LEARNING DISABILITIES AND
THE LAW
After High School: An Overview for Students
prepared by Patricia H. Latham,
JD,
in conjunction with the LDA School-age and Postsecondary Advocacy Committees.
Q: Do
the legal rights of students with learning disabilities continue after high
school?
A. Legal rights may continue. It depends
upon the facts in the individual case. Children with learning disabilities who
receive services under the Individuals with Disabilities Education Act (IDEA)
or the Rehabilitation Act of 1973 (Rehabilitation Act) in public elementary
and secondary school may continue to have legal rights under federal laws in
college programs and in employment. When students graduate from high school
or reach age 21, their rights under the IDEA come to an end.
The rights that may continue are those under
the Rehabilitation Act and the Americans with Disabilities Act of 1990 (ADA).
To understand which rights continue, it is important to understand the three
basic federal statutes that confer rights on people with disabilities.
The IDEA, initially enacted in 1975, provides
for special education and related services for children with disabilities who
need such education and services by reason of their disabilities. The IDEA provides
for a Free Appropriate Public Education (FAPE) and for an Individualized Education
Program (IEP).
The Rehabilitation Act, most notably Section
504, prohibits discrimination against children and adults with disabilities.
The Rehabilitation Act applies to public and private elementary and secondary
schools and colleges that receive federal funding. It also applies to employers
that receive federal funding.
The ADA prohibits discrimination against children
and adults with disabilities and applies to all public and most private schools
and colleges, to testing entities, and to licensing authorities, regardless
of federal funding. Religiously controlled educational institutions are exempt
from coverage. The ADA applies to private employers with fifteen or more employees
and to state and local governments.
It may help to consider an example of how rights
may continue over many years. Jeff has a reading disorder. For a long time he
wanted to become a lawyer, and now he is in law school. He received special
education and related services under the IDEA during public elementary school.
He went to a small private religious high school and received accommodations
under Section 504 of the Rehabilitation Act. He received extra test time on
the SAT, during college, on the law school admission test (LSAT), and in law
school. Under the ADA, he will be entitled to extra test time on the Bar Examination.
Q:
Do all people with learning disabilities have legal rights under the Rehabilitation
Act and ADA?
A. No. Many have legal rights, but some
do not. Under the Rehabilitation Act and ADA, a disability is an impairment
that substantially limits a major life activity, such as learning. Children
and adults with learning disabilities, in many cases, have been found to have
an impairment that substantially limits learning. That substantial limitation
means that these individuals have a disability under the Rehabilitation Act
and ADA and are protected under these laws.
Let's look at an example. Jim was diagnosed
with a reading disorder and math disorder when he was six years old. He received
special education under the IDEA for most of elementary school to assist with
reading and math. By the time he entered high school, his reading comprehension
and speed tested as average, but he continued to receive services under the
IDEA for his math disorder through the end of high school. After graduation,
Jim enrolled in art school. The art school required one math course as a requirement
for graduation, but had a policy allowing course substitutions for the math
requirement for students with disabilities that interfered with math. Jim disclosed
his math disorder, requested a course substitution for math, and submitted good
professional documentation of his disability and his need for accommodation.
Since he had largely compensated for his reading disorder and tested in the
average range, he was not substantially limited in reading. Thus, his reading
disorder was not a disability under the law. He did not disclose his reading
disorder and did not seek any accommodations for it.
Q: What
rights do I have under the Rehabilitation Act and ADA as a person with a disability?
A. Basically you have the right to be
free from discrimination on the basis of a disability. In the early school years,
a child may be found ineligible under the IDEA but eligible under Section 504
and the ADA. The child would then receive services and accommodations under
these anti-discrimination laws. In college, the Rehabilitation Act and ADA provide
a right to accommodations for qualified persons with disabilities, so that courses,
examinations, and activities will be accessible. These laws also require reasonable
accommodations in the workplace for qualified individuals with disabilities.
Notice that the protections of these laws are
for qualified persons with disabilities. This means you must be qualified to
do the college program or job in order to be protected under the law. You may
have to prove you are qualified. This is different from public elementary and
secondary school, where you were presumed to be qualified to be educated.
An example will illustrate this point. Karen
had a reading disorder, auditory processing and memory retrieval problems. She
received special education throughout public school. She had extra time on the
SAT and did well enough to get into a college social work program. She disclosed
her disabilities, requested the accommodation of extra test time and a reader
for examinations, and provided supporting professional documentation. She received
the requested accommodations, but failed essay tests anyway. She was dismissed
from the social work program. She then sought to set aside the dismissal on
the ground that she couldn't take essay tests on such complex material because
of her memory retrieval problem. In the end, the finding was that the school
had provided all requested accommodations, that the school had done nothing
improper, and that Karen was not qualified for the program.
Q: What
accommodations would I be entitled to in college?
A. College accommodations depend upon
your particular disabilities and how they impact on you in the college setting.
Accommodations might include: course accommodations (e.g., taped textbooks,
use of a tape recorder, instructions orally and in writing, note taker, and
priority seating) and examination accommodations (e.g., extended test time,
reader, and quiet room).
Q: What accommodations
would I be entitled to in my job?
A: Workplace accommodations depend upon
your particular disabilities and how they impact on performing the essential
functions of your job. Accommodations might include: instructions orally and
in writing, frequent and specific feedback from supervisors, quiet workspace,
and training course accommodations.
Q: What about ADD?
Is it covered under the law?
A. Yes, if it meets the criteria of the
particular law. ADD, while not expressly listed, may be covered by the IDEA
under one of three categories: other health impairments, specific learning disabilities,
and serious emotional disturbance. ADD has been found to be an impairment under
the Rehabilitation Act and ADA and, like learning disabilities, is a disability
if it substantially limits a major life activity, such as learning.
Q: How do I assert
my rights in college?
A. You need to disclose your disability to the
college, request specific accommodations, and supply supporting professional
documentation. In public school, the school system has a duty to identify students
with disabilities. This is not so in college. The student has the responsibility
to disclose the disability and to request accommodations. You must be specific
about the accommodations that you need because of your disability. It is not
enough to say that you have learning disabilities, so the college must help
you.
Let's look at an example. Sarah is taking courses
at the community college. She has a reading disorder, expressive writing disorder,
and ADD. She requested one and one-half time on tests, separate room for tests,
a reader to read exam questions to her, and a scribe to take down her answers.
She provided good professional documentation to support her request and was
granted the requested accommodations.
There are student requests that the college
is not obligated to grant. For example, if you did not request an accommodation
on a test and failed it, generally you may not require the college to eliminate
the failure from your record.
Q: Should I disclose
my disability at work?
A. It depends If you do not need accommodations
in the application process, generally it is best to wait until after you have
the job. Once on the job, if you see that a part of your job is a problem for
you and believe you need an accommodation, it is best to act promptly and not
allow a long period of poor performance. Also, at the time you disclose your
disability, request the specific reasonable accommodations that will enable
you to do your job.
Let's consider an example. Carlos has problems
with expressive writing, spelling, and fine motor coordination. After high school,
he was hired as a security guard. On the job, he began to have problems with
the reports he had to write. The reports were messy, had spelling errors, and
were often submitted late. He sensed that his boss was becoming annoyed. Carlos
disclosed his disabilities and requested that he be able dictate his reports
into his tape recorder and then type them up on one of the computers (with spell
check) at the main office at the end of each day. His request was granted.
Q: How should I disclose
my disability?
A. Disclose the disability in writing.
Be confident and positive. Combine the disclosure with a request for accommodations
that will enable you to perform the job. Provide professional documentation
of your disability and need for accommodations.
Q: What documentation
of my disability and need for accommodations do I have to provide?
A. You need to provide documentation
that establishes that you have a disability and that you need the accommodations
you have requested. This might be a letter or report for the college or employer
from the professional who has evaluated you. It should state the diagnosis and
tests and methods used in the diagnostic process, evaluate how the impairment
impacts on you, and recommend reasonable accommodations.
Q: . What if I find
out I have a learning disability during college or even later?
A. A late diagnosis of learning disabilities
may be questioned more than an early diagnosis. It is important to have excellent
documentation of the disability. It may be important to explain why the disability
was not evident earlier. For example, Janet was diagnosed during her first year
of college with a reading disorder. There were reasons why the problem had not
shown up earlier. She had done well in the elementary and secondary school because
she went to schools that did not have timed tests. She put in the extra time
needed to successfully complete her course work and her tests. In college, timed
tests posed a major problem for her and led her to seek a thorough evaluation.
She was able to document her reading disorder and her need for extra test time
in college and medical school.
Q: What if I take medication
for ADD? Do I still have rights?
A. Yes. The existence of a disability
ordinarily must be judged without reference to the possible beneficial effects
of medication. The taking of prescription medication for ADD does not result
in loss of disability status under the Rehabilitation Act and ADA or in loss
of reasonable accommodations .
Q: Can learning disabilities
or ADD cause a person to be rejected for service in the Armed Forces.
A. It depends. Many individuals with
learning disabilities or ADD join the Armed Forces and report that the structure
and clear expectations help them to do well. However, these conditions may prevent
some individuals from obtaining the required score on the Armed Forces Qualifying
Test. The Armed Forces are not required to grant accommodations, such as extended
test time, on the qualifying test. Further, military regulations provide that
academic skills deficits that interfere with school or work after the age of
12 may be a cause for rejection for service in the Armed Forces. These regulations
also provide that current use of medication, such as Ritalin or Dexedrine, to
improve academic skills is disqualifying for military service.
Q: Can I be fired from
my job or dismissed from college even if I establish that I have a disability?
A. Yes. Having a disability does not
create absolute entitlement to a job or college education. The purpose of the
anti-discrimination laws is to make sure you have equal opportunity. For example,
if you have math disorder and cannot pass a required math course (with no substitutions
permitted) for an engineering program, then you would not be qualified for the
engineering program.
Q: What about confidentiality
of disability records I file with a college or an employer?
A. Colleges generally have confidentiality
policies with respect to disability material. The employment provisions of the
ADA contain confidentiality provisions. However, these provisions are not as
strong as the IDEA provision that provides for a right to delete disability
records contained in your public school files.
For example, Ruth's parents submitted professional
documentation of her learning disabilities and depression to her public high
school. Ruth submitted the same documentation to her first employer when she
disclosed her disabilities and requested job accommodations. After leaving her
first job and being hired by a new employer, Ruth decided that she did not need
accommodations in the new job. She also decided to request deletion of her disability
information from prior files, while retaining copies in her own files in case
she would need the records later. The public high school complied with her request.
Her first employer informed her that the disability information could not be
deleted but was kept in a separate, confidential file.
Q: If I don't get what I
ask for, should I sue?
A. A lawsuit is not the first step. First,
you must evaluate your own position. It may be wise to consult with a lawyer
to review the strong points and weak points in your case. If your case has merit,
and you wish to pursue it, then follow these steps: communicate to the college
or employer the basic facts and the reasons why you are entitled to what you
have requested, negotiate by marshaling the facts that support your request,
consider alternative dispute resolution (e.g., mediation and arbitration), and
finally consider formal proceedings, such as litigation in the courts.
Remember, even if you have a strong case, it
does not mean you must take legal action. You may decide that you wish to put
your energy into moving on to a new college program or job rather than disputing
events at the prior program or job.
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