An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

applicable to students and student applicants with learning disabilities, and other physical or mental impairments. In 2008, Congress enacted the ADA Amendments Act (“ADAAA”) to make it easier for individuals with disabilities to obtain protection under the ADA by, among other things, expanding the definition of “disability” and “major life activity.” 1627 Although the ADAAA is already in effect and applies to entities covered under Title III of the ADA, in 2016, the Justice Department revised the Title III regulations to help clarify the interpretation and application of the ADAAA. 1628 The revised regulations set forth rules, examples and detailed guidance to ensure that courts, covered entities and people with disabilities better understand the ADAAA. 1629 In particular, the revised regulations specify that the term “disability” must be interpreted broadly. 1630 On this subject, the guidance that the revised regulations offer to courts deciding disability discrimination cases is also instructive to private schools. Namely, instead of focusing on whether an individual’s impairment meets the definition of a disability under the ADA, courts are instructed to primarily focus on whether a covered entity has complied with its obligation to not discriminate and whether disability discrimination has occurred. 1631 Further, to help covered entities and others understand the broad standard for determining whether an individual is disabled, the revised regulations offer concrete rules of construction to follow. When schools are determining whether a student’s mental or physical impairment substantially limits one or more of the student’s major life activities, schools should follow the following rules of construction:  Construe the term “substantially limits” broadly in favor of expansive coverage.

 Consider a student’s impairment a disability if it substantially limits the ability of the student to perform a major life activity as compared to most individuals in the general population.  Determine whether a student’s impairment substantially limits a major life activity without, in most cases, reliance on scientific, medical, or statistical evidence.  Not consider the ameliorative effect of mitigating measures other than ordinary eyeglasses or contact lenses in assessing whether an individual has a disability.  Consider an impairment that is episodic or in remission a disability if it would substantially limit a major life activity when active.  Consider an impairment that limits one major life activity a disability even if it does not substantially limit other major life activities. 1632

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 366