Colleges need to broaden definitions to include disability discrimination

From the Chronicle of Higher Ed:

WASHINGTON -- The nation's shifting racial demographics and the growing number of government regulations will force colleges to consider issues of discrimination more broadly than in the past, say higher-education legal experts from across the country who are meeting here this week.

And those trends present a growing challenge to colleges as they seek to balance the shifting needs of students and society against the limited resources of their institutions, they say.

Lawyers representing colleges and private practices that specialize in higher education are here for the annual conference of the National Association of College and University Attorneys, which is marking its 50th anniversary.

That milestone places the association's founding just a few years after the U.S. Supreme Court's landmark 1954 decision, in Brown v. Board of Education, that required colleges and schools to desegregate. And since that ruling, the history of higher-education law has been inextricably linked to the nation's civil-rights movement, said Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va.

In his speech opening the conference, Mr. O'Neil said racial diversity will be one of the major issues higher education will confront as the nation's nonwhite minority groups grow to constitute a multihued majority.

Other speakers at the conference said colleges are finding new justifications for emphasizing diversity even as they face increasing pressure to ensure equitable treatment not only for those of all races and genders, the traditional measures, but also for those of varying sexual identities and persons with learning disabilities.

"The vision has changed with regards to diversity," said Jonathan Alger, senior vice president and general counsel at Rutgers University. In the past, racial diversity began as a mandate only of civil-rights laws, he said, but now economic experts argue that diversity is necessary for institutional success.

But the demand to meet the needs of a wider spectrum of student types and abilities can bring legal and financial risks to the institutions, Mr. Alger said, in the form of costly, frivolous lawsuits.

Laura Rothstein, a professor at the Louis D. Brandeis School of Law at the University of Louisville, said one expanding group in that spectrum is college students who have had accommodations for learning disabilities in elementary or secondary schools under the federal Individuals with Disabilities Education Act.

Those students arrive at college expecting similar academic accommodations, she said, but the federal law that governs special education does not place the same requirements on postsecondary institutions.

More troubling for the institutions is the growing body of federal regulations under the federal Americans With Disabilities Act, which was first passed in 1990 and then amended in 2008 to expand the meaning of what constitutes a disability.

New requirements under the amended law could expand colleges' obligations to accommodate the use of service animals, such as dogs to help the blind, or even add a wide range of pets that are allowed in campus buildings to provide emotional comfort, Ms. Rothstein said.

Federal officials who spoke to the college lawyers said they are also broadening their views of how to prevent discrimination, in part because of support from President Obama.

After years of shrinking budgets and staff, the U.S. Equal Employment Opportunity Commission, which enforces federal antidiscrimination employment laws, has added 300 staff members, said Stuart J. Ishimaru, a commissioner and former acting chairman of the agency.

President Obama appointed key leaders to the commission with the intention of setting it on a more aggressive mission to root out systemic workplace discrimination, Mr. Ishimaru said.

John L. Wodatch, chief of the Disability Rights Section at the Department of Justice, said that President Obama had encouraged his office with the "message that the civil-rights division was open for business."

In addition to working on new regulations for the disabilities act, the department is looking at issues of accessibility for new learning technologies and online classes, Mr. Wodatch said.

Another important area for higher education is helping veterans who are returning to the classroom with a wide new variety of disabilities, including post-traumatic stress disorder and brain injuries, he said.