DISABILITY LESSONS IN HIGHER EDUCATION: ACCOMMODATING LEARNING-DISABLED STUDENTS AND...

INTRODUCTION

Under the Americans with Disabilities Act (ADA)1 and Section 504 of the Rehabilitation Act of 1973 (Section 504),2 institutions of higher education are prohibited from discriminating against individuals with disabilities.3 This prohibition imposes upon colleges, universities and

professional schools an obligation to provide a disabled student with reasonable accommodations to ensure that the institution's requirements do not discriminate on the basis of such student's disabilities, as long as the student meets his or her burden of proving the requisite elements of an ADA or Section 504 claim.4 The federal disability laws have also impacted the National Collegiate Athletic Association's (NCAA) initial and continuing academic eligibility standards.5 This article examines the impact of federal disability law on institutions of higher education and the NCAA. Part I provides an overview of the ADA and Section 504, their legislative histories and implementing regulations. Part II examines the NCAA and its eligibility standards and procedures. Part III reviews the judicial responses to lawsuits brought by learning-disabled students and student-athletes against institutions of higher education and the NCAA. It discusses how the courts determine whether a student's learning disability is covered by the ADA and Section 504 and what accommodations these organizations must grant to learning-disabled students and student-athletes who are protected under these statutes. Finally, Part IV recommends a judicial approach for reconciling the needs of learning-disabled students and student-athletes with the language and intent of the ADA and Section 504 and proposes strategies that universities and the NCAA can employ to satisfy the rights of disabled students and student-athletes without compromising the academic integrity of their institutions.

I. DISABILITY LAW: HISTORICAL OVERVIEW AND STATUTORY AND REGULATORY FRAMEWORK

Section 504, enacted by Congress in 1973, provides that "[n]o otherwise qualified individual with a disability in the United States... 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."6 The ADA, enacted in 1990, expanded the prohibition against disability discrimination into the private sector by including within its purview entities that do not receive funding from the federal government.7 Title II of the ADA applies to public entities, including public colleges and universities.8 Title III prohibits disability discrimination by places of "public accommodation,"9 including undergraduate and postgraduate private schools.10 Although the ADA broadened the scope of protection for disabled individuals from that provided in Section 504, Congress intended the two statutes to be "consistent."11 In fact, since Congress required that the regulations promulgated under Title II of the ADA be consistent with the regulations adopted under Section 504,12 when deciding cases brought under the ADA, most courts have "incorporated by reference" prior interpretations of Section 504(13) and its implementing regulations. This article will, therefore, discuss the ADA and Section 504 together.14

A. Elements of a Section 504 or ADA Case

To establish a Section 504 or ADA claim, a student or student-athlete must prove that:

(1) he or she has a disability within the meaning of the statute;

(2) he or she is "otherwise qualified" to obtain the benefits sought-in other words, he or she can meet the essential eligibility requirements of the school or NGAA, with or without reasonable accommodation;

(3) an adverse action was taken against the student or student-athlete solely because of his or her disability; and

(4) the educational institution or other defendant receives federal financial assistance (for a Section 504 claim) or is a public entity (for a Title II claim) or is a private entity that owns, leases or operates a place of public accommodation (for a Title III claim).15

The requirements for establishing each of these elements are fully explained below.

B. What is a Disability?

An individual is "disabled" under the ADA if he or she has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) ... [is] regarded as having such an impairment."16 The Rehabilitation Act defines disability in substantially the same way,17 and the courts that have considered this issue have consistently ruled that the two statutory definitions of disability are comparable.18 Although the ADA definition of "disability" seems at first glance to be straight-forward, it actually raises significant issues regarding whether an individual is disabled.19 In fact, one commentator has opined that the statutory definition of disability contained in the ADA has "prevented it from fulfilling its purpose of allowing people with disabilities full participation in society."20

C. Physical or Mental Disability

A Section 504 or ADA plaintiff must first demonstrate that he or she is suffering from a "physical or mental impairment."21 While these conditions are not defined in either statute, the legislative history of the ADA includes the following definition:

1. any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or

2. any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disability.22

D. Major Life Activity

The statutes also fail to define "major life activities;" however, regulations promulgated by the Equal Employment Opportunity Commission (EEOC) provide that major life activities include "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working."23 The EEOC Compliance Manual provides further guidance by including within the definition of "major life activity" "mental and emotional processes such as thinking, concentrating, and interacting with others,"24 activities which clearly impact a student's ability to learn.25

E. Substantial Limitation

After establishing the first two elements of the statutory definition of disability, the learning-disabled plaintiff must then convince the court that his or her learning disability is severe enough to "substantially limit" learning or another major life activity.26 Pursuant to the regulations, substantially limiting is defined as:

(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.27

In Bragdon v. Abbott,28 the Supreme Court was called upon to decide whether an asymptomatic, HIV-positive woman was disabled under the ADA. In analyzing whether Sidney Abbott satisfied the statutory definition of disability contained in the ADA, the Court applied a three-step analysis:

First, we consider whether respondent's HIV infection was a physical impairment. Second, we identify the life activity upon which respondent relies (reproduction and child bearing) and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity.29

While on its face Bragdon does not alter the statutory definition of disability, the Court's three-pronged analysis, with its emphasis on whether the impairment "substantially limits" a major life activity, has proven troublesome for learning-disabled students and student-athletes.30

F. Mitigating Measures

A final question regarding the "substantially limits" element is whether treatments and other mitigating measures should be considered when deciding if an impairment substantially limits a major life activity. Despite legislative history31 and interpretive guidance from the EEOG32 and the Department of Justice33 to the contrary, the Supreme Court has ruled that a determination of whether certain impairments are substantially limiting requires an examination of the availability of mitigating or corrective measures.34 For this reason, it may be more difficult for future plaintiffs to meet their burden of proving that they are in fact disabled and therefore entitled to protection under Section 504 and the ADA.35 This is precisely the problem that confronted the plaintiff in McGuinness v. University of Mew Mexico School of Medicine.36 In that case, the Tenth Circuit held that a plaintiff whose anxiety disorder manifested itself when he took chemistry and mathematics tests was not substantially limited in the major life activity of "academic functioning"37 because he was able to mitigate his anxiety by altering his study habits.38 Consequently, the court denied his request for relief under the ADA.39

In addition to providing appropriate documentation to establish that he or she is disabled, the student or student-athlete must demonstrate that he or she is "otherwise qualified" to meet the fundamental or essential requirements of the program, with or without reasonable accommodation.40 Individuals who pose a direct threat to themselves or others are not considered to be "otherwise qualified" under either statute.41

II. NCAA ELIGIBILITY STANDARDS AND PROCEDURES

The NCAA, a private unincorporated association of approximately 1,200 public and private four-year colleges and universities (member schools), is the chief entity responsible for governing intercollegiate athletics.42 To accomplish this task, the NCAA establishes and enforces rules governing all aspects of competition among its member schools, including student-athlete recruitment, athletic scholarship awards, and eligibility requirements for student-athletes.43 In an attempt to accomplish its stated goal of ensuring that athletics remain an "integral part of the educational program and the athlete ... an integral part of the student body,"44 and in response to a number of scandals and criticisms that colleges were graduating student-athletes who were functionally illiterate,45 the NCAA adopted eligibility rules and regulations which have been codified in the NCAA MANUAL.46 These eligibility rules have raised considerable controversy, especially as they relate to student-athletes with disabilities.47

Prior to 1965, the NCAA used a "home rule" method of regulating academic standards for incoming student-athletes, pursuant to which member schools enacted their own eligibility requirements.48 In 1965, the NCAA abandoned the home rule policy in favor of an eligibility standard that required incoming student-athletes to have a high school record and standardized test scores sufficient to "predict" a minimum 1.6 grade point average for the student's first year of college.49 The "1.6" rule was replaced in 1973 with a "2.0" rule, under which a student-athlete's eligibility was conditioned upon the attainment of an overall 2.0 high school GPA.50 Reacting to criticism that eligibility requirements based solely on high school GPAs lacked the uniformity provided by standardized tests and might encourage member schools to subordinate academic concerns in order to recruit students with athletic prowess,51 the NCAA enacted Proposition 48, which went into effect in August 1986.52 Proposition 48 established new minimum academic eligibility requirements for student-athletes which included both GPA and standardized test components. Specifically, freshman athletes were required to have a 2.0 GPA in eleven core high school courses (including math, English, natural sciences and social sciences)53 and a minimum score of 700 (out of a possible 1600) on the SAT or 17 (out of a possible 36) on the ACT.54 Upon enrollment in college, students who satisfied the requirements of Proposition 48 were eligible to compete, practice, and receive athletic scholarships.55 The inclusion of standardized testing criteria in Proposition 48 sparked a great deal of criticism, with many critics asserting that the initial eligibility standards discriminate against minority and low-income students.56 In an effort to raise student-athlete graduation rates and close the "gap" between African-American and white student-athlete graduation rates,57 the NCAA implemented Proposition 16, which took effect in August 1996.58 Proposition 16 increased the number of required core courses59 from eleven to thirteen and used an "Initial-Eligibility Index" designed to decrease the significance of standardized test scores.60 At one end of this eligibility index, student-athletes can establish eligibility with a combined minimum standardized test score of 820 on the SAT or 68 on the ACT, provided they have a minimum 2.5 core GPA. At the other end of the index, students with a minimum 2.0 core GPA can establish eligibility with a combined minimum standardized test score of 1010 on the SAT or 86 on the ACT.61

To qualify to play intercollegiate athletics at the Division I or Division II levels, high school athletes must not only satisfy the NCAA initial academic eligibility criteria,62 but must also register with the NCAA Initial-Eligibility Clearinghouse (Clearinghouse), the organization designated by the NCAA to determine the academic eligibility of incoming college freshman athletes.63 After reviewing the student's record, the Clearinghouse issues a report classifying the student as one of the following: a "qualifier,"64 a "partial qualifier,"65 or a "non-qualifier."66 Student-athletes who become eligible during their freshman year are required by the NCAA to enroll in a full-time program of studies.67 To maintain their eligibility, they must remain in good academic standing and make satisfactory progress towards a baccalaureate or equivalent degree.68

The NCAA does, however, recognize that learning-disabled students may have difficulty complying with its initial eligibility requirements; for this reason, its bylaws contain provisions designed to enable these students to attain "qualifier" status.69 One such provision gives learning-disabled students additional time to complete their core requirements. While most students must complete these requirements prior to their high school graduation, learning-disabled students have until the day they enroll as full-time college students to do so. This enables them to take additional courses during the summer after their senior year in high school.70 The other exception carved out for learning-disabled students is that the NCAA will, in some cases, accept the test results of ACT or SAT exams taken under nonstandard conditions, provided that the students obtain advance approval when taking exams under those conditions.71 This "accommodation" may, however, prove to be illusory for many learning-disabled student-athletes for the following two reasons: (1) the NCAA reserves the right to reject test scores from tests taken under non-standard conditions "even when the admitting institutions and administering testing agencies approved the testing accommodation;"72 and (2) the NCAA often withholds prior approval because it "does not consider the unique programs and learning methods of learning-disabled students."73

Another significant hurdle confronting learning-disabled students is the NCAA's explicit exclusion from its core course requirements74 of "courses that are taught at a level below the high school's regular academic instructional level (e.g., remedial, special education or compensatory)... regardless of course content."75 The NCAA bylaws attempt to mitigate the harshness of this policy by including classes for learning-disabled students in the core requirements "if the high school principal submits a written statement to the NCAA indicating that students in such classes are expected to acquire the same knowledge, both quantitatively and qualitatively, as students in other core courses."76 Additionally, the bylaws permit the NCAA to waive the initial eligibility requirements for students who provide "[o]bjective evidence that demonstrates circumstances in which a student's overall academic record warrants the waiver of normal application of this regulation."77 The final, and perhaps most devastating, obstacle facing learning-disabled students is the requirement that they achieve the same minimum GPA in their core courses that is required of all student-athletes.78 Professor Weston opines that "[t]his policy has dashed the hopes of many promising student-athletes with learning disabilities to compete in intercollegiate athletics."79

III. LITIGATION INVOLVING LEARNING-DISABLED STUDENTS AND STUDENT-ATHLETES

Since the enactment of the ADA there has been a marked increase in the number of learning-disabled students seeking accommodations from institutions of higher education.80 There are differing views regarding the cause for this rise in disability claims. One view81 is that it may be attributable to the fact that learning-disabled students are better prepared for college because of the special education classes they have received pursuant to the Individuals with Disabilities Education Act (IDEA).82 A second view is that the media and other coverage surrounding the passage of the ADA increased awareness by students and their families of their rights under this statute.83 A more cynical view is that the increase "reflects inappropriate claims of learning disabilities made by students hoping to gain a competitive advantage in the educational process."84

There has also been an increase in the number of learning-disabled student-athletes who have sought to exercise their rights under Section 504 and the ADA; however, instead of seeking accommodations directly from colleges and universities, these students must seek redress from the NCAA.85 Of the approximately 1,500 learning-disabled student-athletes who seek NCAA eligibility certification each year, only about two-thirds receive it.86 In contrast, six out of seven of the approximately 140,000 nondisabled student-athletes who seek NCAA eligibility certification receive it.87 In an attempt to remedy what they believe to be violations of federal disability laws, some learning-disabled student-athletes have mounted legal challenges against the NCAA, alleging that Section 504 and the ADA require the NCAA to modify, alter, or waive its eligibility standards for learning-disabled student-athletes.88 These students have received "mixed and usually unfavorable results."89 Even so, the amount of litigation generated by students, coupled with pressure from the Department of Justice, led to the NCAA entering into a Consent Decree with the DOJ pursuant to which the NCAA agreed to temporarily modify some of its standards and procedures for learning-disabled students.90 By its terms, the Consent Decree expired on May 1,2003.91

In order to win a disability discrimination lawsuit under Section 504 or the ADA, the student or student-athlete must establish all of the requisite elements of his or her case.92 As explained below, most students have been unsuccessful in their attempts to do so.

A. Are Learning Disabilities "Disabilities" Under Section 504 and the ADA?

The first inquiry in disability discrimination actions is whether the plaintiff has a "disability."93 In resolving this issue, courts have employed a three-pronged test: first, the court must determine that one has, has a record of having, or is regarded as having a physical or mental impairment; second, the court must identify the life activity upon which the plaintiff relies; and third, the court must conclude that the impairment substantially limits this major life activity."94

Although the regulations implementing the ADA specifically include "learning disabilities" within the definition of a "disability,"95 they do not define the term.96 Consequently, much of the litigation in this area revolves around issues of identifying and diagnosing learning disabilities, and documenting that a learning disability does actually exist. This task is complicated by the fact that learning disabilities are quite diverse and include a range of learning impairments. The most common forms of learning disabilities confronting institutions of higher education involve a student's inability to comprehend mathematical computations (dyscalculia), read (dyslexia), write (dysgraphia), use language (aphasia) or correctly perceive his or her environment.97 Because learning disabilities are "invisible,"98 "not subject to the same level of scientific verification and understanding as physical and medical disabilities,"99 sometimes diagnosed relatively late in a student's academic career at "what may appear to be opportunistic times,"100 and "difficult for the layperson to distinguish from simple lack of ability, lack of discipline, or laziness,"101 it is imperative that a student seeking relief under section 504 or the ADA carefully document his or her diagnosis. Unfortunately, even experts in the field have had problems defining and diagnosing learning disabilities.102 The IDEA defines "specific learning disability" as a

[d]isorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. The term includes such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.103

Specifically excluded from this definition of learning disabilities are "... children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, or mental retardation or emotional disturbance or environmental, cultural, or economic disadvantage."104 The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)105 indicates that the diagnosis of a learning disability is warranted when the "... individual's achievement on individually administered, standardized tests in reading, mathematics, or written expression is substantially below that expected for age, schooling, and level of intelligence. ... Substantially below is usually defined as a discrepancy of more than 2 standard deviations between achievement and IQ."106

Another issue relating to the definition of learning disabilities is whether an educational institution or other entity, such as the NCAA, needs to accept the wide range of learning disorders recognized in the DSM-IV. In Tatum v. NCAA,107 a student sought a preliminary injunction against the NCAA, alleging that the NCAA had violated Title III of the ADA when it refused to accept, for purposes of determining his eligibility to participate in intercollegiate basketball, the score of an ACT test that he took under nonstandard, untimed conditions.108 After he took the test under standard conditions and failed to attain a score that would qualify him for NCAA certification,109 his guidance counselor recommended that he be evaluated for potential learning disabilities in the spring of his senior year.110 The doctoral candidate in psychology who evaluated him concluded that he did not have a learning disability and recommended that he receive tutoring and therapy and spend more time on his studies.111 A month later, at the request of his guidance counselor and mother, Tatum was evaluated by a licensed psychologist who concluded that he suffered from a "generalized anxiety disorder and a specific phobia related to test taking."112 The ACT administrators accepted the psychologist's diagnosis, and permitted Tatum to take the test under nonstandard conditions (untimed, with breaks, and having the questions read to him).113 Tatum took the test three times under nonstandard conditions before he achieved test scores sufficient to earn him NGAA "qualifier" status.114 Under NCAA policy, all students who submit nonstandard test scores must have their documentation reviewed by an NCAA learning disabilities specialist.115 The specialist concluded that despite his test-taking problems, Tatum did not have a learning or physical disability.116 Consequently, the NCAA refused to accept Tatum's nonstandard scores and denied him "qualifier" status.117

The court refused to grant Tatum a preliminary injunction, reasoning that he had not "demonstrated a substantial likelihood of establishing that he has a disability."118 The court seemed particularly troubled by the fact that Tatum was not "seriously evaluated for mental impairments until the second semester of his senior year in high school and only after it was evident that he could not meet the NCAA's required ACT score to attain 'qualifier status.'"119 The court also recognized that conflicting diagnoses were made by two evaluators only one month apart, and that, on cross-examination, the psychologist who diagnosed the learning disability "admitted ... that plaintiffs poor performance on standardized tests could possibly be related to a lack of motivation or preparation."120 This case illustrates the importance of documenting learning disabilities as soon as they surface, and of providing documentation in accordance with established diagnostic guidelines.121

The difficulty of diagnosing learning disabilities is further complicated by the statutory requirement that, in order to give rise to a claim under section 504 or the ADA, the disability must "substantially" limit one or more of the "major life activities" of the plaintiff.122 While the EEOC regulations seemingly require that a determination of whether a disability is "substantially limiting" be made by comparing the plaintiffs ability to perform a particular life activity-in a student's case, the life activity would be "learning"- with the ability of the average person in the general population to perform the same activity, 123 this literal application of the regulations would make it virtually impossible for anyone with a college or graduate degree to be protected under the ADA or Section 504. As one commentator has aptly pointed out, "[a]lmost by definition, an individual who is enrolled in an institution of higher education has demonstrated greater skills in reading, writing, and learning than the average person in the general population."124

Two recent cases provide compelling evidence of the problems inherent in using the general population as the comparison group in learning disability cases brought under the ADA. In Price v. National Board of Medical Examiners,125 three medical students with Attention Deficit Hyperactivity Disorder (ADHD)126 sued the National Board of Medical Examiners under the ADA, seeking injunctive relief compelling the Board to provide each of them with additional time127 to take the United States Medical Licensing Examination.128 The court denied their request, reasoning that they were not disabled under the ADA because when compared to the general population, they were not substantially limited in their learning ability.129 The Price court further justified its ruling by pointing out the "practical advantages" of the "comparison to most people" approach:

Courts are ill-suited for determining whether a particular medical diagnosis is accurate. Courts are better able to determine whether a disability limits an individual's ability in comparison to most people. Additionally, this functional approach is manageable and, over time, will provide a uniform and predictable application of the ADA.130

The Eastern District of Michigan addressed similar issues in a case brought by a medical student against the National Board of Medical Examiners when that organization twice denied his request for extra time to take the United States Medical Licensing Examination.131 Like the plaintiff in Price, Gonzalez brought his lawsuit under the ADA, claiming that his learning deficiency (Reading Disorder and Disorder of Written Expression) entitled him to his requested accommodation.132 The court, in denying Gonzalez's request for relief, ruled that he had failed to demonstrate a disability because he did not demonstrate substantial impairment.133 The court concluded that the "critical issue in this case [was] whether plaintiffs claimed impairment 'substantially limit [ed]' his ability to read and learn" and, in the absence of guidance in the text of the ADA, looked to legislative history and agency regulations for a definition of "substantially limits."134 Gonzalez argued that his performance on the assessment procedures administered by his psychologists demonstrated substantial impairment in the major life activities of reading and learning when compared to the performance of others of similar age and education.135 The court rejected this argument, holding that his performance should instead be compared to the general population.136 Under this standard, which is the one adopted in Price,137 Gonzalez scored "squarely in the average to superior range."138

The rulings in Price and Gonzalez clearly demonstrate the inequities inherent in the approach taken by these two courts. As one commentator has opined, "public policy and the nature of learning disabilities support using similarly educated individuals in the comparison group rather than the average person in the general public."139 A more equitable solution would be to employ the definition of "substantially limited in working" contained in the EEOC regulations to Title I of the ADA. These regulations state that when an individual claims that his or her ability to work is impaired, the degree of impairment should be compared to "the average person having comparable training, skills, and abilities."140 This is precisely the approach taken by the District Court in Bartlett v. New York State Board of Law Examiners.141 In Bartlett, a New York State Bar Exam applicant claimed that her dyslexia142 constituted a learning disability which entitled her to a number of accommodations on the New York Bar Exam.143 The district court began its analysis by determining whether Bartlett suffered from a disability that "substantially limits" a major life activity within the meaning of the ADA.144 Applying the definition of "substantially limited" contained in Title II,145 the court concluded that despite her dyslexia, Bartlett was not disabled in the major life activities of reading and learning because her "history of self-accommodation has allowed her to achieve great accomplishments, one of which includes roughly average reading skills (on some measures) when compared to the general population."146 The court did not, however, end its analysis of the appropriate demographic comparison group at this point. Rather, it applied the definition of "substantially limited" contained in the EEOC regulations adopted pursuant to Title I of the ADA , which provides in pertinent part:

With respect to the major life activity of working(i) The Term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.147

Reasoning that the bar exam was an employment test, the court concluded that "the appropriate demographic group" to which Bartlett should be compared is "a group of individuals with similar background, skills, and abilities."148 After comparing Bartlett to this demographic group, the court concluded that Bartlett was "substantially impaired in the major life activity of working and thereby is a disabled individual, as that term is understood under the ADA and Section 504."149

This is certainly the better reasoned approach since it recognizes the goals of the ADA regarding individuals with disabilities, namely, "... to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals." 150 Furthermore, the concerns expressed by the Price court against this approach are unfounded.151 One concern of the Price court-that comparing the plaintiff to individuals with similar "background, skills, and abilities" would be "unmanageable" and might lead to abuse by plaintiffs-is not borne out by the history of the ADA to date. Disabled employees who sue under the Title I definition of "substantially limited" are not likely to win their lawsuits. A 1997 survey of ADA cases conducted by the editors of the National Disability Law Reporter found that the question of whether the plaintiff met the statutory definition of disability was raised in 110 cases brought between 1995 and 1996.152 Significantly, the survey found that the judges in only six of those cases definitively found that the plaintiffs satisfied the statutory definition.153 The findings of the American Bar Association's 1998 Commission on Mental and Physical Disability Law offer additional empirical evidence that the ADA does not favor employees with disabilities over their employers.154 In fact, the opposite is true. The Commission reviewed 1,200 case decisions. A final decision was rendered by the court in 63.3% of these cases, and the employers prevailed 92.11% of the time.155 Past history does not suggest that changing the comparison group will unfairly advantage learning-disabled students. In addition, as previously stated,156 public policy supports using the comparison group employed in Title I of the ADA, namely, individuals with comparable training, skills, and abilities, for higher education learning disability cases.

B. Learning-Disabled Student-Athletes

One would surmise that learning-disabled student-athletes who are prohibited from playing interscholastic sports as a result of their impairments would face a particularly daunting task of proving that they are covered under Section 504 or the ADA. This is because they must convince a court that barring a student-athlete from playing sports constitutes a "substantial limitation" of a "major life activity."157 However, since many schools fail to raise this obvious argument,158 most courts have "ignored this threshold issue of whether the plaintiff is 'disabled.'"159 The courts which have addressed this issue have reached different conclusions regarding the role that playing sports occupies in a student-athlete's academic career, with the litigants often framing their arguments around whether the test for determining what constitutes a major life activity should be "subjective" or "objective."160

Two courts which applied the "subjective" test found in favor of the student-athlete plaintiffs, reasoning that since athletics significantly impacted their ability to learn, barring them from playing sports in school would constitute a "substantial limitation" on their learning activity in violation of Section 504 and the ADA.161 Other courts have reached the opposite conclusion, holding that barring student-athletes from playing sports is not a "substantial limitation" of a "major life activity."162 In Pahulu v. University of Kansas, a University of Kansas football player barred from playing intercollegiate football after the team physician discovered that he had a congenital cervical canal sued the university under both section 504 and the ADA, arguing that playing college football was a major life activity for him.163 Although the court agreed with Pahulu that playing football was a major life activity for him,164 it did not end its analysis there. Rather, it noted that the relevant inquiry was whether not playing football "substantially limited" his opportunity to learn.165 Since Pahulu retained his athletic scholarship despite being barred from playing, and had access to all of the university's many other educational opportunities, the court concluded that he was not disabled within the meaning of Section 504.166 Reversing the lower court opinion in Knapp v. Northwestern University,167 the Seventh Circuit "decline [d] to define the major life activity of learning in such a way that the Act [Section 504] applies whenever someone wants to play intercollegiate athletics:"168

We do not think that the definition of "major life activity" can be as particularized as Knapp wants it to be. Playing intercollegiate basketball obviously is not in and of itself a major life activity, as it is not a basic function of life on the same level as walking, breathing, and speaking. Not everyone gets to go to college, let alone play intercollegiate sports. We acknowledge that intercollegiate sports can be an important part of the college learning experience for both athletes and many cheering students-especially at a Big Ten school. Knapp has indicated that this is the case for him. But not every student thinks so. Numerous college students graduate each year having neither participated in nor attended an intercollegiate sporting event. Their sheepskins are no less valuable because of the lack of intercollegiate sports in their lives. Not playing intercollegiate sports does not mean they have not learned. Playing or enjoying intercollegiate sports therefore cannot be held out as a necessary part of learning for all students.169

The holding in Pahulu and the Seventh Circuit's decision in Knapp are consistent with the rulings of the McGuinness,170 Price,171 and Gonzalez172 courts, and reflect the misguided view that a student or student-athlete should not succeed in his or her disability discrimination lawsuit unless his or her claimed disability restricts the ability to learn when compared to the general population. The "subjective test" applied by the Sandison court and the Knapp District Court is more consistent with the legislative history of the ADA and public policy.173

C. Documentation of Disability

Institutions of higher education are not required to accommodate learning-disabled students unless and until the student provides documentation174 of the disability and a request for specific accommodation.175 Since most students provide sufficient documentation to trigger the accommodation obligation, not many courts have addressed documentation issues.176 However, in Guckenberger v. Boston Unwersity,177 a challenge by several learning-disabled students under Section 504 and the ADA to the university's eligibility criteria, procedures for evaluating and reviewing students' requests for accommodations, and policies precluding certain types of accommodations, the court addressed several documentation matters as well as whether Boston University had satisfied its accommodation obligations.

At one time a "leader among educational institutions in seeking to provide comprehensive services to students with diagnosed learning disabilities,"178 Boston University (BU) once actively recruited learning-disabled students by establishing a Learning Disabilities Support Services program (LDSS) within its Disability Services Office (DSO).179 By the 1995-1996 academic year, BU had about 480 learning-disabled students.180

Among the accommodations provided to students with documented learning disabilities were the so-called "vanilla" accommodations: in-class notetakers, tape-recorded textbooks, and time and one half on final examinations.181 In addition, the LDSS staff also occasionally recommended that learning-disabled students be permitted to substitute other classes for the mathematics and foreign language courses which all students in the College of Arts and Sciences were required to complete.182 Of the eighty-five requests for foreign language course substitutions that were received during academic years 1992-1993 and 1993-1994, approximately ten to fifteen requests were granted each year.183 BU Provost Jon Westling learned about the course substitutions in the spring of 1995 and, following an "investigation" into the LDSS's policies and procedures,184 directed that all course substitutions cease "immediately" and that all student accommodation letters be sent to his office for review before they were distributed to the students or faculty.185 At about the same time, Westling began delivering speeches "denouncing the zealous advocacy of the 'learning disabilities movement.'"186 Between July and September of 1995, in contravention of Westling's directive, the LDSS issued fifty-eight student accommodation letters, some allowing course substitutions.187 Upon learning in October 1995 that his orders were not being followed, Westling had his office seize the twenty-eight accommodation letters that had not yet been distributed to students, along with the documentation file for each such student.188 In the midst of this chaos, several members of the LDSS resigned, and the provost's office assumed primary responsibility for reviewing accommodation requests and consulting, where possible, with neuropsychologists and other learning disability specialists.189 Shortly thereafter, a class action lawsuit against BU was brought under Section 504 and the ADA by all current BU students with learning disabilities and/or attention deficit disorder (ADD). In their suit, the students claimed that BU discriminated against the learning-disabled by: "(1) establishing unreasonable, overly-burdensome eligibility criteria for qualifying as a disabled student; (2) failing to provide reasonable procedures for evaluation and review of a student's request for accommodations; and (3) instituting an across-the-board policy precluding course substitutions in foreign languages and mathematics."190 BU contended that its eligibility criteria were reasonably designed to ensure that a student was entitled to the requested accommodations, that its review procedures were adequate, and that it had the right to require that a student meet certain levels of proficiency before it conferred a liberal arts degree.191 BU did not, however, dispute that any of the named plaintiffs were "otherwise qualified disabled individuals" and therefore within the protection of Section 504 and the ADA.192

The plaintiffs in Guckenberger challenged the following documentation requirements imposed by BU on learning disabled students seeking reasonable accommodation: (1) that they be tested by a physician, or licensed psychologist, or an evaluator who has a doctorate degree in neuropsychology, education, or another appropriate field; (2) that the test results submitted to BU be no more than three years old; and (3) that they provide BU with the results of I.Q. tests in addition to the results of the normal battery of tests designed to assess the nature and extent of a learning disability.193 The court acknowledged that these requirements were "eligibility criteria" within the meaning of the ADA and Section 504,194 and that the ADA permits a university to require a student requesting a reasonable accommodation to provide current documentation from a qualified professional concerning his or her learning disability. Nevertheless, the court was mindful that the ADA and Section 504 prohibit a university from imposing upon learning- disabled students documentation criteria that "unnecessarily screen out or tend to screen out the truly disabled."195

To determine whether BU's documentation requirements "screened out or tended to screen out" learning disabled students, the Guckenberger court separately considered each of the contested eligibility criteria, taking into account the changes that BU made to its policies in response to the litigation. The plaintiffs challenged BU's requirement that students with current testing performed by trained professionals, who did not have doctorate degrees, be retested. Addressing the issue of "retesting," the court held that this policy tended to "screen out" students because of the time, expense, and anxiety of having to be completely retested, even if their "documentation ha[d] recently been performed by an evaluator who specialized in learning disabilities and who had a masters degree in education or developmental psychology."196 Therefore, this retesting requirement was found to violate federal law.197 Significantly, however, the court upheld BU's more restrictive evaluator qualification requirements for students who were not tested for a learning disability prior to matriculation at BU, noting that "... there is no evidence that testing by evaluators with doctorate degrees is significantly more expensive or burdensome than testing by a person with a masters degree."198

Turning to BU's original requirement that learning disabled students be retested every three years, the court found that this "currency" requirement imposed significant additional burdens on students.199 However, the eligibility requirements had subsequently been modified to allow for waiver of the retesting requirement where retesting was medically unnecessary, and the court ruled that this revised policy did not violate the ADA.200

Finally, the court upheld the third requirement, that I.Q. tests be administered in addition to the regular battery of tests, on the grounds that it did not tend to screen out any students.201 The court noted that the administration of these tests is part of a learning disabilities assessment under the Association on Higher Education and Disabilities (AHEAD) Guidelines,202 diagnostic criteria in the DSMIV, and the standards in twenty-nine states.203

The court awarded the six individual plaintiffs damages on their Section 504 claims204 totaling $29,452 as compensation for retesting expenses they were forced to incur, reimbursement for psychiatric counseling, and general emotional distress sustained as a result of the delays and conflicting information they received during the interim period before the school revised the documentation and accommodation standards. The court awarded an additional $1,247,519.50 in attorneys' fees and $52,311.23 in costs to the plaintiffs as the prevailing parties.205

D. Reasonable Accommodations

Once the learning disabled student has documented his or her disability, the college or university must "reasonably accommodate" that student. Although most institutions of higher education are aware of their accommodation obligations, the determination of what accommodations are "reasonable" has raised legal issues. The regulations implementing Section 504 prescribe compliance standards for postsecondary institutions in the areas of admissions and recruitment, general treatment of students, academic adjustments, housing, and financial and employment assistance.206 The regulations dealing with "academic adjustments"207 are divided into four categories: (1) academic requirements;208 (2) other rules;209 (3) course examinations;210 and (4) auxiliary aids.211 The ADA requires that the educational institution make necessary modifications to its policies, practices, and procedures (including grading, testing, and modification in course requirements), unless doing so would fundamentally alter the program or service being offered.212 The ADA also requires that institutions provide auxiliary aids to students, unless the school proves that providing the aid would either fundamentally alter the service or program or constitute an undue burden.213

Institutions are not required to honor every accommodation request sought by learning- disabled students. Under Section 504 and the ADA, they need not provide accommodations that are unduly burdensome or that fundamentally alter the program or lower its standards.214 Not surprisingly, much of the litigation in this area involves the interpretation of these two defenses.

The most critical factor in assessing whether an accommodation is reasonable is the accommodation's relationship to the school's essential functions, since the law does not require accommodations that alter the "fundamental nature" of its programs. In Wynne v. Tufts University School of Medicine,215 a frequently cited Section 504 case, the First Circuit enunciated a widely accepted standard for determining whether accommodations should be provided:

If the institution submits undisputed facts demonstrating that the relevant officials within the institution considered alternative means, their feasibility, cost and effect on the academic program, and came to a rationally justifiable conclusion that the available alternatives would result, either in lowering academic standards or requiring substantial program alteration, the court could rule as a matter of law that the institution had met its duty of seeking reasonable accommodation.216

Subsequent courts have applied this standard when called upon to evaluate the "reasonableness" of a requested accommodation, almost always showing great deference to the institution's determination of whether the accommodation would change the essential academic standards of its curriculum.217

In Kaltenberger v. Ohio College of Padiatrie Medicine,218 an adult student with ADHD was required to repeat a biochemistry course that she had failed.219 She sued the college when it refused to allow her to retake the course during the shortened summer session because, in its professional judgement, she needed the "full-semester course offered during the academic year as a foundation for her further studies."220 Ruling in favor of the school, the court accorded a great deal of weight to the faculty's professional judgment in the area of establishing appropriate academic standards for its students.221

In Zukle v. The Regents of the University of California,222 a learning-disabled medical student sued her medical school under section 504 and the ADA, claiming that the medical school's denial of her request to restructure her clinical schedule violated their statutory obligation to accommodate her disability.223 While not disputing the severity of her disability, the medical school argued that she was not "otherwise qualified" to remain at the school.224 Zukle responded by asserting that she would be "otherwise qualified" with the aid of the "reasonable accommodations" that she was requesting.225 The court began its analysis by considering the "allocation of the burdens of production and persuasion for the Otherwise qualified'-'reasonable accommodation' prong for a prima facie case in the school context," and concluded that the plaintiff bore the burden of proof in this case:226

...[W]e hold that the plaintiff-student bears the initial burden of producing evidence that she is otherwise qualified. This burden includes the burden of producing evidence of the existence of a reasonable accommodation that would enable her to meet the educational institution's essential eligibility requirements. The burden then shifts to the educational institution to produce evidence that the requested accommodation would require a fundamental or substantial modification of its program or standards. The school may also meet its burden by producing evidence that the requested accommodations, regardless of whether they are reasonable, would not enable the student to meet its academic standards. However, the plaintiff-student retains the ultimate burden of persuading the court that she is otherwise qualified..227

After reviewing Zukle's requested accommodations,228 as well as the medical school's "uncontradicted evidence" that giving her reduced clinical time would have "fundamentally altered the nature of the Medical School curriculum,"229 the court deferred to the school's academic decision that these accommodations would "sacrifice the integrity of its program."230

The Guckenberger court also reviewed Boston University's obligation to reasonably accommodate its learning-disabled students. Specifically, it considered whether the students' requests for course substitutions constituted reasonable accommodations (as the students argued) or a fundamental alteration of BU's academic liberal arts program (as the university argued).231 Citing with approval the First Circuit decisions in Wynne I and Wynne II,232 the court ruled that neither the ADA nor Section 504 "require a university to provide course substitutions that the university rationally concludes would alter an essential part of its academic programs."233 In this case, however, the court agreed with the student-plaintiffs that BU's refusal to modify its liberal arts requirements "flunked the Wynne-test" because it was based more on Westling's 'discriminatory animus' than on a diligent, reasoned, academic judgment."234 Moreover, BU did not carefully consider the effect of course substitutions on BU's liberal arts programs or consult with learning disability experts about the substitutions. In short, it failed to make a rational judgment that course substitutions would fundamentally alter the course of study.235

To rectify this shortcoming, the court ordered the university to engage in a deliberative procedure to determine whether modification of its degree requirement in foreign language would fundamentally alter the nature of the liberal arts program.236 In response to the court's order, the Dean's Advisory Committee within BU's College of Arts and Sciences convened a series of seven meetings to assess whether course substitutions should be permitted.237 The committee concluded that the foreign language requirement was fundamental to the nature of the liberal arts degree at the university and recommended against substitutions.238 The district court reviewed the committee's report and held that BU had met its reasonable accommodation obligation because the undisputed facts demonstrated that the university had considered alternative means and their feasibility, cost, and effect on the academic program and had come to a rationally justifiable conclusion that course substitutions would lower academic standards.239 Finally, the court was not swayed by the argument that BU's decision was a "substantial departure from accepted academic norms" because most universities either do not have a general foreign language requirement or permit course substitutions for foreign languages.240 Observing that a liberal arts curriculum cannot be fit into a cookie cutter mold, the court held that the relevant inquiry was only whether BU had reached its decision by exercising its deliberate professional judgment, not whether the court agreed with the decision.241

E. Accommodating Student-Athletes

Determining the scope of the reasonable accommodations that must be accorded to learning-disabled students becomes even more complex when the student is an athlete. As discussed above, the courts have generally deferred to the decisions of academic institutions on issues of academic standards, program requirements, and student qualifications, and whether modifying those standards to accommodate a learning-disabled student would "fundamentally alter" the nature of the academic program.242 When a student-athlete is involved, the eligibility standards being challenged are set not by the academic institutions themselves, but by the NCAA. Moreover, since the NCAA does not defer to its member schools' decisions regarding admissions,243 there is not always a correlation between the NCAA eligibility criteria and a school's admissions criteria.244 Recent decisions demonstrate that the courts seem similarly inclined to defer to the NCAA's determination of academic requirements.245

The NCAA eligibility procedures that generate the most difficulty for learning disabled students are the core course246 and standardized test247 requirements. Much of the litigation concerns contentions that the NCAA's automatic exclusion of remedial, compensatory, and special education classes from its core course requirements clearly discriminates against students who took these courses because of their learning disabilities. Under the Consent Decree, the NCAA agreed to propose amendments to its bylaws stating that the prohibition on using "remedial and compensatory" courses as core courses did not apply to courses designed for students with learning disabilities, and the fact that the title to a course included a designation such as "remedial," "special education," "special needs," or a similar title would not by itself disqualify a course from meeting the core curriculum requirements.248 Nevertheless, the Consent Decree acknowledges the NCAA's right to exclude special education courses that are not certified as "substantially comparable" to regular education courses, both "quantitatively and qualitatively," and acknowledges that the NCAA is authorized to conduct the certification process.249

Although the core course requirements have generated much litigation, the NCAA's minimum standardized test score requirement is even more hotly contested.250 The regulations implementing the ADA contain specific requirements for admissions tests.251 Therefore, learning-disabled students are entitled to various accommodations when taking these tests.252 However, the NCAA requires learning-disabled students to obtain prior NCAA approval before it will accept test scores taken under nonstandard conditions.253 The Consent Decree specifically addresses the concern that learning-disabled students have with standardized test scores, namely that they may not be accurate measures of such students' knowledge:

Although the nonstandard administration of an SAT or ACT is intended to accommodate for a particular student's disability (so that the score achieved under a nonstandard administration reflects the student's ability, rather than his or her disability), there are certain disabilities (particularly decoding disabilities) that may make achieving the necessary test score-even under a nonstandard administration-more difficult. There is no minimum qualifying standardized test score that is necessary for receiving a full or partial waiver. The subcommittee shall review the student's overall academic record in determining whether the student is prepared to succeed academically in college.254

It remains to be seen whether this provision of the Consent Decree will improve the NCAA's past practice of rarely accepting nonstandard test scores if advance approval was not obtained or it disputed the student's learning disability diagnosis.255

The NCAA has a waiver process to hear appeals of academic ineligibility determinations; however, one commentator notes that this process has been largely ineffective.256 The Consent Decree mandates certain changes in this process. First, students with learning disabilities may now initiate their own waiver appeal.257 In the past, the waiver procedure was only available if initiated by member schools, and only after the student graduated from high school.258 The Consent Decree also specifies the composition of the waiver committee and the factors that it will consider in evaluating waiver applications:

A specific waiver subcommittee on disabilities, consisting of individuals from the NCAA membership with expertise in the area of learning disabilities, will review each waiver application submitted by either a student or a member institution on behalf of a student. The waiver subcommittee on disabilities will begin each review of a waiver request for a student with a disability from the perspective that: each case is unique; the reasons for not meeting the standards vary greatly; and in some instances, the disability itself may have contributed to the student's deficiency.259

A review of cases decided before and after the Consent Decree was signed illustrates that it has not yet significantly improved a learning-disabled student's chances of successfully challenging an NCAA certification decision.260

In Ganden v. NCAA,261 a case brought before the Consent Decree was executed, a nationally recognized high school swimmer diagnosed (since the second grade) with a learning disability that affected his reading and writing skills, was denied NCAA certification as a "qualifier"262 because the NGAA refused to count two of the remedial courses that he took in high school as core courses.263 Ganden sued the NCAA, alleging that its initial eligibility criteria violated the ADA because it "screened" him out due to his learning disability.264 He further argued that the NGAA was required to accommodate his disability by modifying its eligibility requirements.265

The NCAA defended on the following grounds: (1) that it was not a place of public accommodation subject to Title III of the ADA; (2) that its eligibility requirements did not deny Ganden "qualifier" status on the basis of his disability, but only because he failed to attain the minimum combination of standardized test scores and grade point average; (3) that its eligibility requirements were "reasonably necessary" to achieve its purpose (promoting and developing athletic excellence and academic development); and (4) that it had accommodated Ganden by granting him "partial qualifier" status, and that any further modification would "fundamentally alter" the nature of its intercollegiate programs.266 In its ruling on Ganden's motion for a preliminary injunction, the court found that the NCAA was a place of public accommodation and therefore subject to Title III of the ADA.267 Although the court acknowledged that the NCAA's definition of core courses disparately impacted learning-disabled students,268 it also recognized that the NCAA's eligibility criteria (core course and GPA requirements) furthered its goals by "(1) insuring] that student-athletes are representative of the college community and not recruited solely for athletics; (2) insur[ing] that a student-athlete is academically prepared to succeed at college; and (3) preserving] amateurism in intercollegiate sports."269 Specifically, the court stated:

There is little doubt that the GPA and "core course" requirements generally serve important interests of the NCAA athletics. Because of its dual mission, the NCAA has an important interest in insuring that its student-athletes are prepared to succeed at college. Whatever criticism one may level at GPA and the national standardized tests, these provide significant objective predictors of a student's ability to succeed at college. The "core course" criteria further serves [sic] the dual interest of insuring the integrity of that GPA and independently insuring that the student has covered the minimum subject matter required for college.270

The court opined that Title III does not require the NCAA to abandon its eligibility requirements but, in the case of learning-disabled students, to make an individualized assessment of each student's needs.271 The court held that the NCAA satisfied this requirement through its waiver application process,272 which Ganden had utilized. Finally, the court ruled that Ganden had received an appropriate individualized assessment which resulted in the NCAA "reasonably accommodating" him by granting him "partial qualifier" status.273

It remains to be seen whether the Consent Decree will fundamentally alter the NCAA's eligibility determinations. In fact, since some courts have ruled that the NCAA's "pre-Consent Decree" individualized assessments of students' academic records satisfied the requirements of the ADA,274 it is possible that the Consent Decree will do little to change the NCAA's handling of accommodation requests from learning-disabled student-athletes or stem the tide of litigation in this area. This prediction is borne out by an analysis of the first case to be decided after the Consent Decree took effect. In Bowers v. NCAA,275 the court denied the NCAA's motion for summary judgment in a case brought by a former learning-disabled high school football player who was denied a college scholarship after he was declared ineligible to participate in intercollegiate athletics.276 Michael Bowers was diagnosed in second grade with a perceptual learning disability that affected his ability to achieve, despite his intellectual ability.277 Due to his learning disability, Bowers received special education and related services throughout his primary and secondary school education.278 Although Bowers was initially heavily recruited by several colleges and universities, these efforts ceased when it became clear that Bowers would not receive "qualifier" status from the NCAA due to the number of special education classes that he had taken.279 In fact, the NCAA notified Bowers in July 1996 (less than one month before he was to start classes at Temple University) that he was a "nonqualifier."280 As a result of his status as a "non-qualifier," Bowers was ineligible to compete in intercollegiate football during his freshman year and could not receive an athletic scholarship.281 Nevertheless, Bowers enrolled at Temple as a full-time student in the spring of 1997 and received $2,275 in need-based financial aid.282

Bowers sought a preliminary injunction in May 1997, requesting that the NCAA revise his ineligibility status to "qualifier" on the grounds that its classification of him as a "nonqualifier" violated the ADA.283 Before ruling on Bowers's motion, the judge ordered the NCAA to "consider [on an expedited basis] Bowers's application for a waiver of the initial eligibility requirements."284 The NCAA Council Subcommittee on Initial-Eligibility that considered Bowers's waiver request was composed of four individuals who had "considerable experience in the field of learning disabilities."285 After reviewing all of the documentation submitted by Bowers in support of his waiver request, it "credited only four more of [his] courses as 'core courses,' and unanimously concluded that Bowers would not be able to succeed academically during his first year of college while also confronting the demands of competitive intercollegiate athletics."286

The district court denied Bowers's request for a preliminary injunction, ruling that Bowers had not shown a reasonable likelihood of success in establishing that "the NCAA bylaws as a whole impose eligibility criteria that tend to screen out individuals with a learning disability." Specifically, the judge held that requiring the NCAA to completely abandon eligibility requirements would "fundamentally alter the nature of the privilege of participation in the NCAA's intercollegiate athletic program."287 Additionally, the court found that the NCAA reasonably accommodated learning disabled students through its provisions allowing courses for learning disabled students to fulfill the core-curriculum requirements if the high school principal certified that the courses were substantively similar to other core courses and the waiver process afforded to students who were denied "qualifier" status.288

Bowers subsequently filed an amended complaint against the NGAA, alleging violations of the ADA and section 504.289 The NCAA sought dismissal of the suit on the grounds that it was not subject to Title III of the ADA, but the court rejected this argument.290 The NCAA then filed a motion for summary judgment, alleging that it was not covered under Title III because it was not an "operator" of a place of public accommodation and that Bowers was not "discriminated against on the basis of his disability."291

The court rejected the NCAA'sjurisdictional argument ruling that, as a matter of law, the NCAA is an operator of a place of public accommodation under Title III.292 Turning to Bowers's substantive claim, that the NCAA had discriminated against him on the basis of his disability, the court noted that eligibility criteria that "screen out" or "tend to screen out" disabled individuals violate the ADA, unless the proponent of the eligibility criteria can show that the eligibility criteria are necessary.293 The court reasoned that although the burden of establishing whether an eligibility requirement screens out or tends to screen out disabled individuals ultimately rests with the plaintiff, on a motion for summary judgment, the burden is on the moving party (in this case, the NCAA) to establish that it is entitled to judgment as a matter of law. The court refused to grant summary judgment on this issue, ruling that the NCAA had failed to demonstrate that its core course requirement does not screen out disabled studentathletes.294

The court then turned its attention to Bowers's "reasonable accommodation" claim. The court stated that Bowers could also prevail on his discrimination claim if he could prove that a reasonable modification to the NCAA's eligibility requirements would have enabled him to qualify for participation in intercollegiate athletics, provided that the requested accommodation would not fundamentally alter the goal of the eligibility program.295 Because the court concluded that the NCAA had not presented a "fully developed record" regarding the essential nature of the core course requirement, it denied the NGAA's request for ajudgment that Bowers's proposed modification would fundamentally alter the NCAA's eligibility program.296 In doing so, however, the court specifically addressed the May 1998 Consent Decree entered into between the NCAA and the United States Department ofjustice.297 The NCAA pointed out that Bowers had been afforded a waiver procedure consistent with the Consent Decree, under which individuals with "considerable expertise in the field of learning disabilities" performed a substantive analysis of each special education course that Bowers had taken and that, as a result of this waiver procedure, it did accept some, but not all, of Bowers's special education courses as core courses.298 Bowers countered that despite adherence to the terms of the Consent Decree, the waiver procedure afforded him was not a "reasonable modification," because the waiver process itself was "ineffective" and did not "alleviate the discriminatory exclusion of learning disabled individuals from receiving qualifier status."299 Judge Orlofsky acknowledged that whether an accommodation is reasonable requires an individualized inquiry into the effectiveness of a proposed modification in light of the disability in question.300 The court dismissed as "unpersuasive" all but one of the reasons advanced by Bowers to discredit the "reasonableness" of the waiver procedure he received.301 It accepted as "compelling" Bowers's contention that the waiver process occurred too late to be effective for him.302 The court agreed that in order to have effectively assisted him in attaining "qualifier status," the review process should have been conducted at a time when Bowers could have made effective use of the result. Rather, by the time the NGAA conducted Bowers's review, "universities had already dispensed their scholarship money for what would have been Bowers's freshman year. The best that the timing of Bowers's review could have afforded him was the chance that an institution might offer him a scholarship in the fall of his sophomore year."303 Characterizing this as "unreasonable," the court concluded that the waiver review process that the NGAA conducted for Bowers in July 1997 was not a "reasonable accommodation" under Title III of the ADA.304

As the Bowers case continues to work its way through the court system, it is clear that the Consent Decree has not fulfilled the NCAA's prophecy that it "[r]emoves any dispute as to the [NCAA's] compliance with federal law in this matter."305

IV. RECONCILING DIFFERENCES: BALANCING THE LEGITIMATE NEEDS OF LEARNING-DISABLED STUDENTS, EDUCATIONAL INSTITUTIONS, AND THE NCAA

The ADA and Section 504 provide learning-disabled students and student-athletes with significant opportunities to pursue a post secondary education, including the opportunity to compete in intercollegiate athletics. While this legislation recognizes the importance of maintaining academic standards that are essential to the fundamental missions of colleges, universities, and the NCAA, these institutions must reasonably accommodate the legitimate needs of students and student-athletes with documented learning disabilities. The courts have generally deferred to the academic institution's or NCAA's306 judgment regarding whether a requested accommodation is reasonable, provided they can demonstrate why acceding to the request is not possible.307 Consequently, educational institutions and the NCAA should take certain steps to comply with their legal requirements.

A. Educational Institutions

First, the institution should designate an individual responsible for insuring legal compliance with Section 504 and the ADA. This individual, who should have specialized knowledge about disabilities,308 should centralize the accommodations process and ensure that students are treated in accordance with all legal requirements. Second, these entities should, in consultation with legal counsel, develop a comprehensive written policy relating to disability issues. At a minimum, this policy should establish criteria for determining whether a student is, in fact, "disabled" as that term is defined in Section 504 and the ADA.309 The policy should also specify the requisite documentation requirements that learning disabled students must satisfy,310 and insure that these standards are closely linked to the institution's legitimate academic needs and do not merely serve to "screen out" disabled students.311 To buttress their arguments, academic institutions should clearly articulate what their pedagogical goals are. Finally, the policy should address methods for determining the "reasonableness" of any requested accommodations. To be considered reasonable, the accommodations should be consistent with the diagnosed condition and not "fundamentally alter" the academic program.312

B. NCAA

The Consent Decree between the NCAA and the Department of Justice313 is the first step toward balancing the rights of learning-disabled student-athletes to participate in intercollegiate athletics and the NCAA's need to maintain the integrity of its programs. The waiver process mandated under the Consent Decree may solve some of the problems inherent in the present eligibility process, provided that requests for waivers from established eligibility rules are handled on an individualized basis and in a timely manner.314 However, several commentators have advocated an alternative approach to eliminating the problems associated with the present collegiate athletic system, namely, the elimination of freshman initial eligibility requirements.315 Under this scenario, the NCAA would accept the member institutions' decisions regarding academic qualifications of its student-athletes.316 A more radical, but preferable, solution would be the total elimination of freshman eligibility. This "ban" would permit student-athletes to be students "first and foremost"317 by providing them with the time they need to adjust to the social and academic demands of college life. Furthermore, it would enable the educational institution to "make a statement that academics come first."318 It might also stop the current trend in NCAA intercollegiate athletics of student-athletes leaving their universities after one or two seasons to play professionally. As one proponent of this solution observes, these individuals may lose their patience with collegiate athletics, and could be replaced with student-athletes who wanted to pursue an education as well as play sports.319 Freshman student-athletes should, however, be permitted to practice during their freshman year and be eligible for financial aid, contingent upon the satisfaction of their school's academic requirements during their first year of college. This would provide students with the financial resources to attend college and preserve their eligibility to play four years of intercollegiate sports.320

CONCLUSION

The ADA and Section 504 have enabled leaning-disabled students and student-athletes to continue their education and athletic participation at the post-secondary level. While the current legislation has expanded the educational opportunities for these students, the lack of clear regulatory guidance in the area of learning disabilities has sometimes made it difficult for them to attain the accommodations that they need to succeed. Clear definitions of learning disabilities, coupled with reasonable documentation requirements, would greatly enhance the likelihood that deserving students reap the full advantages afforded by disability discrimination legislation. In addition, for purposes of determining whether learning-disabled post-secondary students are in fact "disabled" under the ADA, courts should compare them to a similarly educated comparison group and not to the general population. Furthermore, any cognitive coping mechanisms that these learning-disabled students employ should not be considered mitigating measures that bar them from the protection of the ADA. Finally, since it is evident that "neutral" eligibility criteria adopted by universities and the NCAA can have a detrimental impact on learning-disabled students and student-athletes, universities and the NCAA should be flexible in the manner in which they enforce these rules, taking care to provide each learning-disabled student with a timely, individualized assessment of his or her record. A rigid enforcement of standardized criteria may harm learning-disabled students without necessarily furthering the academic or athletic mission of the organization.

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by Susan M. Denbo*

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* Associate Professor, Business Policy and Environment, Rider University.