20228 C.F.R. § 36.303(a)(2004).

Practice Tip: Institutions are affordedflexibility in how to provide auxiliary aidsas long as students are not denied access tomaterials. The regulations allow an educational institution to meet its obligationto provide auxiliary aids by assisting students in using existing resources, suchas state vocational rehabilitation agencies.203

However, the ultimate responsibility andexpense for ensuring that aids are suppliedrests with the institution. Denying a student’s requested accommodation on thebasis that it constitutes an undue financialburden is not likely to be upheld. Whetherthe cost of a particular auxiliary aid is anundue financial burden is determined bytaking into account the institution’s totalresources – not just the resources of thedepartment or program in which the student is enrolled.

1. Multiple Mediums of Text

Institutions are required to provideprinted materials in multiple mediums,including auditory, tactile (Braille), andenlarged print.204 Printed materialsinclude “student handbooks, admissionsapplications, class schedules, financial aidinformation, as well as publications fromother sources relied upon by the post-secondary institution in its educationalprogram, such as textbooks.”205 When thestudent’s preferred medium is not themedium provided by the school, theschool may not categorically refuse toprovide accommodations through a particular medium. Rather, the schoolmay be required to provide access to itsprinted materials in all three mediums. Aschool may provide access to printedmaterials through the use of E-text (electronic text in a digital format readby a computer) in lieu of access throughanother medium.206

In determining whether to honor a student’s request for a particular medium,the importance and consequences ofstudent comprehension is a critical factor.Thus, it is presumed that examinations

and other academic materials will beprovided in accordance with the student’srequest, whereas student event materials(e.g., general campus announcements)may not. Auditory access may be accomplished through various methods,including audio-tapes, personal readers,or synthesized speech.207 Under all cir-cumstances, the alternative method mustbe timely and effective.

2. Interpreters

The OCR has ruled that schools mustprovide sign language interpreters at nocost to the student. However, schoolsneed not provide interpreters when,because of difficulties in obtaining interpreters, alternative means such asnote-takers and assistance from professorsare provided.208 The OCR has held thatthe requirement to provide interpretersextends to class-related activities thattake place off campus, as well as to studyaboard programs.209 In one case investigatedby the OCR, a deaf student alleged thatthe institution denied her auxiliary aidsnecessary for her to pursue her academiccareer. Specifically, she alleged that theinstitution denied her request for aninterpreter for an institute-sponsoredfield trip. Although the field trip was voluntary, the field trip was closely relatedto the subject matter of the seminar andwould have been educationally useful. Assuch, the field trip was an educationalactivity conducted by the institution.Moreover, despite a clear request for aninterpreter, the complainant did not receivea clear response from the institution.210

The OCR found the institution to be inviolation of Section 504.

In another case investigated by theOCR,211 a student with a hearing disabilityalleged that the school discriminatedagainst her on the basis of her hearingimpairment by denying her request forsign language interpreter services for usein a study abroad program. The studentdid not participate in the program

because of the school’s failure to providethe services. The OCR determined thatthe college had failed to take steps necessaryto ensure that the student was notdenied the benefits of, or excluded fromparticipation in, the program due to theabsence of effective auxiliary aids.Although the school offered to provide aportable amplification device, the schooldid not adequately address the student’sconcern regarding the effectiveness ofthe proposed system. In addition, theschool impermissibly considered the costof the requested interpreter services indetermining which auxiliary aids wereavailable for participation in the program.The school did not properly analyze thecost of such services before denying therequest, nor did it fully endeavor todetermine whether the cost could havebeen defrayed by funding from outsidesources, or whether an interpreter couldhave been found at the program location.212



203App. to 34 C.F.R. § 104.44(d)

204Los Rios Community College Dist. (CA),5 Nat’l Disab. L. Rep. (LRP Publications) 423 (Apr. 21, 1994).

205Id.206Id.207Id.

208See Adam M. Milani, Disabled Students in HigherEducation: Administrative and JudicialEnforcement of Disability Law, 22 J.C. & U.L. 989,1023 (1996) (discussing school’s responsibilities inproviding auxiliary aids).

209Naropa Institute (CO), 4 Nat’l Disab. L. Rep.(LRP Publications) 335 (1993).

210Id.

211College of St. Scholastica (MN), 3 Nat’l Disabl. L.Rep (LPR Publications) 196 (Sept. 15, 1992).

212Id.


When a school makes a good faith effort toprovide an interpreter, but is unsuccessfulin doing so, the school is not in violation ofSection 504 or the ADA. The OCR has heldthat Section 504 was not violated where astudent with a hearing impairment wasprovided with two classmates as volunteernote-takers and given extra assistancefrom the professor after efforts to recruitinterpreters were unsuccessful.213

A similar decision was reached in a caseinvolving the University of California,Davis.214 Due to a shortage of sign language interpreters, the school developedalternatives to interpretation for hearing-impaired students. These alternativesincluded real-time stenocaptioning,taped lectures and transcription by astenocaptioner at a later date, taped lectures and interpretation at a later date,use of an oral interpreter, or two note-takers in addition to the use of a trainednote-taker not enrolled in the class. TheOCR held that, because the school madediligent efforts to recruit interpreters,had a legitimate non-discriminatory reason for its failure to hire adequatesign language interpreters to cover all theclassroom needs of hearing-impairedstudents, and offered a variety ofalternatives when signers were unavailable,the school was not in violation ofSection 504.215

Just as schools may not place the burdenof paying for interpreter services on thestudent, schools may not require studentsto locate requested auxiliary aids. In onecase, the OCR found that it was notproper for the school to require the student to locate another student for thepurpose of note-taking. In addition, theOCR found that offering to provide thestudent with note paper was not aneffective means of making orally providedinformation available to the student, andthe school was found to be noncompliantwith Section 504 regulations.216 However,once a program to provide accommoda-tions and academic adjustments is put in

place by the school, the school mayrequire students to follow establishedprocedures and policies to obtain auxiliary aids. If the student does notreceive auxiliary aids due to the student’sfailure to properly follow the establishedprocedures, the school will not be foundin violation of Section 504.217

Schools may not charge a fee to studentsfor providing auxiliary aids in the regularprogram.218 However, a school maycharge fees if it provides a special programfor students with disabilities.219 In Halaszv. University of New England, the courtheld that where a university decides tooffer a program for students with disabilities which is not a reasonableaccommodation, but a separate programfor disabled individuals, Section 504does not prohibit the university fromcharging a fee for the special program.220

The requirement to provide auxiliaryaids to students with disabilities does notextend to personal services such astutors, counselors, and learning disabilitiesspecialists.221 However, the OCR has heldthat a University may not discriminateagainst students on the basis of disabilityin the provision of services, includingtutoring services.222

Practice Tip: Multiple mediums of text,interpreters, and classroom equipment areamong the forms of auxiliary aids an institution is required to provide to studentswith disabilities. Institutions are notrequired to provide services of a personalnature to a student. The institution mayestablish policies and procedures concerninghow to request and obtain auxiliary aids,but may not charge the student for providingaids to them.

F. Academic Deference in ProvidingAccommodations

The courts tend to defer to the decisionsof college and university administratorsregarding whether a student’s requestedaccommodations are reasonable. Thecourt first addressed the issue of whether

an institution should be granted defer-ence in academic decisions made in thecontext of an ADA or Rehabilitation claimin Zuckle v. Regents of the University ofCalifornia.223 In this case, a medical studentwas dismissed for “failing to meet the academic standards of the school.”224 Thestudent began experiencing academic difficulty during her first quarter ofmedical school. Due to her substandardgrades, she was placed on academic probation, required to retake severalcourses, and given additional time tocomplete her pre-clinical coursework.225

However, the student continued to struggleacademically. In the fall of the student’ssecond year, the student was tested for alearning disability, and it was discoveredthat it took the student longer than theaverage person to read and comprehendinformation.226 Upon learning of the student’s disability, the school offered thestudent additional accommodations.


213Wentworth Institute of Technology (MA), 5 Nat’lDisab. L. Rep. (LRP Publications) 190 (Dec. 20, 1993).

214University of California, Davis, 4 Nat’l Disab. L.Rep (LRP Publications) 108 (Apr. 16, 1993).

215Id.

216Jefferson Community College, 3 Nat’l Disab. L.Rep. (LPR Publications) 166 (Aug. 21, 1992).

217See New York University, 3 Nat’l Disab. L. Rep. (LRPPublications) 381 (Dec. 10, 1992); Northern ArizonaUniv., 5 Nat’l Disab. L. Rep. (LRP Publications) 284(Jan. 24, 1994) (finding no violation of Section 504where student did not schedule meeting with disabledstudent services staff, did not request auxiliary aidsuntil mid semester, and failed to obtain necessaryinformation and complete relevant forms).

218University of Arizona, 2 Nat’l Disabl. L. Rep.(LPR Publications) 285 (Oct. 18, 1991).

219Halasz v. University of New England, 816 F. Supp.37 (D. Me. 1993).

220Id. at 45.22134 C.F.R. 104.44(d)(2).

222Oregon State Univ., 5 Nat’l Disab. L. Rep. (LRPPublications) 19 (Sept. 29, 1993); Hastings Collegeof Law (CA), 4 Nat’l Disab. L. Rep. (LRPPublications) 226 (May 27, 1993).

223166 F. 3d 1041 (9th Cir. 1999).224Id. at 1044.225Id. at 1043.226Id.

The student completed her courserequirements and began her clinicalclerkships. During her first clerkship, thestudent was allowed to take time off tostudy for the United States MedicalLicensing Examination, which she hadpreviously failed. She passed the examination on her second attempt, butfailed her clerkship and was automaticallyplaced on academic probation. Afterappearing before the school’s evaluationcommittee, the institution’s promotionsboard voted to dismiss the student dueto her inability to meet the institution’sacademic standards.227 The student subsequently filed a claim against theinstitution for violating the ADA andSection 504.

The court first considered the issue ofwhether academic decisions made by theschool in the context of the ADA orSection 504 should be given deference.The court held that while the determina-tion of whether an institution has complied with the ADA and Section 504regulations is ultimately that of thecourt, deference will be given to theschool’s determination regardingwhether a student is otherwise qualifiedacademically. Once the institution showsthat it took legitimate measures to providereasonable accommodations, the courtwill give deference to the institution’sacademic decisions.228 Ultimately, thecourt concluded that the student failedto demonstrate that she could meet theeligibility requirements of the medicalschool, with or without reasonableaccommodation, i.e., she was not “otherwise qualified” to remain in theprogram.229

Practice Tip: While administrative decisions regarding the granting or denialof accommodations will often be given deference by the courts, courts look closelyat the institutional policies and the processused to make such decisions. It is imperativethat an effective monitoring system beadopted to ensure that institutional policiesare properly followed and that any policyviolations are dealt with promptly. Toooften, institutions rely on students to alertadministrators to problems with theircompliance systems. All compliance procedures should include monitoring provisions that regularly assess the effective-ness of the system and ensure that modifications are made as needed.

G. Accommodating Student Disabilitiesof Which the Institution is Unaware

It is a well-settled legal principle that aninstitution’s obligation to provideaccommodations is not triggered untilthe disabled individual makes his or herneeds known. In addition, institutionsare only required to provide accommo-dations prospectively, not retroactively.However, neither Section 504 nor theADA specifies what type of notificationis necessary to trigger an institution’sobligation to provide accommodationsor what constitutes awareness of a student’sdisability.230

In Nathanson v. Medical College ofPennsylvania,231 the court addressed theissue of when and whether a studentmade the medical college aware of herdisability, whether the student hadrequested accommodations, and whetherthe student’s requests were sufficientlyspecific to obligate the college to respond.In Nathanson, a medical studentinformed school officials, during herapplication interview, of injuries she hadsustained as a result of an automobileaccident. The student met with schooladministrators to discuss her difficulties,and, according to the student, to requestappropriate seating.232 The school

administrator maintained that the studentdid not ask for any type of accommodationat this meeting. According to the administrator, the student explained that she was having physical difficultiesand requested a leave of absence. At theend of the leave period, the student again met with school officials to requestaccommodations for her disability.According to the student, the schoolfailed to respond and she subsequentlywithdrew.

The court addressed the issues of: (1)whether the school had reason to knowthe student was disabled, and (2)whether the school provided reasonableaccommodations for the student’s disability. According to the court, inorder for the school to be liable underSection 504, the school must know or bereasonably expected to know of the student’s disability. The court found thatthere were disputed facts as to whetherand when the student made a specificrequest for accommodations. In addressingwhether the school provided reasonableaccommodations to the student, thecourt noted that what is considered areasonable accommodation must bedecided on a case-by-case basis.233 Thecourt further noted that other courts had concluded that there existed an affirmative duty to investigate an individual’s needs to determine whatspecial services would be needed and totake affirmative steps to accommodatedisabled individuals.234



227Id. at 1044.228Id. at 1048.229Id. at 1051.

230Nathanson v. Medical College of PA, 926 F. 2d1368, 1381 (3rd Cir. 1991).

231926 F. 2d 1368 (3rd Cir. 1991).232Id. at 1372.233Id. at 1385.234Id.


The OCR has explicitly found that pursuantto “Section 504 a student with a disabilitywho is in need of an academic adjustmentis obligated to notify the postsecondaryinstitution that he has a disability, identifythe need for academic adjustments, andprovide, upon request, documentation ofthe disability and the requested academicadjustments. Once a student has notified apostsecondary institution that he or sheneeds certain academic adjustments due toa disability, the postsecondary institutionhas an obligation to engage the student inan interactive process to determine theappropriate academic adjustments to beprovided.”235

With respect to the actual request, there areno specific words a student must use torequest an accommodation, nor is there aparticular time in which the request mustbe made. An institution may not requirestudents to request accommodations by aspecific date and refuse to accommodatestudents thereafter.236 The OCR has provided guidance on the issue of the timeand manner of the student’s request instating that “[t]here is no Section 504requirement that such notification must begiven in writing. There is also no Section504 requirement that the notification begiven at the beginning of the academicyear or by a certain date during the year.However, the notification must be madewithin a period of time which allows the[institution] a reasonable opportunity toevaluate the request and offer necessaryadjustments.”237

Practice Tip: The courts and the OCRhave made it clear that an institution isnot obligated to act unless the school hasactual notice of a student’s disability. Oncethe institution has notice of the student’sdisability, the school has an affirmativeduty to make reasonable accommodations.What accommodations are requiredshould be assessed on a case-by-case basis.Medical schools must maintain solid documentation of any and all accommo-dation discussions held with students.

V. AccommodationProcessA. Evaluation of Documentation

While institutions may establish policiesand guidelines concerning documenta-tion submitted by students requestingaccommodations, these policies andguidelines must meet certain regulatorystandards. ADA regulations require thatcriteria used to determine the sufficiencyof documentation not “screen out ortend to screen out an individual with adisability. . . unless such criteria can beshown to be necessary.”238 The need forcurrent documentation will often be dictated by the nature of the disability atissue. For example, a three-year currencyrule for students with specific learningdisabilities where scientific data do notsupport the need for reevaluation everythree years may be considered an unnecessary criterion for supportingdocumentation.239 However, where currentdocumentation is needed to make a fairassessment of the severity of the student’sdisability and the type of accommodationsthat would be appropriate, it is notunreasonable to ask the student to provide current documentation.240

In addition, the courts and the OCRhave held that review, analysis, andassessment of the submitted documenta-tion must be conducted by individualswho are knowledgeable and/or profes-sional in the field.241 In D’Amico v. NewYork State Board of Medical Examiners,242

the court disagreed with the denial of astudent’s requested accommodationbecause there was no evidence to disputethe medical documentation submitted bythe student.243 The court found the individuals who rejected the student’srequested accommodation had “noknowledge of the disability or disease, noexpertise in its treatment, and no abilityto make determinations about the physical capability of one afflicted with

the disability or disease.”244 In anothercase investigated by the OCR, it foundthat a university discriminated against astudent with a disability in denying thestudent’s application for readmission, inpart because members of the readmis-sion committee that denied the student’spetition had received no training prior tositting on the committee and that nocommittee members had consulted anyexperts in the field of learning disabilitiesor contacted any representatives of alearning strategies clinic where the student had received services.245

Overall, the institution’s evaluation ofthe student’s documentation must befundamentally fair. Accurate informationregarding documentation standards andprocedures must be communicated tostudents in a timely manner. An institutionmay request additional documentationfrom the student upon a finding that thestudent’s original documentation isinsufficient. The request for additionalinformation must be reasonable under


235University of Cincinnati, 29 Nat’l Disab. L. Rep.(LRP Publications) 77 (June 4, 2004).

236See Nathanson at 1381-83.

237California State University, 4 Nat’l Disab. L. Rep.(LRP Publications) 359 (July 9, 1993).

23828 C.F.R. § 35.130(b)(8).

239Guckenberger v. Boston Univ., 957 F. Supp. 306(D. Mass. 1997).

240See Northwestern College, 6 Nat’l Disab. L. Rep.261 (LPR Publications)(Jan. 5, 1995) (finding fouryear old psychological evaluation report of a stu-dent’s disability not current).

241Whether accommodation decisions are made byan individual or by committee, the institutionshould rely on appropriate expertise in its analysisof data. It is not appropriate for a faculty memberto diagnose a student based on the faculty’s mem-ber observance of the student’s behavior.

242813 F. Supp 217 (W.D.N.Y. 1993).243Id. at 222.244Id. at 223.

245DePaul University, 4 Nat’l Disab. L. Rep. 157(LPR Publications) (May18, 1993).

the circumstances.246 The institutionmust avoid asking for additional documentation as a means of avoidingits statutory obligation to provide reasonable accommodations. However, ifthe student’s documentation raises questions regarding the documentation’slegitimacy, validity, conclusiveness, orrelevancy, the institution may rightfullychallenge the student’s documentation.

An institution may choose to providetemporary accommodations while thestudent gathers the requested documentation.247 Providing temporaryaccommodations does not create an obligation to continue providing theaccommodations should the student failto submit appropriate documentation.However, if the institution chooses toprovide temporary accommodations tothe student, the institution should clearlycommunicate to the student what specificdocumentation is required, the timeframe for providing the required docu-mentation, and the date the temporaryaccommodations will cease if sufficientdocumentation is not provided.

Practice Tip: It is the student’s obligationto bear the cost of additional testingand/or assessment if such testing isrequired in order to assess the student’simpairment. However, it may be in theinstitution’s best interest to have the student tested by experts of its choosing.Although, in this situation, the institutionmust bear the cost of additional testing,the institution is in a better position toevaluate the validity and accuracy of theresults when the testing is conducted bypersons it knows.

B. Cost and Implementation ofAccommodations

An institution must pay for the costs ofproviding reasonable accommodationsto students with disabilities unless doingso would place an “undue burden” onthe institution. In determining whetheran action would result in an undue

burden, the institution may consider thenature and cost of the accommodation.Whether a particular accommodationwill impose an undue burden due to costis evaluated in light of an institution’soverall financial resources. Moreover, thedetermination of what constitutes anundue burden is based upon the net costof the accommodation, taking into consideration the availability of tax credits and deductions, as well as outsidefunding.248 If an institution can show thatthe cost of an accommodation wouldimpose an undue burden, the institutionwould still be required to provide theaccommodation if the funding were tobe available from another source, e.g., astate vocational rehabilitation agency.249

Practice Tip: When evaluating whetheran accommodation will place an “undueburden” on a medical school, a court willconsider the resources of the entire universityor university system in determining thelevel of hardship. This creates such a largeresource base that it is highly unlikely thata medical school would be able to use the“undue burden” rationale.

In some cases, a state vocational rehabili-tation agency may be obligated to provideassistance for students with disabilities inpostsecondary educational programs.250

However, to avoid imposing a burden orthe possibility of a charge on the student,a postsecondary educational institutionmay not require students to apply tostate vocational rehabilitation agenciesfor assistance.251 Moreover, a universitymay not deny requests for accommoda-tions from students with disabilitiesbased on the students’ ability to pay ortheir enrollment in specific programs. InUnited States v. Board of Trustees forUniversity of Alabama,252 the court heldthat requiring hearing-impaired studentsto show that they lacked the financialmeans to pay for their own interpreters(or other auxiliary aids) violated Section504. The court held that the University isrequired to be the primary provider of

auxiliary aids for students, faculty, or staffwith disabilities. The implication of thisdecision is that universities cannot requirestudents or employees with disabilities torequest technical assistance from vocational rehabilitation agencies. TheUniversity must contact the appropriateagencies itself for assistance in providingaccommodations for its students.253



246Argen v. New York State Board of Law Examiners,860 F. Supp. 84 (W.D.N.Y. 1994).

247Dubois v. Alderson-Broaddus College, 950 F. Supp.754 (N.D.W.Va 1997).

24829 C.F.R. § 1630.2(p).249Id.

250See, e.g., Schornstein v. New Jersey Div. ofVocational Rehab. Serv., 519 F.Supp. 773 (D.N.J.1981), aff 'd, 688 F.2d 824 (3d Cir.1982); Jones v.Illinois Dept. of Rehab. Serv., 504 F.Supp. 1244 (N.D.Ill. 1981), aff 'd, 689 F.2d 724 (7th Cir.1982) (holding that state departments of rehabilitationwere required by Title I of the Rehabilitation Act topay for interpreters for deaf students); see also Firth v. Indiana Dept. of Human Serv., slip op. no.49CO1-9005-MI-1583 (Cir. Ct. Marion CountyInd., June 4, 1991), aff 'd in part and rev'd andremanded in part, 590 N.E.2d 154 (Ind. Ct. App.1992). In Firth, the district court held that the StateDepartment of Vocational Rehabilitation wasrequired under Title I of the Rehabilitation Act toprovide an interpreter for a deaf law student. Onappeal, the trial court's order that the student wasentitled to vocational rehabilitation services wasaffirmed, but the Indiana Court of Appeals heldthat the case should be remanded to the departmentof vocational rehabilitation to determine exactlywhich services the student should be provided.

251See Bonnie P. Tucker, Application of the AmericansWith Disabilities Act (ADA) and Section 504 toColleges and Universities: An Overview andDiscussion of Special Issues Relating to Students,23 J.C. & U.L. 1, 26 (1996).

252908 F.2d 740 (11th Cir.1990).

253See also State Univ. of N.Y., Complaint No.02-92-2106 (OCR Region II, 1993) (OCR held thata university violated Section 504 by requiring a student with learning disabilities to contact servicesand request provision of books on tape after theuniversity provided the student with the titles ofthe books and the names of service organizations);Jefferson Community College (KY), 3 Nat'l Disab.L. Rep. (LRP Publications) ¶ 166 (OCR Aug. 21,1992) (college violated Section 504 by requiring ahearing-impaired student to locate other studentsto take notes for him; the college improperly transferred the responsibility for providing auxiliaryaids to the student); Highline Community College(WA), 3 Nat'l Disab. L. Rep. (LRP Publications) ¶151 (OCR Aug. 10, 1992) (college improperly placedthe burden of identifying note takers on studentswith disabilities rather than on instructors).


C. Due Process for Denied Requests

The establishment of detailed writtenguidelines for the review of all accom-modation requests will aid in ensuringthat due process requirements are metand that students are treated fairly. Aninstitution’s written guidelines shouldinclude information on the availability ofaccommodations, procedures forrequesting accommodations, and thetypes of accommodations available.These guidelines should be available tostudents. Forms requesting accommoda-tions should be returned to a namedadministrator and reviewed in a timelymanner. Due to the substantial variabili-ty among students with the same type ofdisability, each accommodation requestmust be reviewed on an individual case-by-case basis, applying previouslydeveloped written evaluation criteria.This recommendation is consistent withthe “totality of the circumstances” standardoften used by courts when deciding acase. Use of a case-by-case evaluationprocedure is especially important incomplex cases where careful considerationis required. The student should be notified,in writing, of the school’s decision to grantor deny the request for accommodation.

Practice Tip: As litigation concerning institutional compliance with the ADA andSection 504 continues to increase, it isimperative that institutions maintaincomplete and accurate records regardingaccommodation provisions and denials.An institution can protect itself in litigationby the availability of documentation establishing that institutional proceduresand policies reflect the current state of thelaw and were properly followed and that theaction was properly reviewed and justified.

D. Maintenance of Confidentiality

The confidentiality of student recordsincluding disability documentation isprotected by a number of sources. Boththe ADA and Section 504 prohibit theunlawful disclosure and use of informationconcerning an individual’s disability.254 Inaddition, a student has a constitutionalright to privacy in his or her medicalrecords.255 In order to preserve the confidentiality of student medical anddisability-related records, such recordsshould be kept separate from the student’sother academic records.

Academic institutions must also complywith the Family Educational Rights andPrivacy Act (“FERPA”),256 which forbidsthe disclosure of personally identifiableinformation contained in educationalrecords without a student’s prior writtenconsent. “Personally identifiable information” includes a student’s name,personal character traits, and any otherinformation that would make the student’s identity easily traceable, such asinformation regarding a student’s disability. FERPA allows the disclosure ofinformation without a student’s consentwhen “the disclosure is to other schoolofficials, including teachers, within theagency or institution whom the agencyor institution has determined to havelegitimate educational interests.”257 Thecourts have repeatedly recognized theneed for institutions to internally share astudent’s medical information for legitimate educational purposes.Legitimate disclosures include disclosuresfor the purposes of (1) determiningwhether a student is otherwise qualifiedfor the program, (2) assessing the student’sdocumentation, and (3) determiningwhat accommodations are reasonable.

An institution may not disclose a student’spersonally identifiable information,including information related to a student’sdisability, to external entities. If an externalentity is involved in the assessment oraccommodation process of a student, thestudent’s written consent must be obtainedprior to the disclosure of any informationto the external entity. If the student refusesto consent, and this refusal prevents theinstitution from determining whether astudent is disabled or what acommodationsare necessary, the institution will not beheld liable for failing to properly accommodate the student. In other words,a student may not request an accommo-dation and then deny the institution theability to share information with otherinstitutions or agencies involved in thedetermination.258

Student medical records and disabilitydocumentation maintained by an educational institution are generally considered educational records.Educational records are exempt from the Health Insurance Portability andAccountability Act’s (“HIPAA”)259

Privacy Rule.


25442 U.S.C. § 12112(d)(3) (Supp. II); 29 C.F.R. §1630.14(b)(2), (c)(1) (2004).

255Whalen v. Roe, 429 U.S. 589 (1977).

25620 U.S.C.A. § 1232g (2004). FERPA only appliesto “educational records.” “Educational records aredefined by FERPA as records directly related to astudent and maintained by an educational institu-tion or by a party acting for the agency or institu-tion. 34 C.F.R. 99.3(a). Medical records used inconnection with the treatment of the student arenot considered “educational records” and, there-fore, are not subject to FERPA. 34 C.F.R.99.3(b)(4)(ii). However, medical records used forremedial education activities (which in most caseswould include the evaluation of student documen-tation) are considered “educational records” and,therefore, subject to FERPA. Even if a student’smedical documentation were found exempt fromFERPA, if information from the student’s medicaldocumentation were incorporated in a subsequentinstitutional record, this record would be consid-ered an “educational record” subject to FERPA.

25734 C.F.R. 99.31(a).

258Pell v. Trustee of Columbia University, 1998 WL19989 (S.D.N.Y.)

259Pub. L. No. 104-191.

Practice Tip: Student disability-relatedrecords should be kept separate from academic records and should be treated asconfidential. Access to student-disabilityrelated information should be limited todesignated institutional personnel.Institutional personnel may share disability-related information with otherinstitutional personnel on a need-to-knowbasis for the purpose of assessing a student’s documentation and assuringappropriate accommodations. Disability-related information shared with externalentities requires the student’s written consent prior to release.

VI. ConclusionAs medical schools grapple with thechallenge of maintaining an increasinglydiverse student population, the segmentof the student community with disabilitiesshould be given careful consideration.The ADA, Section 504, and correspondingregulations create a framework forensuring that students with disabilitiesare fairly treated. However, despitedetailed regulations and a growing bodyof case law, analysis of disability issuesremains complex. Institutions mustclosely evaluate the needs of applicantsand students with disabilities and balancethose needs against what the medicalschool is able to provide within the academic environment.

The area of disability law is an importantarea of regulatory compliance that noinstitution can afford to ignore. An institution that fails to properly addressthese issues can face severe consequences.Penalties for violations of Section 504and the ADA include injunctive relief,damages, attorney’s fees, and the withdrawal of federal funding. The areaof disability law will continue to evolve;as this occurs, medical schools shouldmaintain as their objective the imple-mentation of fair policies and practicesthat enable applicants and students withdisabilities to benefit from the schools’programs and services, without fundamentally altering or compromisingthe medical education process. Theadage that “an ounce of prevention isworth a pound of cure” is perhapsnowhere more true than within the areaof disability law – where the propercourse of action taken in the first placecan save a medical school considerableexpense – not only in financial terms,but also in terms of human resourcesand negative publicity.




Institutional “Must Do’s”4 Evaluate policies and procedures.

Review institutional policies on a regularbasis to ensure that they are in compliancewith federal statutes and regulations,reflect advances in adaptive and assistivetechnology, and achieve the maximumdegree of compliance under the circum-stances. Make sure policies are realisticand “livable,” and then consistently adhereto those policies as situations arise.

Be conscious of the timing of policyrevisions and implementation and bewary of implementing policies that single out or address a specific studentafter a student has raised a disability-related issue.

4 Develop/refine technical standardsand essential program requirements.

Develop technical standards for admissionto and graduation from the educationalprogram with great care and consideration.Include those skills and abilities that areessential to the completion of the educational program. Skills and abilitiesrequired for admission should be tieddirectly to those required for graduation.Any skill or ability required for admissionshould be tied directly to what is taughtand assessed in the curriculum or itshould be removed from the technicalstandards. Consider including “the abilityto work as a member of the healthcareteam” and “attendance” as essential program requirements.

Where a required course is an essential element of the overall program, the schoolis not required to waive the requirement asan accommodation. Prospectively analyzewhich course requirements are essential toa student’s medical education and limit theschool’s requirements to those identified

courses. Other course offerings should betreated as electives. With respect to therequirements of individual courses,schools should consider which elementsare essential.

4 Review application forms and inter-view questions.

Never ask an applicant about a past“handicap” or “disability.” Broad questions about past mental health history are unlikely to be allowed outsideof a counseling or similar educationalprogram. However, an institution mayask an applicant whether he or she isable to meet the program’s technicalstandards with or without reasonableaccommodations.

A student’s disability is irrelevant indetermining whether a student should bereadmitted to a program. An institutionmay deny readmission to a former stu-dent with a disability if the student wasdismissed based on the student’s per-formance, behavior, or academic record.However, the institution should be care-ful to not base its decision not to readmita former student with a disability onstereotypes or nonfactual information.

4 Train employees and inform students.

Provide training, on an ongoing basis, toacademic administrators, faculty, andstaff regarding students’ rights and eachparty’s responsibilities with respect todisability accommodation. The institution’semployees must understand their role inassisting the institution in meeting itscompliance obligations. In addition,students should be informed of theirrights and responsibilities and the institution’s procedures regarding disability accommodations.

4 Be careful when determining that animpairment is a disability.

Evaluate each student’s case on an individual basis, relying on recent diagnostics and evaluations. Avoid overgeneralizations, broad categorizations,or relying on past accommodationsmade by other educational programs.Remember that merely having animpairment does not result in a studentbeing disabled for purposes of the ADAor Section 504.

More than a mere risk of injury isrequired before an institution may disqualify an applicant or student with adisability from participation in a program.Any denial of admission or decision todismiss based on the risk of future injury to the individual or others mustbe examined with special attention to the requirements of the ADA andSection 504.

4 Monitor institutional compliance.

It is imperative that an effective monitoring system be adopted to ensurethat institutional policies are properlyfollowed and that any policy violationsare dealt with promptly. Too often,institutions rely on students to alertadministrators to problems with theircompliance systems. All compliance procedures should include monitoringprovisions that regularly assess the effectiveness of the system and ensurethat modifications are made as needed.

4 Maintain records.

Protect the institution by thorough doc-umentation that institutional proceduresand policies reflect the current state ofthe law and were properly followed, andthat the action was properly reviewedand justified.


medical students with disabilities

Documents