©2004 Nancy Mott
Students with disabilities are a rapidly growing minority on university campuses. In attempts to accommodate these students in the classroom, faculty often face the ethical dilemma of how to balance the rights of students with learning disabilities with the academic integrity of a course of study. In support of providing reasonable academic accommodations for qualified students, I will provide a brief overview of the law, a description of learning disabilities, and a discussion of the organizational and ethical concerns in evaluating what is appropriate in accommodating a student.
When President George H. W. Bush signed the Americans with Disabilities Act (ADA) in July 1990, individuals on both sides of the issue considered it the beginning of a new era. Every person with a disability would enter a world of equality and independence. The ADA was designed to extend protection to people working in the private sector and those seeking access to public accommodations, including institutions receiving federal financial assistance. It provides as follows:
No otherwise qualified individual with a disability...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Both Section 504 of the Rehabilitation Act of 1973 and the ADA make it unlawful for post-secondary institutions to discriminate against students on the basis of disability. In order to be entitled to this protection, a student or prospective student must establish that he or she is a "qualified individual with a disability." To meet this requirement, an individual must show both that a disability exists and that he or she can meet the requirements of the program, with or without "reasonable accommodation." An individual has a disability if he or she has a physical or mental impairment that substantially limits one or more of the major life activities of such individual; has a record of such an impairment, or is regarded as having such an impairment.
Fourteen years after passage of what some consider the most important civil rights law in the past twenty-five years; much of the law remains undefined. As a result of the broad definition of a disability, in many cases brought under the act the question of whether there is a disability and if the ADA applies continues to cause dispute. Several recent Supreme Court cases have continued to struggle with interpreting "major life activities" or the meaning of "substantially limits" when referring to these activities.
In Gonzales v. National Board of Medical Examiners, (2000), Michael Gonzales sued the National Board to force it to give him extra time to take medical boards. The 6th U.S. Circuit Court of Appeals affirmed a lower court's decision denying the student's petition for extra time to take the test. The lower court had ruled that Gonzales didn't have a disability under the ADA because he didn't have a documented history of a learning disability. The court ruled that he therefore, was not disabled in the "major life activity" of working.
In Bartlett v. New York State Board of Law Examiners, (2002), Marilyn Bartlett, a diagnosed dyslexic, had been denied accommodations by the board. Bartlett's eight year fight included an appeal to the U.S. Supreme Court and two appearances before the 2nd U.S. Circuit Court of Appeals. The ruling came in February, 2002, and found that Bartlett "is substantially limited in the major life activity of reading when compared to most people." Judge Sonia Sotomayor stated in her opinion that
"This court is not unsympathetic to the Board's desire to have a clear standard by which to determine whether an applicant claiming to be learning disabled is entitled to accommodations on the bar exam under the ADA and Section 504. ... It is clear to me, however, that such a standard must take into consideration an applicant's evaluation report in toto, rather than focusing exclusively on psychometric test scores."
These recent cases highlight that in order to access the protections and services available as a result of the ADA and Section 504 of the Rehabilitation Act on the basis of a disability, postsecondary students must submit documentation.
Without documentation being addressed in the regulations, a wide variety of information has been presented to postsecondary institutions over the years. As a result, more students are presenting what the editors of Disability Compliance for Higher Education (1996) described as "skimpy, useless, incomplete, or outdated information". In research conducted by McGuire, Madaus, Litt, and Ramirez (1995) 415 cases of documentation submitted by students over a 5-year period was examined. Major flaws were found in the type and quality of the documentation submitted, including inadequacy of the assessments and reports and the use of technically inappropriate instruments with an adult population. As a result of this study, the authors offered guidelines and recommendations to postsecondary institutions in dealing with documentation issues. In 1997 the Association of Higher Education and Disability (AHEAD) published guidelines for documenting a learning disability. AHEAD has published additional guidelines in the last two years for documenting Attention Deficit Disability and for Psychological Disabilities.
Despite the publication of all these guidelines, the issue of documentation remains subject to controversy. Postsecondary service providers, such as myself, have the responsibility of reviewing a student's documentation to determine if they have the right to protection from discrimination under the ADA and to assure equal access. Guidelines are helpful, but you still need to be able to interpret the information to determine appropriate accommodations. Of equal importance to the documentation are the policies and procedures for students to access accommodations for their disability. Institutions have the right to adopt policies and procedures to ensure that accommodations are properly used, but they must be in keeping with the practice in the field. Organizationally these types of mandates from outside the institution can present negative feelings and even a concern that it is a potential threat to academic freedom. This type of forced bureaucratic control, even though it is coming from outside the institution, can disrupt the culture of a collegial environment. (Birnbaum, 1988)
Students with disabilities are a rapidly growing minority on university campuses. Nationally, one in eleven college freshmen reports having a disability, up from one in 33 two decades ago, according to a report by the American Council on Education. The report "College Freshmen with Disabilities: A Biennial Statistical Profile," was based on a national survey of college freshmen conducted by the Cooperative Institutional Research Program.
The report found that 9 percent of all full-time, first-time freshmen enrolling in 1998 reported having at least one disability, compared to 3 percent in 1978. Forty one percent (41%) of those reporting disabilities said they had a learning disability, as opposed to fifteen percent (15%) in 1988. As a result of the Americans with Disabilities Act, physical accommodations such as ramps and door handles have been installed, but many supports for students with "hidden" disabilities have not been fully implemented on campuses. With this great influx of students with learning disabilities into the postsecondary setting, it becomes even more important for institutions to respond appropriately to their needs.
The dilemma remains: just what is an appropriate accommodation in the classroom? Do faculty need to provide all accommodations that are requested by students with learning disabilities? Do the civil rights of the student with the disability supercede the discretion of the faculty member in the classroom? Where do you draw the line?
This is a particularly difficult problem when dealing with learning disabilities. Since learning disabilities affect cognitive areas of functioning they are often referred to as "invisible disabilities". Reasonable accommodations don't include the need for a ramp for a wheelchair or an interpreter for a deaf student. When working with students with learning disabilities, the accommodations will often involve academic adjustments in faculty teaching and/or how they evaluate the learning in the course. Reasonable accommodations may include the following: providing a notetaker for class lectures, allowing a tape recorder in lectures, extended time for tests and assignments, use of spell-check or grammar check, tests in alternate formats including oral rather than a written exam.
There are as many faculty responses to these requests as there are types of disabilities. Some faculty will respond to the recommendations of the disability service provider on campus with total acceptance, without question or comment. Other faculty may respond in complete opposition to the request that they perceive as unfair to their other students. Birnbaum (1988) stated that "...exercise of power may cause alienation, and responses by faculty and others to various forms of power in institutions of higher education may pose problems for their organization and administration." (p. 13) Jonathan Katz, a physics professor at Washington University, has very strong, personal views on accommodations. "Universities are institutions of higher learning. Admission and success require learning abilities well above average. Anyone whose ability to learn is so impaired as to amount to a disability, such as the dyslexic who can barely read, cannot do university work and is unlikely to attend (no more than a paraplegic can become a firemen, whose job involves climbing ladders)." (Disability Compliance for Higher Education, 2002) The majority of faculty responses will fall within these two extremes, but with ethical concerns about how to balance the rights of students with learning disabilities with the academic integrity of their course. (Leyser, 1989; Matthews, Anderson, & Skolnick, 1987; McCarthy & Campbell, 1993; Nelson, Dodd, & Smith, 1990; Nelson, Smith, & Dodd, 1991; Satcher, 1992).
In a faculty survey conducted by Nelson, Dodd, & Smith (1990), faculty were willing to accommodate students with learning disabilities "only if they could be assured that it would not lower academic standards" (p. 188). Although most faculty now understand that they have an obligation to provide accommodations, ethical questions remain, particularly in determining what is sufficient in accommodating. In addition to understanding the law as described earlier, it is also critical to understand learning disabilities. Some misconceptions about the disability may add concern to this discussion of ethical issues.
A learning disability is a generic term for a heterogeneous group of disorders that affect how individuals receive, encode, store, and retrieve information. Learning disabilities are found in individuals of average and above average intelligence but due to a presumed central nervous system disorder, these individuals have significant difficulty in a variety of academic areas. The areas of impact could include reading, spelling, written expression, oral language, and mathematics. Students with learning disabilities may also have difficulty with organization, time management, and attention. A life-long condition, a learning disability may manifest itself differently over time depending on the context and related demands (Learning Disability Association of America, 1990; National Joint Committee on Learning Disabilities, 1985). Upon entering college, the increased academic demands will impact the student with a learning disability. "Often college-bound students with learning disabilities fail to understand that they will face a different set of demands within a postsecondary setting. They soon become overwhelmed by the amount of assigned material as well as the fast pace of instruction. Many lack the skills and strategies that are necessary for managing and self-monitoring their learning in a variety of contexts." (McGuire, Hall, and Litt, 1991)
"The differences between secondary and post-secondary education also create problems for students with disabilities. Less student teacher contact and larger class sizes occur in the university setting. College courses usually require long-range projects and infrequent evaluations, in contrast to the short-term assignments and frequent grading experienced in high school. College students have more unstructured time to manage and often lose their familiar support network of family and friends. While all students in college experience these new learning conditions, students with disabilities are at a greater risk for failure because of their inherent learning difficulties." (Lerner, 1997)
Depending on the individual documentation profile of the student, the deficit in cognitive processing may be evident in only one academic area, such as math or foreign language, or it may impact an area such as reading or written language that will have an impact on classroom performance across many areas of study. (Scott, 1997)
Given these characteristics of learning disabilities, some ethical concerns of faculty may be based on inaccurate information. For example, when a faculty member's comment "I am trained to teach bright students, not handicapped ones" (Minner & Prater, 1984) the faculty member reveals the inaccuracy that students with learning disabilities are not bright and not able to handle college level work. It is true however, that students with learning disabilities present a range of abilities and levels of intelligence, not unlike all college students. When provided the appropriate academic accommodations, students with learning disabilities have succeeded at such competitive academic environments as Harvard, Brown, Yale and Stanford. An example of this success would be Jonathan Mooney, author of the book Learning Outside the Lines. He recalls "chilling out with the janitor" when he was a child because he was thrown out of class so many times, how he could not read until he was 12, and dropped out of school in the sixth grade. He speaks of counselors telling him he would only flip burgers in life, and admitted that he could only spell at the level of a third-grader, read at a seventh grade level, and has the attention span of a gnat. Jonathan Mooney has learning differences, yet is a graduate of Brown University, a finalist for a Rhodes Scholarship, and is an executive director of Project Eye-to-Eye, a nationally acclaimed mentoring program for children with LD/ADHD. Jonathan's success strategy was to let go of what he couldn't do, and gaining empowerment from knowing what he could do. He used voice-activated software, books on tape, and was tested in a quiet room. Brown University gave him oral exams and time extensions on tests. These accommodations for a student like Jonathan with a learning difference are the equivalent of a ramp for a student in a wheelchair.
Under certain circumstances, the failure to provide a reasonable accommodation to a student with a disability is a violation of law, putting in jeopardy, among other things, an institution's receipt of federal financial assistance. (Grossman, 2001) Misunderstandings about providing reasonable accommodations can add to a faculty member's sense of suspicion and fear. Claybaugh & Rozycki (1990) identified policies related to equal educational opportunity as a basic internal organizational conflict of following policy vs. sensitivity to individual differences. In addition to the concern that accommodating will lower academic standards, it can also add to the concern that the faculty member feels he is contributing to a generation of unqualified professionals.
Properly understood and implemented, disability laws will not lead to those feared outcomes. Students with disabilities are required to meet the "essential" "academic" and "technical" standards of the college or university, with or without reasonable accommodation. The term "essential" ensures that colleges do not need to "fundamentally alter" their programs of instruction. Federal courts have upheld that students meet "academic" standards, such as a certain GPA, and "technical" requirements. However, a student with a disability may be allowed longer to complete a degree program. If colleges distinguish between what is essential and what is tangential, the courts have used Section 504 and the ADA to create equal educational opportunity for the disability community without lowering academic standards. (Grossman, 2001)
A college may deny a student's accommodation request for several reasons. Requests can be denied if it represents a fundamental alteration in the nature of an academic program, the college can offer a less costly, but effective alternative to an accommodation proposed by a student, an institution is not expected to incur an economic or administrative burden in accommodating students with disabilities, and a college does not need to incur the expense for a personal assistant for the student. The courts and the Office of Civil Rights allow colleges considerable deference in determining which accommodations will or will not fundamentally alter the nature of their program. They will be looking for well-developed procedures for considering and implementing requests for accommodations. They want to see an interactive process in determining the appropriate accommodations. This includes faculty. Accommodating students with learning disabilities is not intended to be a rote process of student notice and faculty acceptance. "Whether or not an accommodation is to be made is not negotiable. How an accommodation is made is negotiable." (King & Jarrow, 1990)
It has been suggested that weighing accommodation requests should be viewed as a "thought process" (Scott, 1990) balancing the essential requirements of a course or program with the individual needs of a student with a learning disability. Brinckerhoff, Shaw, and McGuire (1993) have characterized this interaction as best occurring as a "negotiation" between faculty, student, and if appropriate, the institutional service provider of learning disability services. We need to move this discussion away from the feeling of bureaucratic control to one of establishing a culture of awareness and cooperation; a culture in keeping with the mission of the university. Faculty who are concerned that a requested accommodation will compromise the academic standards of a course or program should actively participate in a discussion with the student. Faculty need to be informed participants in the process.
Scott (1990) recommended a series of questions for faculty to consider in establishing nondiscriminatory essential requirements in a course or program of study with the following questions:
What is the purpose of the course?
What methods of instruction are absolutely necessary? Why? The consideration here is if by altering the method of instruction it would compromise the purpose of the course.
What outcomes are absolutely required of all students? Why? What specific knowledge, principles, concepts, and skills do the faculty believe must be mastered by students.
What methods of assessing student outcomes are absolutely necessary? Why? For example, if a student, based on their disability, requested an oral tape-recorded essay exam, would this compromise the purpose of the course?
What are acceptable levels of performance on these student outcome measures? Adjusting or changing grades is not an accommodation required by law or a recommended practice. Faculty may need to consider how to evaluate student outcome measures that have been accommodated or provided in alternative, nonessential formats such as an essay exam presented orally.
From this baseline of essential requirements, faculty members are then free to consider reasonable accommodations for individual students that do not compromise essential methods of instruction or evaluation. "If attention to dyslexic students leads to a heightened consciousness of the importance of skillful teaching, then the presence of these students on our campuses will have made a significant contribution to the improvement of higher education." (Sheridan, 1990)
Long before the enactment of the ADA, Dewey described the duty of the educator, "...to survey the capacities and needs of the particular set of individuals with whom he is dealing and must at the same time arrange the conditions which provide the subject-matter or content for experiences that satisfy these needs and develop these capacities." (Dewey, 1938)
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