Who Decides?

Disputes over accommodations for students with disabilities have become commonplace. Institutions, students and lawyers fight over whether students are in fact eligible, what changes they are entitled to, and plenty more.

But a lawsuit filed Thursday against the University of Houston involves a student with an undisputed disability who says he was turned down by a professor, without explanation, for his requests for accommodations. Not only is the suit challenging the treatment of the student, but the litigation is demanding that the university abandon a policy in which professors have wide leeway to decide whether to comply with requests from students with disabilities.

"This policy allows professors complete discretion, and that's illegal," said Ernest Saadiq Morris, a lawyer for the Texas Civil Rights Project who is handling the case. It's as if, Morris said, a public university announced that it was going to let individual professors decide whether to follow laws that bar discrimination on the basis of race or gender.

"They are trying to delegate the undelegatable," said Morris. "This case shows a resistance at some universities to viewing discrimination against people with disabilities as what we have accepted as unfair or illegal practice."

Officials from the university said that they could not comment directly on litigation, but confirmed that the policies cited in the lawsuit remain in effect. Dona G. Hamilton, general counsel for the university, said: "The welfare of our students is a primary concern at the University of Houston. We take such complaints very seriously and we are committed to resolving any problems that we may find."

The plaintiff in the case is Gary Bradford, who was starting his senior year at Houston in the fall of 2005, when the disputed actions took place. As a result of a genetic impairment, Bradford was born without arms and his hands are attached at his shoulders. He also has rickets, seizures and immune deficiencies and uses a wheelchair for mobility. When he enrolled at Houston, he registered with the university's Center for Students With Disabilities, which both verified his disability and approved a set of recommendations to help him succeed academically. Those recommendations included obtaining notes from classmates and instructors.

With professors generally cooperating, Bradford was proceeding until he enrolled in a required social sciences writing course last fall. According to the lawsuit, the instructor and teaching assistants turned down -- without explanation -- Bradford's requests for accommodations such as providing him with notes of class lectures and discussions and copies of slides used in class sessions. What is striking, according to Bradford's lawyer, is that the instructors apparently had the right under the university's policy to do so (even if that is against the law).

The Americans With Disabilities Act requires colleges to make "reasonable accommodations" to students with disabilities, provided that the students present evidence of the disability, and the accommodations requested do not distort the nature of the academic work. The University of Houston's policies on students with disabilities have much in common with other institutions' policies. But they suggest in several places that faculty members get to decide whether to make any accommodations. There are references to faculty members being "encouraged" to make reasonable changes and language such as "if the faculty member agrees to provide academic accommodations." This language, the lawsuit charges, gives professors the right to ignore the law, as the suit says happened in Bradford's case.

Richard Allegra, associate executive director of the Association on Higher Education and Disability, said tht he did not know the details of the Houston case, but that he was surprised that colleges would have policies letting any one player effectively veto accommodations for a student with a disability.

Developing a plan for such a student, Allegra said, is a question of finding "balance" between academic goals, the desires of students and faculty members, and the nature of student abilities. Faculty members need to be "a part of the process and a part of the team," he said. But there needs to be "a total team," in which someone -- typically a dean or director -- makes sure that the law is being followed.

One of the issues in the Houston case is the claim by Bradford that he was never given explanations for why his requests were being turned down. Allegra said that good policies always require faculty members who object to a request to explain why. Only when explanations are offered, he said, can others determine if the reasons were justified or offer compromises that might deal with legitimate concerns.

The Houston suit comes at what may be a time of increased scrutiny of colleges' compliance with the ADA. The University of Chicago and the U.S. Justice Department this month announced an agreement under which the university will make extensive improvements in its facilities to bring them in compliance with ADA. (The university maintains that it is not out of compliance, but agreed to the changes following a review by federal officials.) The Justice Department is currently doing a series of other reviews of colleges and their facilities.

Although the Bradford suit focuses on academic accommodations, it also includes a section about facilities. According to the suit, Bradford had to take classes in a building in which the only door that was accessible for people in wheelchairs was generally locked during class hours. After complaints were filed, another accessible door was added, but -- according to Bradford's lawyer -- its automatic features did not work properly so Bradford could go through it only by waiting for another student to come along and open it.

When Bradford did not receive the help he requested in the required class, he dropped out of Houston. Morris, his lawyer, said that Bradford's top goal if he wins the suit is to return to the university to finish his degree.