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  • Cindy Poore-Pariseau

    By Cindy Poore-Pariseau, PhD

    The ADA, originally passed in 1990, was used by the courts to define disability in a very narrow manner, limiting those who might be considered disabled and, therefore, eligible for protection from discrimination and/or eligible for accommodations.  With the passage of the ADA Amendments Acts (ADAAA) in 2008 (and put into effect in 2009), the definition was broadened in such a manner that will allow more individuals on college campuses to take advantage of academic accommodations, designed to level the playing field for those with documented disabilities.

    According to Senator Tom Harkin (Iowa),

    [The Amendments Act] fulfills the promise of the ADA and greatly increases the number of people eligible for its protections. It fixes a number of glaring injustices that have come about because of the Supreme Court's misunderstanding of the original ADA and it clarifies once and for all, that anyone with a disability is eligible for the protections of the ADA. . . .  This bill better defines who Congress intends to meet the definition of disabled. It clarifies that mitigating measures, such as medication, may not be taken into account. It provides guidance as to what is a major life activity. And, most critically, it lowers the threshold for how limiting a condition must be, and insists that courts interpret the ADA broadly.  (Harkin, 2008, para 3, 5)

    Because of how narrowly the original ADA was interpreted by the courts, those whose disabilities are controlled by medication (those with epilepsy or diabetes, for example) were not protected by the ADA.  Although many colleges and universities still provided these students with necessary accommodations, they did not have to.  Post-ADAAA however, people with such impairments, even if the impact is ameliorated by mitigating measures such as medication or artificial limbs, are protected against discrimination and must be accommodated when appropriate. The one exception is corrective lenses.  If a person has corrective lenses that allow for normal vision, that person is not considered disabled.

    Another change brought about the Amendments Act is what can be considered a "major life activity" (which must be impacted in order for an impairment to be considered a disability).  Previously, concentrating and thinking, for example, were not considered major life activities.  Those with impairments that impact these activities, which are essential to success in higher education, are now considered disabled, protecting them against discrimination and enabling them to receive reasonable accommodations in the academic environment.

    A final change in the way the ADA will now be interpreted that will have an impact on postsecondary institutions is that of documentation.  While many institutions previously required recent (usually within 3 years) diagnostic documentation, the Amendments Act calls for less stringent requirements that are not burdensome for students.  Disability services educators are now able to use professional judgment more liberally when considering student self-reports and information gained through intake interviews.  Additionally, if students do not have up-to-date documentation such as recent testing (which is often the case for adult students returning to school after an extended absence), and cannot afford or do not have the time to get updated testing, postsecondary educators cannot mandate that these tests be updated.  The key is that there is some evidence, even if it is old documentation, or a history of services, that indicates that a disability exists.

    For some institutions of higher education, there will be little change in policies, procedures, and numbers/types of students eligible for academic accommodations.  These are the institutions that always took a liberal view of the ADA and did not apply the strict enforcements that others schools applied.  However, for those institutions that did apply the strictest standards (in terms of defining a major life activity, requiring updated documentation and not including those impairments ameliorated by mitigating measures), the number of students served may increase.  As the amendments are fairly new and schools are just beginning to understand their potential impact, and potential students are just beginning to insist the changes be implemented, the increase in numbers of students and services is still unknown.

    Although the numbers are unknown, the positive impact on students is certain.  As stated in the Notice of Proposed Rulemaking's (NPRM) Executive Summary, the Department of Justice stated that

    With the enactment of the ADA Amendments Act, additional post-secondary students and national examination test takers (e.g., CPA, LSAT, and other professional examinations) with attention deficit disorder (ADD) or learning disabilities are now able to receive additional time to complete tests. Before the enactment of the ADA Amendments Act, some of these students may have had their requests for additional time denied by testing entities because such entities believed the disability in question did not meet the ADA's definition of 'disability.' (Balasa, 2014 , p. 2)

    This broader view of who is entitled to protection from discrimination and reasonable accommodations is already showing movement in the courts:

    In six of the seven Circuit Court decisions in which the provisions of the ADAAA were applied, the plaintiff prevailed on the issue of establishing a disability; and in the district court decisions analyzed in cases under the ADAAA, plaintiffs prevailed on the showing of disability in more than three out of four decisions - a substantial improvement over pre-ADAAA decisions in achieving the broad scope of ADA coverage that Congress intended. (National Council, 2013, p. 3)

    Overall, we, as educators, are asked to focus on ensuring students have access to education, rather than placing to focus on who does and does not have all the documentation necessary to establish a disability.  This will, for many institutions of higher education, mean providing more services to more students.  The breadth and depth of the impact is yet to be evaluated.

     

     

    References

    Balasa, D. (2014). "Proposed ADA Regulations Would Impact Assessment Industry."  Retrieved May 28, 2014, from http://www.credentialingexcellence.org/d/do/812.

    Harkin, T. (2008), "Harkin Statement On House Passage Of The ADA Amendments Act." Retrieved May 28, 2014, from http://www.harkin.senate.gov/blogitem.cfm?i=f0b8bd21-242b-4058-bf5a-3dd134ad0045.

    National Council on Disabilities. (2013). "A Promising Start: Preliminary Analysis of Court Decisions Under the ADA Amendments Act." Retrieved May 28, 2014 from http://www.ada.gov/nprm_adaaa/nprm_adaaa.htm.

     

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