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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