Short Term Depression is not a Disability

In a recent case out of the Third Circuit Court of Appeals, Seibert v. Lutron Electronics, the court held that depression that was not permanent and caused by specific non-recurring events did not qualify as a disability under the ADA.  In Seibert, the plaintiff-employee suffered from depression that was caused by "her fiance's alcohol consumption, the stress of planning her wedding, financial problems, and her grandfather's illness."  This depression lead to the employee taking a leave of absence from April 2005 to October of 2005.  However, upon returning to work the employee continued to have attendance issues, which the court found were not attributable to depression, and the employer offered the employee the option to either resign her position or be terminated, with the employee choosing to resign.

The court explained that "[t]ransitory, temporary or impermanent impairments" do not meet the definition of an impairment that substantially limits a major life activity under the ADA.  In this case, accordingly, the court found that the depression was temporary.  The ADA itself defines transitory as lasting less than 6 months. 

The case is helpful for school districts in the ADA and Section 504 employment context in that it shows that short term depression caused by a specific event is not a disability.  Likewise, it is helpful under Section 504, which also applies to most school district, because Section 504 borrows the definition of disability from ADA.  Moreover, while perhaps a little less clear, this could also have implications for students in that students who claim to be disabled under Section 504 and/or IDEA due to depression might not so qualify if the depression is short term in nature and attributable to a specific event. 

Unlawful treatment of employees with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

Advanced placement and disabled students: U.S. Department of Education guidance

In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

OCR notes that "[i]t is unlawful to deny a student with a disability admission to an accelerated class or program solely because of that student’s need for special education or related aids and services, or because that student has an IEP or a plan under Section 504." (Footnote omitted.)

[I]f a qualified student with a disability requires related aids and services to participate in a regular education class or program, then a school cannot deny that student the needed related aids and services in an accelerated class or program.  For example, if a student’s IEP or plan under Section 504 provides for Braille materials in order to participate in the regular education program and she enrolls in an accelerated or advanced history class, then she also must receive Braille materials for that class.  The same would be true for other needed related aids and services such as extended time on tests or the use of a computer to take notes.

Schools are not, however, required to admit a student who happens to have a disability to advanced courses if the student is not otherwise qualified for the program. But the qualification requirements must be proper and not, among other things, tend to disqualify a student because of a disability. The example above of a visually impaired student is illustrative: being able to visually read text would probably not be a proper qualification. Having certain background or prerequisite knowledge probably would be proper.

Although OCR’s jurisdiction falls under Section 504 and the Americans With Disabilities Act, the letter notes that the advice is issued after consulting with the Office of Special Education Programs, which oversees the IDEA. OCR offers technical assistance to schools interesting in improving their programs. The guidance contains contact information.

 As with all things involving disabilities and education, each decision must be individualized. And ultimately, the rationale behind any decision must be clearly articulable, proper, and objective in order to be convincingly proper and defensible.

The MLB steroids report, imported lead-containing products, and education

I have never knowingly used anabolic steroids. Anyone seeing me during my long-past sporting days (let alone now) would confirm that nothing in my performance ever even suggested I did. I have, however, handled imported products containing lead, most recently my half-working Christmas lights.  One did nothing for me; the other remains to be known. But the presence of both substances are, in odd ways, connected to public education (if not to each other).

MLB issued its long awaited report confirming what pundits have longer said: some players have used anabolic steroids and MLB did not do much about it. (Click here for one of many news reports about the report.) The Pennsylvania legislature and the public schools, at least, did not take the head-in-the-sand approach but were out in front of the curve on this one.

In 1989, Act 93 (35 P.S. §§ 807.1 – 807.5) mandated school rules to prohibit use of and provide education about anabolic steroids, as well as penalties for use-offenders. Something for MLB to think about.  If the Pennsylvania legislature can handle this issue, surely MLB could, too.

The percentage of special education students in Pennsylvania public schools has steadily increased since 2002-03, the first year for which PDE offers data to the public on-line (from 13.5% to 14.8%).   I believe that the percentages should remain, theoretically, consistent overtime (indeed, identification of hearing impaired, multiple disabilities, orthopedic impairment, and even emotional disturbance, among others, remain rather constant), absent some external factor, such as new or improved diagnostic criteria, which is often said to explain the increasing percentage of Autism Spectrum Disorder (“ASD”) identification (from 2.1% to 3.2%) or perhaps the increase in ADHD / other health impairment (from 2.0% to 4.4%). Others have said thimerosol used in childhood vaccines account for higher incidents of ASD, although we know that now is not the case.  Indeed, the CDC website states “Since 2001, with the exception of some influenza (flu) vaccines, thimerosal is not used as a preservative in routinely recommended childhood vaccines.” Yet the identification of autism keeps rising while, perhaps coincidentally, the identification of mental retardation is the only category to have a significant percentage decline, and in rough opposite proportion to ASD percentages. 

So, is this a matter of diagnostic criteria? Or, might it coincide with the avalanche of imported products containing lead such as toys from China and candy and spices from Mexico in the last 10-15 years as those economies developed? Probably not, but only good studies could say for certain that increases in learning disabilities and behavioral problems are not attributed to the apparently increasing and pervasive (re-)presence of lead in American society.

We educate the kids about the evils of anabolic steroids and turn a blind-eye when they age into the Steroid Era players. We do not tolerate lead in gas and paint, but accept it in cheap imports or even domestic vinyl products. One gets a $20 million plus report and plenty of media coverage to tell us what we already know. The other is ignored and has no report to tell us what we need to know. 

A paradigm shift for identifying learning disabled students in higher education, independent schools, and admissions testing

Is a person whose academic achievement exceeds national average justly entitled to accommodations as “learning disabled?”   What if the person not only exceeds average on performance measures, but also exceeds average through actual attainment, such as a Bachelor’s Degree, perhaps a graduate degree, or even entrance into medical school? Does such a top-flier really need accommodations? Or is it really a matter of taking advantage of benefits entitled for the genuinely disabled? 

“The law compels accommodations for someone who is ‘disabled’ as that term is used in the Acts, but not for everyone who may have a condition described as a ‘learning disability.’” Wong v. Regents of the University of California, C.A. No. 01-17432, 6452, n.6, 379 F.3d 1097, 1109 n.6 (9th Cir. 2004).  The question of entitlement to accommodations first asks if the person is impaired and asks second if the impairment substantially limits the person. The Wong decision and other cases looked at the second question. Changes in the law on how public schools identify learning disabilities, may require colleges and testing organizations to look more closely at the first question, too.

Wong is one of the leading cases in this area of law. While a third-year medical school student, Wong sought accommodations. The court ruled that, although he had an impairment, he was not disabled under the law. The real question, said the court, at 6431, was if the impairment “substantially limited his ability to learn as a whole, for purposes of daily living, as compared to most people.” (Emphasis added.) Wong’s record of academic success belied his own arguments as a “student cannot successfully claim to be disabled based on being substantially limited in his ability to ‘learn’ if he has not, in fact, been substantially limited. . . .” 6452. (Perhaps the question is whether he really was impaired?)

A more recent case involving test accommodations, Love v. Law School Admission Council, Inc., 2007 WL 737785 (E.D. Pa.), resulted in a similar outcome. Like Wong, the parties did not dispute that plaintiff presented an “impairment” based on discrepant test scores. Indeed, LSAC considered whether an applicant’s measured cognitive ability, or IQ, and measured academic achievement scores differed by 1.5 standard deviation (typically, 15 points) to decide whether the applicant has a disabling condition. But the plaintiff, who had a record of academic success, argued that his record of success should not be considered. The court rejected the argument, finding that all the evidence showed plaintiff was not substantially limited, that is, his disabling condition (based on discrepant scores) did not impair his ability to learn.

In the K-12 public school arena, the Individuals With Disabilities Education Improvement Act of 2004 (“IDEA”) largely controls. The 2004 IDEA re-authorization shifted the legal criteria necessary to identify a student with a Specific Learning Disability. Previously, the “discrepancy” model, like the LSAC’s 1.5 deviation requirement, prevailed. In this model, even a high IQ genius could be “learning disabled” as a person with a 140 IQ would be “impaired” if her achievement test scores were “only” 122 (a score in the “superior range” and well above national average). Seems unfair when comparing her to someone at the low or below average range in both IQ and achievement, and especially unfair compared to persons with significant cognitive and developmental disabilities.

This discrepancy model, while not entirely retired from the public schools (and in LSAC), has taken a back seat to the so-called “Response To Intervention” model. In this model, which is still being developed in practice, a student with high cognitive abilities that allow him/her to compensate for other “deficits” are not likely to manifest a disability but will show a response to instruction. Theoretically, students who can learn and respond to appropriate instruction will learn and will not need accommodations and interventions. 

While this change may alter the numbers of students entering college with a record of a disability, perhaps more importantly, it should begin the paradigm shift for identification of a learning disability in post-secondary settings in the first place, both clinically and legally, meaning. As with Wong and Love, we will still consider the legal requirement of a substantial limitation, but we should also start taking a harder look at whether someone performing average or better is in fact impaired and whether someone is really impaired when successfully responding to intervention. Do we really need to use society’s resources accommodating “learning disabled” graduate school applicants, graduate students, even college students, who, quite frankly, are more than likely (above average) to be successful in life?

Fundamentally, a disabling or impairing condition is based on comparison to expected norms, i.e., “function judged to be significantly impaired relative to the usual standard of an individual of their group” or, like legal definitions, “impaired in a way that substantially limits activity especially in relation to employment or education.” Legal definitions are similar, emphasizing that the supposed impairing condition must substantially interfere with learning.  But above average tested learning achievement and, especially, above average learning success, hardly renders one impaired in ability to learn compared to the general population. 

A player in the big leagues is clearly a top-performer in baseball compared to the likes of me. No one could rightly think it fair for the player to say, “I have the potential to hit .400, but I’m hitting only .293. I need you to pitch the ball slower, straighter, and at the sweet-spot each time in order to measure up.” Is it fair for graduate students who have already greatly exceeded educational achievement norms, to say, “despite my achievement, I need more time to think through my answers on this test?” 

Pity for poor student burdened by both average measured intelligence and average measured achievement.

OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.