A university may deny a disabled student’s reasonable accommodation request if it decides that the accommodation would fundamentally alter its academic programs. In practice, the fundamental alteration defense works like a silver bullet. In evaluating the defense’s application, courts defer to universities’ judgments about what exactly is fundamental about their programs. This deference is a mistake, and one that has had wide-ranging consequences for generations of disabled students whose accommodation requests were denied. This Article describes how Wynne v. Tufts University School of Medicine, a First Circuit decision interpreting Section 504 of the Rehabilitation Act, invented a standard for reviewing how the fundamental alteration defense applies to requests for reasonable accommodation in higher education, and how that standard then became the leading approach. Wynne imported its problematically deferential standard from an unrelated and inapplicable body of law—qualified immunity. The result is a test that mistakenly grants super-deference to certain Section 504 and Americans with Disabilities Act (ADA) defendants in a way that the law does not permit. The Supreme Court has unequivocally held that ADA defendants do not receive special deference with respect to a court’s determination of what aspects of their programs and services are fundamental. Yet for decades, Wynne has gone unquestioned, and its influence has only grown. It is now creeping into work-place discrimination cases, where it unjustifiably advantages employer-defendants. This Article is the first to contend that Wynne was wrongly decided. If courts recognize that Wynne is incorrect, more accommodations will be provided to the very students who need them—and as a result, those students will be more likely to stay in school, graduate, and have a chance at the self-fulfillment the ADA was intended to facilitate.

Continue reading The Higher Education Accommodation Mistake.