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Vitriolic Verification: Accommodations, Overbroad Medical Record Requests, and Procedural Ableism in Higher Education

Published online by Cambridge University Press:  12 July 2021

Tara Roslin
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American Journal of Law & Medicine , Volume 47 , Issue 1 , March 2021 , pp. 109 - 130
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© 2021 The Author(s)

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Footnotes

†

Tara Roslin, Esq. is a graduate of Boston University School of Law ‘20. She served as a 2019-2020 Symposium Editor on the American Journal of Law and Medicine and founded Boston University Disability Law Advocates and Allies—a disability affinity group and professional development organization at Boston University School of Law. Ms. Roslin was advised, encouraged, and supported by Dr. Robyn Powell, an attorney, author, professor, and scholar of disability law.

References

1 Buck v. Bell, 274 U.S. 200, 207 (1927).

2 “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.” Id. at 207 (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905)).

3 Id.

4 Id.

5 It is important to note that while Buck v. Bell is a reprehensible opinion, it has not been overturned and remains “good law.” In fact, guardian-imposed sterilization still exists in the United States. See, e.g., Ari Ne’eman, Washington State May Make It Easier to Sterilize People with Disabilities, Am. Civ. Liberties Union (Jan. 29, 2018, 5:45 PM), https://www.aclu.org/blog/disability-rights/integration-and-autonomy-people-disabilities/washington-state-may-make-it#:~:text=And%20yet%2C%20state%20laws%20still,sterilization%20for%20individuals%20under%20guardianship.&text=People%20with%20disabilities%20should%20not%20be%20denied%20this%20choice [https://perma.cc/XJ9P-FXSR].

6 The Supreme Court Ruling That Led To 70,000 Forced Sterilizations, NPR (Mar. 7, 2016, 1:22 PM), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/E28Y-8VYY]; see also Reiter & Walsh, P.C., Involuntary Sterilization of Disabled Americans: An Historical Overview, Am. Baby & Child L. Ctrs. (Nov. 6, 2018), https://www.abclawcenters.com/blog/2018/11/06/involuntary-sterilization-of-disabled-americans-an-historical-overview/ [https://perma.cc/JL5K-KHR8].

7 See Gloria L Krahn et al., Persons with Disabilities as an Unrecognized Health Disparity Population, 105 Am. J. Pub. Health S198, S200 (2015) (“[A]lthough public insurance provides coverage for many people with disabilities, it does not cover all people, and … . [e]ven with insurance, people with disabilities are much more likely (16% vs 5.8%) to miss getting need care because of cost.”); Rachel Bluth, For the Disabled, a Doctor’s Visit Can be Literally an Obstacle Course — and the Laws Can’t Help, Wash. Post (Oct. 28, 2018, 9:00 AM), https://www.washingtonpost.com/national/health-science/for-the-disabled-a-doctors-visit-can-be-literally-an-obstacle-course--and-the-laws-cant-help/2018/10/26/1917e04c-d628-11e8-aeb7-ddcad4a0a54e_story.html [https://perma.cc/3XKF-8NX9] (describing how a professor at Harvard Medical School who uses a wheelchair went twenty years without having her weight taken due to inaccessible scales); Michael R. Ulrich, Challenges for People with Disabilities Within the Health Care Safety Net, Health Aff. (Nov. 18, 2014), https://www.healthaffairs.org/do/10.1377/hblog20141118.042813/full/ [https://perma.cc/49CJ-EHVM] (“This community is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that cover the population as a whole and their acute and long-term needs.”).

8 See Nancy J. Evans et al., Disability in Higher Education: A Social Justice Approach 56-58 (2017) (explaining how in the early 20th century policy makers placed “disability” under the dominion of the medical profession).

9 Id.; Sara Goering, Rethinking Disability: The Social Model of Disability and Chronic Disease, 8 Current Rev. Musculoskeletal Med. 134, 134 (2015); Deirdre M. Smith, Who Says You’re Disabled? The Role of Medical Evidence in the ADA Definition of Disability, 82 Tul. L. Rev. 1, 40-41 (2007).

10 Stephen Bunbury, Unconscious Bias and the Medical Model: How the Social Model May Hold the Key to Transformative Thinking About Disability Discrimination, 19 Int’l J. Discrimination & L. 26, 29 (2019) (citation omitted) (“In the last decade, the social model has had a significant impact in shaping public policy and education in the United States.”); see also Bradley A. Areheart, When Disability Isn’t “Just Right”: The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. 181, 227-29 (2008) (advocating for the passage of the ADA Restoration Act of 2007, a version of which was passed in 2008, as a return to the social model of disability); cf. Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32, 41 (1st Cir. 2018) (collecting circuit court cases to conclude that “some conditions plainly fall within the universe of impairments that a lay jury can fathom without expert guidance. These conditions do not require medical evidence in an ADA case.”).

11 Mancini, 909 F.3d at 42 (holding that disabled status does not require medical evidence under the ADA); Johnathan M. Crotty, Medical Evidence Not Necessary to Prove ADA Disability, Parker Poe: Att’ys & Couns. L. (Dec. 6, 2018), https://www.parkerpoe.com/news/2018/12/medical-evidence-not-necessary-to-prove-ada-disability [https://perma.cc/5J7J-J9H5].

12 Due to lack of reporting regulations, the exact prevalence of asking for medical documentation before asking for less invasive documentation is unknown as institutions are not required to report their accommodation practices to any administrative agency. However, many prominent universities plainly require medical evidence as a prerequisite for obtaining accommodations. See, e.g., Goldman Ctr. for Student Accessibility, Tulane Univ., Documentation Guidelines (2018), https://accessibility.tulane.edu/sites/accessibility.tulane.edu/files/Guidelines%20for%20Documentation%202018.pdf [https://perma.cc/A3DK-5EAY]; Office of Disability Servs., Princeton Univ., Medical Disability Documentation Form (2018), https://ods.princeton.edu/sites/ods/files/resource-links/medical_disability_documentation_final.pdf [https://perma.cc/YNS3-LX9C]; Student Disability Serv., Cornell Univ., Guidelines for Providers Submitting Documentation, https://sds.cornell.edu/sites/sds/files/docs/Guidelines%20for%20Documentation%20from%20a%20Provider.pdf [https://perma.cc/2SAZ-DWVL]; Documentation Guidelines and Accommodation Process, Geo. U. Acad. Resource Ctr., https://academicsupport.georgetown.edu/disability/medical-accommodations/ [https://perma.cc/A6HP-NBWS].

13 See Mancini, 909 F.3d at 43 (1st Cir. 2018) (stating medical documentation is not a necessary component of proving “substantial impairment” under the ADA as amended); Crotty, supra note 11 (“In some circumstances, [medical evidence] would be necessary to establish the existence of a qualifying medical condition. But in others, a lay jury can determine this status without detailed medical evidence.”).

14 Jay Timothy Dolmage, Academic Ableism: Disability and Higher Education 7-10 (2017) (explaining how ableism and stigma are used to insinuate inferiority to disabled persons).

15 Evans et al., supra note 8, at 55, 57 (introducing various disability models and theories and stating “the medical model evolved and remains a major paradigm for understanding, treating, and working with people with disabilities.”).

16 See Cristobal de Brey et al., Nat’l Ctr. for Educ. Stat., Digest of Education Statistics, 2019 215 (2021) (“Nineteen percent of undergraduates in 2015-16 reported having a disability.”).

17 Battle, Dolores E., Project Success: Assuring College Students with Disabilities a Quality Higher Education, 9 ASHA Leader 6, 6 (2004).Google Scholar

18 Individuals with Disabilities, Nat’l Inst. Health: Diversity Extramural Programs, https://extramural-diversity.nih.gov/diversity-matters/individuals-with-disabilities [https://perma.cc/M6JK-EXGW].

19 Postsecondary Nat’l Policy Inst., Students with Disabilities in Higher Education 1 (2020), https://pnpi.org/wp-content/uploads/2020/10/StudentswithDisabilities_UpdatedOct2020Factsheet.pdf [https://perma.cc/4XPP-JS5Z]; Fast Facts: Students with Disabilities, Nat’l Ctr. for Educ. Stat. (2019), https://nces.ed.gov/fastfacts/display.asp?id=60 [https://perma.cc/S89X-5AF2].

20 Disabilities in Higher Education, Legal Aid at Work, https://legalaidatwork.org/factsheet/disabilities-in-higher-education/ [https://perma.cc/NGS4-9X8N].

21 Id.

22 Postsecondary Nat’l Policy Inst., supra note 19; Fast Facts: Students with Disabilities, supra note 19.

23 Cong. Research Serv., R44887, Students with Disabilities Graduating from High School and Entering Postsecondary Education: In Brief 9-10 (2017).

24 Lynn Newman et al., Inst. of Educ. Scis., The Post-High School Outcomes of Young Adults with Disabilites Up to 8 Years After High School 32 (2011), https://ies.ed.gov/ncser/pubs/20 113005/pdf/20113005.pdf [https://perma.cc/A23X-LPFH].

25 See, e.g., Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council, Inc., 896 F.Supp.2d 849, 852-53, 857 (N.D. Cal. 2012) (alleging discriminatory impact of excessive documentation requests); Settlement Agreement Between the United States of America and Northern Michigan University Under the Americans with Disabilities Act, ADA.Gov (Oct. 18, 2018), https://www.ada.gov/nmu_sa.html [https://perma.cc/PW9T-MRYP] [hereinafter DOJ Settlement Agreement - Northern Michigan University].

26 Congress stated that persons with physical or mental disabilities have the “right to fully participate in all aspects of society” and recognized that discrimination prevents such participation, particularly in the area of education. Congress further stated they would use the “sweep of congressional authority” to address discrimination. Americans with Disabilities Act, 42 U.S.C. § 12101 (a)(1)-(3), (b)(4) (2018).

27 See Disabilities in Higher Education, supra note 20.

28 See, e.g., Law Sch. Admission Council, Inc., 896 F.Supp.2d at 852-53; DOJ Settlement Agreement - Northern Michigan University, supra note 25, at ¶ 4-6.

29 In one case, the defendant test company “flagged” scores of accommodated test takers. Law Sch. Admission Council, Inc., 896 F.Supp.2d at 869 (explaining that flagging the scores of prospective law students discourages students from applying for accommodations, amounting to a denial of equal opportunity claim).

30 See 28 C.F.R. § 36.105 (d)(1)(vii) (2018). “The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. Nothing in this paragraph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evidence in making such a comparison where appropriate.” Id.

31 U.S. Dep’t of Justice, ADA Requirements: Testing Accommodations (2015), https://www.ada.gov/regs2014/testing_accommodations.pdf [https://perma.cc/ZH36-W4XJ]; ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, ADA.Gov, III-1.000, III-4.6000-4.6100 (1993), https://www.ada.gov/taman3.html [https://perma.cc/9WUS-VE44].

32 Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 477 (2002).

33 Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999); Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). In Sutton, the Court reviewed an EEOC informal guidance document that instructed covered employers to disregard any mitigating factors when evaluating an employee’s disability status. Sutton, 527 U.S. at 472. The court refused to enforce the guidance stating that it was an “impermissible interpretation of the ADA.” Id.

34 DOJ Settlement Agreement - Northern Michigan University, supra note 25, at ¶ 4-6 (detailing excessive medical inquiries performed by a university). While recent settlement agreements give us a general idea about what the proper scope of medical documentation is, these decisions are only legally binding unto the parties to the settlement, and therefore are an inappropriate replacement for regulation. Accommodation request forms detailing extensive medical documentation requests, from various schools around the country, are on file with the author.

35 Id.

36 Brown v. Bd. of Ed., 347 U.S. 483, 495 (1954).

37 Id. at 493.

38 Id. (“[Education is the] principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”).

39 Allie Grasgreen, Dropping the Ball on Disabilities, Inside Higher Ed (Apr. 2, 2014), https://www.insidehighered.com/news/2014/04/02/students-disabilities-frustrated-ignorance-and-lack-services [https://perma.cc/N6GW-3ZWH].

40 Id.

41 Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2018); see also Letter from Arlene Mayerson, Directing Attorney, Disability Rights Educ. & Def. Fund, to Virginia Foxx, Chairwoman, House Comm. on Educ. and the Workforce, & Bobby Scott, Ranking Member, House Comm. on Educ. and the Workforce (May 17, 2018), https://dredf.org/wp-content/uploads/2018/05/DREDF-Letter-re-Brown-for-Committee-051618.pdf [https://perma.cc/QW4D-4QPB].

42 Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400, 1402 (2018).

43 Id. §§ 1400-1401, 1412-1415 (including six elements: individualized education program, free appropriate public education, least restrictive environment, appropriate evaluation, parent and teacher participation, and procedural safeguards).

44 See Rehabilitation Act of 1973 § 504.

45 Introduction to the ADA, ADA.Gov, https://www.ada.gov/ada_intro.htm#:~:text=Modeled%20after%20the%20Civil%20Rights,law%20for%20people%20with%20disabilities [https://perma.cc/ZT8Z-RV55].

46 Rehabilitation Act of 1973 § 504; Letter from Arlene Mayerson, supra note 41.

47 See Rehabilitation Act of 1973 § 504; Office for Civil Rights, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, U.S. Dep’t Educ. (Jan. 10, 2020), https://www2.ed.gov/about/offices/list/ocr/504faq.html [https://perma.cc/P9XN-8HVW].

48 Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2018).

49 Id. § 12101.

50 Id. § 12101(a)(2).

51 See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (holding that to establish disability status under the ADA, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives and has a permanent or long-term impact).

52 42 U.S.C. § 12102(1)(A).

53 Sutton v. United Air Lines, Inc., 527 U.S. 471, 481-82 (1999).

54 Barbara Lee, A Decade of the Americans with Disabilities Act: Judicial Outcomes and Unresolved Problems, 42 Indus. Rel. 11, 18-19 (2002). Compare 29 C.F.R. § 1613.702 (1995) (lacking a definition for ‘substantially limits’) with 29 C.F.R. § 1630.2(j) (1999) (defining “substantially limits” and listing factors to consider).

55 Lee, supra note 54, at 18.

56 Sutton, 527 U.S. at 481-82. United Air Lines’ argument that the “[c]ourt should not defer to the agency guidelines cited by petitioners because the guidelines conflict with the plain meaning of the ADA” won the day. Id. at 481. While the ADAAA later nullifies this ruling, the statutory canon remains intact, leaving regulations that the court finds contrary to the statutory text susceptible to evasion.

57 Wendy F. Hensel, Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities, 25 Ga. St. U. L. Rev. 641, 667-668 (2009) (“Employers won 95.5% of all ADA cases, with the majority on the grounds the plaintiff could not establish a protected disability under the ADA.”).

58 See id. at 651-52.

59 See Lawrence D. Rosenthal, Can’t Stomach the Americans with Disabilities Act? How the Federal Courts Have Gutted Disability Discrimination Legislation in Cases Involving Individuals with Gastrointestinal Disorders and Other Hidden Illnesses, 53 Cath. U. L. Rev. 449, 487-88 (2004).

60 The Second Circuit applied a broader standard and allowed the consideration of mitigating factors without a single determinative factor. See Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d 69, 80 (2d Cir. 2000) (finding that while self-coping mechanisms may properly be considered as a mitigating factor, ability to cope in the past, standing alone, is not sufficient to prove that one is not substantially limited by their condition). The Fourth Circuit applied a much narrower standard and placed a heavy weight on mitigating factors, holding that past ability to perform at a standard level is determinative and enough to extinguish one's protective status under the ADA. See Betts v. Rector & Visitors of Univ. of Va., 18 F. App’x 114, 118 (4th Cir. 2001) (declaring petitioner is not disabled under the meaning of the statute because past self-coping mechanisms allowed petitioner to “achieve a history of academic achievement,” demonstrating “his learning abilities are comparable to the general population”).

61 Bartlett, 226 F.3d at 80.

62 Id. (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 480 (1999)) (clarifying that while the court “must account for Bartlett’s self-accommodations in determining whether she is disabled, … the fact that [Bartlett] can self-accommodate does not itself determine whether she is disabled” and further remarking that a finding of disability “depends on whether the limitations [Bartlett] actually faces are substantially limiting”).

63 Id. at 75.

64 Id. at 74.

65 Id. (holding Bartlett’s ability to self-cope with a cognitive disability does not automatically remove her from the ambit of protective class status).

66 See Bartlett, 226 F.3d 69. Contra Betts, 18 F. App'x 114.

67 Betts, 18 F. App'x at 118.

68 See Hensel, supra note 57, at 671.

69 ADA Amendments Act of 2008, 42 U.S.C. §§ 12101-12213 (2018); see also Sutton, 527 U.S. at 482.

70 42 U.S.C. § 12102(4)(E); see also Sutton, 527 U.S. at 482.

71 42 U.S.C. § 12102 (4)(D).

72 Id.. § 12102(4)(A); Tess O’Brien-Heinzen, The ADAAA: Key Changes to Disability Law, 85 Wis. Law. 18, 20 (2012).

73 Id.

74 Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014); 29 C.F.R. § 1630.2 (j)(1)(ix) (emphasis added) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.”).

75 Summers, 740 F.3d at 329.

76 Id. at 331-32; 29 C.F.R. § 1630.2(j)(1)(ix).

77 Summers, 740 F.3d at 330-32 (“Congress … mandated that the ADA, as amended, be interpreted as broadly as its text permits.”).

78 Id. at 330-31. In the lower court proceeding, the court found the employee was not disabled because he could work with the use of a wheelchair without accommodation. Id. at 330. The Fourth Circuit rejected the argument stating the courts analysis relied on pre-ADAAA case law. Id. at 331. The circuit court explained that the ADAAA demands an inquiry into ones disability status without regard to mitigating factors. Id. After the court establishes disability and moves on to evaluate whether or not the employee received reasonable accommodations, only then may the court account for mitigating factors. Id.

79 See id. at 329.

80 Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2018); Americans with Disabilities Act, 42 U.S.C. §§ 12132, 12182 (2018); see also Ass’n on Higher Educ. & Disability, Supporting Accommodation Requests: Guidance on Documentation Practices 1 (2020), https://www.ahead.org/professional-resources/white-papers-guiding-documents/intellectual-disabilities-white-paper [https://perma.cc/M9V5-M2QG].

81 Importantly, granting access is not necessarily achieved by the provision of reasonable accommodations. However, other access prerequisites, such as the elimination of physical barriers, are outside of this Note’s scope. See Ass’n on Higher Educ. & Disability, Policy Agenda/Platform 4-7 (2020), https://www.ahead.org/professional-resources/white-papers-guiding-documents [https://perma.cc/6PHP-MPGW].

82 PACER’s Nat’l Parent Ctr. on Transition & Emp’t, The ADA, Section 504 & Postsecondary Education 1 (2015), https://www.pacer.org/transition/resource-library/publications/NPC-42.pdf [https://perma.cc/H8D8-S8ZZ].

83 See Ass’n on Higher Educ. & Disability, supra note 80, at 3.

84 See id.

85 See Summers v. Altarum Inst., Corp., 740 F.3d 325, 330-31 (4th Cir. 2014).

86 See Americans with Disabilities Act, 42 U.S.C. § 12102 (2018).

87 28 C.F.R. §§ 35.108(d)(1)(vii), 36.105(d)(1)(vii) (2020).

88 See Ass’n on Higher Educ. & Disability, supra note 80, at 1-3 (stating that there is no minimum set of documentation required to request accommodations, and that documentation policies should be tailored to each student).

89 Guckenberger v. Bos. Univ., 974 F. Supp. 106, 141 (D. Mass. 1997) (citing the use of the interactive process only in an employment context).

90 See 29 C.F.R. § 1630.2 (o)(3) (2020) (stating that under the equal employment provisions of the ADA, an “informal interactive” process may be necessary for employers to determine an individual’s limitations due to disability and the reasonable limitations required to overcome the limitations).

91 28 C.F.R § 35.130(b)(8) (emphasis added) (Title II entities may not “impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”); id. § 36.301(b)(8) (Title III corollary for places of public accommodation).

92 See id. § 35.130(b)(8).

93 Guckenberger, 974 F. Supp. at 138 (finding that a three-year retesting requirement for a stagnant impairment is an unnecessary requirement for students engaging in the interactive process). The court found the requirement that learning disabled students be retested if their prior testing was performed by someone with a master’s degree, rather than a doctorate degree, violative of the ADA because it was unnecessary to “accomplish [Boston University’s] goal of improving the quality of evaluations.” Id. at 139-40.

94 28 C.F.R. § 36.309.

95 Id. § 36.309(b)(1)(iv).

96 Id. § 36.309(b)(1)(v).

97 What Is the Definition of Disability Under the ADA?, ADA Nat’l Network, https://adata.org/faq/what-definition-disability-under-ada [https://perma.cc/EN8V-KZ7V].

98 See Ass’n on Higher Educ. & Disability, supra note 80, at 1-2 (noting that extensive medical documentation requirements “[perpetuate] a deviance model of disability,” thus institutions should review their medical documentation processes with legal counsel to comply with laws and regulations).

99 Research supports that Black and Hispanic children “are less likely to receive specialized medical tests than their Caucasian peers.” Ashley Yull, The Impact of Race and Socioeconomics Status on Access to Accommodations in Post-Secondary Education, 23 Am. U. J. Gender Soc. Pol’y & L. 353, 377 (2015). This means a minority student with disability, which higher education institutions require the opinion of a medical specialist to confirm (such as the requirement to see a neuropsychologist), is less likely to be successful in the accommodations process. Id.

100 See, e.g., Guckenberger v. Bos. Univ., 974 F. Supp. 106, 136 (D. Mass. 1997) (recalling testimony by Plaintiff Cutler, a former disabled student at Boston University, that BU’s unreasonable retesting policy served as a “poignant reminder that she was not ‘normal.’”).

101 Smith, supra note 9, at 40-42 (describing tendencies of the law and society to rely on medical testimony to prove both a prima facie case and that exclude “nefarious” individuals who aim to exploit benefits from claiming disability.).

102 Id. at 43 (noting concerns by former Boston University President, Jon Westling, that the ADA will “wreak educational havoc” as individuals feign disabilities to seek an advantage while simultaneously demoralizing and undermining both non-disabled and disabled peers).

103 See 81 Fed. Reg. 53,204, 53,213-14 (Aug. 11, 2016) (responding to comments concerned about the feigning of disabilities, the DOJ “acknowledge[d] that there will always be some individuals who seek to take advantage … . [However,] the [DOJ] found no evidence to indicate that the rate of fraudulent claims of disability has increased since the implementation of the ADA Amendments Act in 2009.”).

104 Id. at 53,214 .

105 See Areheart, supra note 10, at 193 (noting that the circulation of a “medicalized image of disability” in media reinforces misconceptions and produces negative effects in areas such as education).

106 Evans et al., supra note 8, at 62, 64, 71 (describing the social, minority group, and social justice models, which focus on socially-constructed barriers, institutions, and environments that oppress disabled individuals).

107 Id. at 62-63.

108 Areheart, supra note 10, at 188.

109 For example, in 2017, the author (Tara Roslin) attended the Rebellious Lawyering conference where she listened to disability scholar Lydia X. Y. Brown speak on a panel regarding disability in the legal profession. One of the attorneys on the panel was Deaf. A sign language interpreter audibly spoke the words signed by the attorney to the audience. Lydia reminded the audience that the interpreter was not present to accommodate the speaker, rather the interpreter was present to accommodate the audience because most of us did not understand sign language. Lydia’s poignant distinction and reframing demonstrates that it is sometimes our environments that render us disabled rather than any variances in our bodies’ abilities or cognitive processes.

110 See generally Janine Owens, Exploring the Critiques of the Social Model of Disability: The Transformative Possibility of Arendt’s Notion of Power, 37 Soc. Health & Illness 385, 388 (2014).

111 See Alice Wong & Mia Mingus, Disability Visibility Project: Mia Mingus, Part 1, Disability Visibility Project (Sept. 25, 2019), https://disabilityvisibilityproject.com/2014/09/25/disability-visibility-project-mia-mingus-alice-wong/ [https://perma.cc/YA6S-JMPU].

112 What is Disability Justice?, Sins Invalid (June 16, 2020) (quoting Aurora Levins Morales, Kindling (2013)), https://www.sinsinvalid.org/news-1/2020/6/16/what-is-disability-justice [https://perma.cc/5TC9-B5PH].

113 Mia Mingus, Reflection Toward Practice: Some Questions on Disability Justice, in Criptiques 107, 110 (Caitlin Wood ed., 2014).

114 Evans et al., supra note 8, at 77.

115 Supra note 99 and accompanying text.

116 Guckenberger v. Bos. Univ., 957 F. Supp. 106, 107 (D. Mass. 1997).

117 Id.

118 See id. at 117-18.

119 Id. at 118.

120 Guckenberger v. Bos. Univ., 957 F. Supp. 306, 312 (D. Mass. 1997).

121 Id.

122 Guckenberger, 974 F. Supp. at 120-21.

123 Id. at 134.

124 Id.

125 Id. at 135.

126 Id. at 136.

127 Id.

128 Id. at 136-37. Conversely, the court ruled that the policy requiring that students with a suspected learning disability test for the first time with a doctorate level practitioner was reasonable. Id. at 137.

129 Id.

130 Smith, supra note 9, at 40.

131 Id. at 5.

132 Interview with Student Note-Taker, Bos. Univ., in Boston, Mass. (Apr. 18, 2020) (transcript on file with author); Note Taking Services, B.U. Disability & Access Servs., https://www.bu.edu/disability/accommodations/procedures/specific/notetaker-service/ [https://perma.cc/8DHQ-ETVA].

133 Note Taking Services, supra note 132.

134 Interview with Student Note-Taker, supra note 132; Note Taking Services, supra note 132.

135 Interviews with Graduate Students, Bos. Univ., in Boston, Mass. (Apr. 18, 2020) (transcript on file with author); Note Taking Services, supra note 132.

136 See, e.g., Note-taking Accommodations, Rutgers Univ. Off. Disability Servs., https://ods.rutgers.edu/note-taking-accommodations [https://perma.cc/P3C4-3VG8] (stressing that the identity of students receiving notes is confidential); Notetaking Services, U. Cent. Ark. Dsiability Resource Ctr., https://uca.edu/disability/notetaking-services/ [https://perma.cc/UEY2-98DM]; Note Taking Services, Fla. St. U. Dep’t Student Support & Transitions, https://dsst.fsu.edu/oas/services/acc ommodation-policies/note-taking-services [https://perma.cc/LQ7P-NYPP].

137 Melissa Martinez Bondy, Northern Michigan University Settles with DOJ Regarding Treatment of Students with Mental Health Disabilities, JD Supra (Nov. 8, 2018), https://www.jdsupra.com/legalnews/northern-michigan-university-settles-44008/ [https://perma.cc/SU2S-8ZY3]; see also DOJ Settlement Agreement - Northern Michigan University, supra note 25, at ¶ 4-5.

138 DOJ Settlement Agreement - Northern Michigan University, supra note 25, at ¶ 8.

139 Id. at Attach. A (appending under Attachment A the “Treatment Provider Form”).

140 Id. at ¶ 15(a)(iii).

141 Id. at ¶ 4-6.

142 Id. The University claims they acted according to the “direct threat” portion of the ADA, which allows “exclu[sion] [of] an individual with a disability from participation in an activity if that individual’s participation would result in a direct threat to the health or safety of others. The [University] must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation’s policies, practices, or procedures or by the provision of appropriate auxiliary aids or services.” ADA Title III Technical Assistance Manual, ADA.gov, https://www.ada.gov/taman3.html [https://perma.cc/Q6KD-VMUV]; see also 28 C.F.R. §35.139 (2018). The DOJ, based on the evidence submitted with the students’ complaints, determined there was no such threat. DOJ Settlement Agreement - Northern Michigan University, supra note 25, at ¶ 6. Furthermore, even if there was such a threat, the inclusion of the model medical inquiry form demonstrates the DOJ’s recognition that the previous method of medical information inquiry as to direct threats was inappropriate at best and illegal at worst. See id.

143 DOJ Settlement Agreement – Northern Michigan University, supra note 25, at ¶ 4-5; see also Martinez Bondy, supra note 137.

144 28 C.F.R. §35.139.

145 Id.

146 See DOJ Settlement Agreement – Northern Michigan University, supra note 25, at ¶ 15(a)(iii).

147 Id. at Attach. A (first emphasis altered) (second emphasis added).

148 Id.

149 Id.

150 See id.

151 The driving congressional intent behind enacting the ADAAA was to broaden the availability of an adjudicatory forum for disabled peoples facing discrimination. Americans with Disabilities Act, 42 U.S.C. § 12101(b)(5) (2018). Regulations that provide for a clearer path to litigation when individuals are discriminated against when they apply for accommodations is consistent with that intent.

152 See DOJ Settlement Agreement - Northern Michigan University, supra note 25, at Attach. A.

153 See id.

154 Id. at ¶ 11(d). The reasonable modification requirement is, as always, attached to the notable exception that a university does not have to make any modification that “fundamentally alter[s] the nature of the service, program, or activity.” Id.

155 Id. at Attach. A.

156 Id. at ¶ 12(a)(iv)-(v) (emphasis added).

157 See Dep’t of Fair Emp’t & Hous. v. Law Sch. Admission Council, Inc., 941 F. Supp. 2d 1159, 1161 (N.D. Cal. 2013) (implying that certain practices, such as flagging disabled applicant scores, can result in students avoiding seeking accommodations).

158 See Americans with Disabilities Act, 42 U.S.C. § 12112(d) (2018).

159 See id.

160 Id. § 12112(a).

161 See 29 C.F.R. § 1630.4 (2020); see also 42 U.S.C. § 12112(b)(4).

162 U.S. Equal Emp’t Opportunity Comm’n, EEOC-CVG-2003-1, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (2002) (“A reasonable accommodation enables an applicant with a disability to have an equal opportunity to participate in the application process and to be considered for a job.”); see 42 U.S.C. § 12112(b)(5)(A) (establishing that private employers, who can demonstrate granting an accommodation request would result in undue hardship, may legally deny an accommodation request).

163 42 U.S.C. § 12111(9).

164 Id. §§ 12111(1), 12116.

165 See id. § 12112(a).

166 Filing a Lawsuit in Federal Court, U.S. Equal Emp. Opportunity Commission, https://www.eeoc.gov/federal/fed_employees/lawsuit.cfm [https://perma.cc/3GMF-LYWA].

167 Id.

168 See 42 U.S.C. § 12112(d).

169 See id.

170 See id.

171 Christopher J. Kuczynski, ADA: Disability-Related Inquiries; State Laws, U.S. Equal Emp. Opportunity Comm’n (July 13, 2008), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-322 [https://perma.cc/5567-JU9K].

172 Id.

173 42 U.S.C. § 12112(d)(2)(A).

174 Id. § 12112(d)(2)(B).

175 29 C.F.R. § 1630.13(d)(2)(B) (2020).

176 Id. §1630.14(b).

177 Id. § 1630.14(b)(3).

178 Id.

179 Medical Exams and Inquiries, Job Accommodation Network, https://askjan.org/articles/Requests-For-Medical-Documentation-and-the-ADA.cfm [https://perma.cc/K3X6-JPZC] (“Job-related and consistent with business necessity” is the standard the EEOC applies when analyzing whether a medical inquiry or examination is permissible under the ADA and corresponding Title I regulations).

180 Id.

181 Id.

182 Interactive Process, Job Accommodation Network, https://askjan.org/topics/interactive.cf m [https://perma.cc/YUA9-FW7A].

183 Id.

184 Tracie DeFreitas, Requests for Medical Documentation and the ADA, Job Accommodation Network, https://askjan.org/articles/Requests-For-Medical-Documentation-and-the-ADA.cfm [https://perma.cc/7AWY-RCLT].

185 Interactive Process, supra note 182.

186 Id.

187 Id.

188 DeFreitas, supra note 184.

189 Id.

190 U.S. Equal Emp’t Opportunity Comm’n, EEOC-CVG-2016-1, Enforcement Guidance on Retaliation and Related Issues (2016) (generally relaying the unacceptability of chilling a protected class member’s will to pursue their rights under the ADA in the employment context).

191 See supra Part V. Firming up an “interactive process” requirement is in line with Guckenberger. Guckenberger v. Bos. Univ., 974 F. Supp. 106, 143 (D. Mass. 1997).

192 See, e.g., Guckenberger, 974 F.Supp. at 143.

193 Battle, supra note 17, at 6.