(NAME-MCE) Preserving the Right to Deny

[Anselmo Villanueva]

Preserving the Right to Deny

As lawmakers work to expand Americans With Disabilities Act, higher
education leaders want explicit recognition of their need to make
academic decisions.

http://www.insidehighered.com/news/2008/07/16/disability

July 16, 2008

Preserving the Right to Deny

Expanding protections for disabled students is fine with higher
education officials, so long as accommodating those students doesn't
erode academic standards, according to testimony given to a U.S.
Senate committee Tuesday. But, as the hearing revealed, some are
concerned that "standards" could be defined to exclude the very
students federal laws are designed to help.

Terry Hartle, senior vice president of the American Council on
Education, told lawmakers in a Tuesday hearing that colleges and
universities welcome a proposed broadening of the Americans With
Disabilities Act. In broadening the Americans With Disabilities Act,
as some lawmakers aim to do, students would still be classified as
disabled, even if they controlled symptoms with medication or other
treatments.

That said, he urged lawmakers to protect the authority of institutions
to preserve standards, even if that meant denying some students access
to particular routes of study.

"We are here today to ask the Senate to reaffirm, directly in the
statute, the principle that institutions need not provide an
accommodation when doing so would alter essential aspects of programs
or fundamentally alter or diminish the academic standards set by our
institutions," Hartle said in testimony submitted to the Committee on
Health, Education, Labor and Pensions.

The Senate hearing comes on the heels of legislation passed by the
House last month, which was designed to insure protections for
disabled people, even if they've treated their symptoms with
medication or other means. Supreme Court rulings over the past several
years have found that disabled people who can function normally don't
qualify as disabled, sparking criticism that scores of people with
diseases like cancer and epilepsy are no longer protected under
federal law.

A Skeptical Senator

Leading Tuesday's discussion was Sen. Tom Harkin, the Iowa Democrat
who played a key role in passing the Americans With Disabilities Act
18 years ago. Harkin, who is promising Senate legislation within the
next month, often seemed perplexed by education leaders' concerns
about the House bill. He was particularly skeptical of Hartle's
suggestion that higher education be provided a specific clause in the
legislation, giving colleges and universities "deference" to determine
which accommodations are unacceptable.

"We can't do that," Harkin said bluntly.

To clarify his position, Hartle offered an example of an accommodation
that he said would undermine academic standards. He noted that
students of comparative literature need to be able to read and speak a
foreign language, and that this basic language requirement must be
upheld to preserve the integrity of such degrees.

Hartle's example led to one of the more interesting exchanges of the
session, with Harkin arguing that a mute student in the 21st century
could likely still do the work necessary in comparative literature if
the proper accommodations were made. Harkin suggested that academe may
be tied to some "antiquated conceptions and dictums handed down from
centuries ago" that "have to be challenged once in a while."

Stating the position of the American Council on Education, Hartle said
the council merely wants future legislation to affirm what is already
established in case law.

"We're worried about the potential impacts on academic programs," he
said after the hearing.

Chai Feldblum, a professor at Georgetown University Law Center who
testified at the hearing, said there is nothing in the House bill that
would force colleges and universities to change standards. After the
hearing, she called any such suggestion "completely irrational."

Feldblum, a former American Civil Liberties Union attorney, said "I
just think it's stupid to add something to a statute when one doesn't
need to."

— Jack Stripling