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Finally, guidelines are presented that may be used by professors and administrators in their efforts to provide qualified students with disabilities with nondiscriminatory access to higher education. Section 1983 (Civil Action for the Deprivation of Rights) permits a plaintiff to receive a jury trial and to be awarded damages where state action is responsible for a violation of federal constitutional or statutory rights (see Thomas & Russo, 1995, pp. However, these laws failed to provide persons with disabilities with specific protection, as had already been done for persons claiming race, gender, and many other forms of discrimination. Note that this statute applies only to public and private "recipients" of federal aid (see Table 1). Prior to 1973, the only federal law that provided extensive protection for persons with disabilities was the Fourteenth Amendment. In response to this apparent void, Congress enacted two statutes (i.e., the Rehabilitation Act and the ADA) to provide additional protection and to extend coverage into the private sector. However, nearly all public and most private colleges are recipients. Discrimination, harassment, constructive dismissal (i.e., forcing a student to withdraw), and retaliation (i.e., adverse treatment directed toward a student for having filed a complaint with the OCR, Department of Justice [DOJ], or the courts) claims are feasible under the ADA, as well as Section 504 (see, e.g., "Doe " v. Of particular significance in recent years has been the growth in the number of students with learning disabilities. Over 35% of the freshmen in 1996 who reported having a disability were purported to have a learning disability -- an increase from 24.9% in 1991 (HEATH Resource Center, 1998).
Federal regulations for the ADA support the "general population" approach and state that a person is substantially limited when his or her life activities are "restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people"' (emphasis added) (28 C. Given these inconsistent interpretations by lower courts, it is important that Congress or appellate courts resolve the threshold standard for "substantially limits." Presumably, if testing agencies and colleges ultimately are held to the standard for "working," given that both degrees and licensure are required for employment, the demand for accommodation could increase significantly. § 794(a)); the ADA specifies only that the person with a disability be "qualified" (42 U. She had requested that she not be required to take clinical courses and that a full-time supervisor be assigned to her. This section includes a discussion of preadmission activities, the process used for making admissions decisions, judicial deference that typically is given by courts, and the use of probationary admission practices. Typically, preadmission activities include the completion of forms, the payment of fees, interviews, and testing. Importantly, the burden of showing that an appropriate alternative is available rests with the assistant secretary of education. § 104.44(c); see also University of Minnesota, 1995). Two caveats, however: Students without disabilities need not be accommodated; testing services need not provide an accommodation to a student with a disability that would "advantage" the applicant rather than simply "accommodate"' his or her disability. Where appropriate and needed accommodations are provided by testing groups (e.g., National Testing Service), it is common that college officials are alerted (e.g., with the placement of an asterisk by the score) to the fact that the test was not taken under standard conditions. The application must be completed honestly and accurately and submitted prior to deadline. § 104.42(c)), colleges may not make preadmission inquiries as to whether an applicant has a disability, although postadmission inquiries may be made on a confidential basis when the disability may require accommodation (34 C. Nonetheless, those tests that are used must accurately reflect the applicant's aptitude or achievement level (or whatever other factor the test purports to measure), rather than the applicant's impaired sensory, manual, or speaking skills (34 C. And, admissions tests that are designed to accommodate persons with disabilities must be offered as often as are other admissions tests and be made available in facilities that are accessible (34 C. For example, one court has ruled that to require testing boards to grant accommodations without proof of qualifying disabilities would allow persons to advance to professional positions through the "proverbial back door" (Price v. When an application includes a nonstandardized score, it becomes even more important for admissions officers to thoroughly scrutinize the candidate's file. Although the process has been slow, colleges and universities (hereafter referred to as 11 colleges") have made their programs more and more accessible, sometimes in good faith, sometimes due to coercion by federal agencies and courts. Only modest progress was made between 1973 (the passage of Section 504 of the Rehabilitation Act) and 1990 (the passage of the Americans with Disabilities Act; ADA); however, once the ADA was passed and amended and regulations were promulgated, institutions that had made little or no progress in making their buildings and programs accessible increased their efforts.