Students with disabilities are disproportionately at risk to be victims of crimes—up to three times more likely to be attacked. Federal law protects all students with disabilities from being unfairly discriminated against to enable them to feel physically and mentally safe within the institution. Unfortunately, the system is not perfect.
There are times when filing a discrimination claim is your only recourse. If you are being denied disability rights in higher education, however, an attorney can often protect you and your education before it comes to that.
The following is a brief overview of major protections for disability rights in higher education. It is a different playing field in higher education compared to K-12 school. This is because the rights under the Individuals with Disabilities Education Act no longer applies once you have graduated from high school, become a legal adult, and enter college.
States and municipalities may have laws that temper or expand upon these rights.
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act
Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) still apply in college. They serve identical functions: to prevent any program (in the case of Section 504, those receiving federal funding) from discriminating against you solely because of your disability.
Section 504 covers any school, public or private, that receives federal funding. The ADA Act covers all private and public universities whether or not they receive federal funding.
The coverage for disabilities is broad. It is not limited to learning disabilities. It also covers physical, mental, and emotional issues. Unlike the IDEA act, you are not limited to a list of disabilities that are covered, whereas others are not.
Students can request accommodations for their disabilities, including preferential seating, extra test-taking time, pre-arrange breaks, note takers, substitute assignments, and other solutions designed to encourage academic success.
As a rule, each school maintains a disabilities service office. These go by many names. Accessibility Office, Student Accommodations, Student Services Office, Equity and Inclusion Office—the names are almost as varied as there are schools. But you can usually count on the administrators in these offices to support your requests for accommodations.
Getting the rest of the school to listen may be a different matter, however. Nevertheless, students with disabilities should register with their school’s disability office (not to be confused with the Title IX office). Each school will also have a website that provides information on how to do so. It is common that schools publish forms in order to request specific accommodations.
The school must grant your accommodation unless it can show that it is unduly burdensome. A school may also deny an accommodation if it can argue that you are not “otherwise capable” of performing in the academic program.
Test taking is a good example. Accommodations to permit extra time or special conditions of privacy for taking a test are common and almost always granted. These accommodations are more like ramps for wheel chair accessibility: they are designed to permit you to show what you can do once you get access to your education.
But accommodations to make a low score or failing grade satisfy academic requirements are almost never granted. In that case, the school can successfully defend its discretion to set the standards for substantive knowledge and learning.
If you fail a test because a school knows about your disability but denied you an accommodation which would have permitted you to show your true knowledge, you’ll have a strong claim. If the accommodation you want is to be excused from the failed test, however, you’re likely to have a weak claim.
Title IX and Disability Rights
Title IX provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Not only are students with disabilities disproportionately targeted for sexual assault; unfortunately, students with psychiatric diagnoses are disproportionately accused under Title IX. This is due to stigmatization and a lack of social understanding of their conditions. Depending on how the school treats the case, investigations may be dragged out over the course of an entire school year. This compounds the pressure placed on students with psychiatric conditions.
Whether you are accused or whether you are accusing another student of sexual misconduct, you should be aware that an entirely different set of accommodations will be required in the process.
You can and should insist on accommodations during a Title IX investigation. This includes getting guidance and protection in high pressure hearings, developing a plan for no-contact orders in public spaces, and insisting on advance notice of all hearings and applicable procedures.
Many students who reach university are justly proud that they do not need academic accommodations. They may not even register with the disability services office. They are obviously very successful, or they would not get to the university level.
But academic accommodations have little to do with accommodations you will need if you are subjected to the high-pressure interviews, hearings, and interrogations by administrators or, in some cases, the police. These are typical in sexual misconduct cases.
Furthermore, accommodations in the process must be designedto protect both you and to protect the evidence. The manifestation of certain cognitive disabilities can be mistaken by college administrators as evidence that the student is not telling the truth, is hiding something, or is simply culpable. This is itself a form of discrimination. You need to work with an experienced attorney who knows how to protect you as well as the evidence so that the school listens to your account of events.
A wave of states has begun to legalize marijuana, and even more have legalized medical marijuana. Some, like Connecticut and Rhode Island, have granted strong protections to medical users of marijuana. In these states, schools may not discriminate against you in education, housing, or employment solely on the basis of medical marijuana use.
Most universities engage students in all three of these areas: as landlords in dormitories, as employers in work-study, and as educators in the classroom.
Although over 30 states allow the sale and purchase of medicinal and/or recreational cannabis, marijuana, including medical marijuana, is still illegal under federal law.
This means colleges are not required to make disability accommodations for medical marijuana usage under federal laws like the ADA or Section 504. But neither are they allowed under state medical marijuana laws to take action against you for medical marijuana.
Colleges protest that their federal funding may be yanked under the Drug-Free Schools and Communities Act. This law, 20 USC § 1011i, requires all schools to report policies establishing a “program to prevent the use of illicit drugs and the abuse of alcohol by students and employees.” If they do not do so, they may not accept federal aid, including student loans for tuition payments.
The Drug-Free Schools and Communities Act does not, however, require universities to sanction or punish medical marijuana use. This was the judgment of, the Arizona Supreme Court. It ruled that federal law did not require state schools to punish medical marijuana users. It was unconstitutional for Arizona State, the court held, to ignore Arizona’s medical marijuana law in the name of a preference to obey federal law. The court also poo-pooed the suggestion that Arizona State University would lose federal funding.
There has yet to be an example of federal funding withdrawn from a school because it refrained from discriminating against medical marijuana users.
The fact is that many universities in states with medical marijuana laws, including the University of Connecticut, have illegal drug and alcohol policies that defy state law. One private university has already been ordered by the Connecticut Superior Court to let a student back into class after she tested positive for medical marijuana use.
This issue will continue to be litigated. Allen Law has won an injunction against a Connecticut university for the illegal enforcement of its drug policy.