Learning Disabilities and The Law: After High School: An Overview for Students

Senior student receiving advice from his school councilorDo the legal rights of students with learning disabilities continue after high school?

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 (RA) 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 15 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.

Do all people with learning disabilities have legal rights under the Rehabilitation Act and ADA?

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.

What rights do I have under the Rehabilitation Act and ADA as a person with a disability?

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.

What accommodations would I be entitled to in college?

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).

What accommodations would I be entitled to in my job?

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.

What about ADHD? Is it covered under the law?

Yes, if it meets the criteria of the particular law. ADHD, 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.

How do I assert my rights in college?

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.

Should I disclose my disability at work?

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.

How should I disclose my disability?

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.

What documentation of my disability and need for accommodations do I have to provide?

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.

What if I find out I have a learning disability during college or even later?

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.

What if I take medication for ADD? Do I still have rights?

Yes. The existence of a disability is to 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.

Can learning disabilities or ADD cause a person to be rejected for service in the Armed Forces?

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.

Can I be fired from my job or dismissed from college even if I establish that I have a disability?

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.

What about confidentiality of disability records I file with a college or an employer?

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.

If I don’t get what I ask for, should I sue?

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.

Author:   Patricia H. Latham, JD, in conjunction with the LDA School-age and Postsecondary Advocacy Committees

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Comments

  1. I have dyscalculia, I was diagnosed with it as a child and it’s been a real struggle to deal with in college. My community college waived the math requirements and also did course substitution, allowing me to transfer to a 4 year state university. The university I’m currently at has NOT helped at all. They are disregarding my paperwork showing my disability (which was done by a disability tester/psychologist) and are basically saying they can’t help me. I’m so close to graduating and don’t know what to do at this point. I’m looking into getting a lawyer since I’ve heard that their disability office is known for turning students with disabilities down (isn’t that illegal?). Any advice would be helpful

  2. Mary Humphries says:

    I am a 71-year-old female. I am two classes away from graduation at a community college. I had a stroke in 2015 and spent one year in physical, speech, and occupational therapy. I was not allowed to drive for one-year. I am unable to do the college algebra. I have tried twice and had to drop the class due to severe stress. My physician wrote a letter to the school and stated that it was his opinion that the stroke left me with cognitive decline and caused me to have difficulty with numerical computations. He also said that he doubted this would improve in the future given the length of time since the event. When I see a math equation, I am unable to solve the problem. It simply does not mean anything to me. The school said they would accept a Portfolio for Prior Learning Credit but I would have to take the math class and fail it and it would also reduce my GPA. I have a 4.0 GPA and pay my own way through school. What would take another student 20 minutes to do, it would take me 2 days. This is causing me so much stress. My plans are to graduate in December of this year, but I CANNOT pass the math. Is there anything else I can do to graduate.

    • LDA of America says:

      First, congratulations on your 4.0 GPA achievement! Not many people can say they had a 4.0 GPA at any point in their college career, so you have already achieved a lot! It’s understandable how you would not want to compromise that impressive GPA at this point, when you’re so close to graduating! If nothing else, you have that feather in your cap already and you should be very proud of your accomplishment! You did not say what accommodations the college is providing for your physical and cognitive disability following the stroke. If you are not receiving testing accommodations in your math class, it may be that receiving extra time to complete the test would give you a chance to pass that class. Or maybe you would benefit from using a talking calculator, which would allow you to process the numbers using both auditory and visual modalities, and that may help with your comprehension. Your college’s office of disability services should be able to help you choose appropriate and effective accommodations, as well as make arrangements for those accommodations to be applied during all your tests. For information about your rights and responsibilities as a person with a disability, see http://oldldaamerica.org/rights-and-responsibilities-of-college-students-with-learning-disabilities-ld/. Another idea is that you can apply for services with your local Vocational Rehabilitation (RSA) agency. If they accept you as a client, they may be able to arrange for the college to waive the math requirement or provide a course substitution for you. Read the information at http://oldldaamerica.org/rehabilitation-services-administration-rsa/ to find out more about RSA services and how to find your local RSA office. It may be, however, that the college is unable to waive or provide a course substitution for that requirement, and maybe you’ve already tried testing accommodations and it wasn’t enough. In that case, you may have to consider the option of graduating with less than a 4.0 GPA. But the college’s offer to accept a portfolio may be the closest they’ll come to waiving the math requirement, and while it would lower your GPA to fail one class, it won’t lower it enough to prevent you from graduating. If your goal is to graduate, that’s a choice you may have to make, and remember that most people do graduate with less than a 4.0 GPA.

  3. kerri Chambers says:

    My son was diagnosed in the fourth with a severe learning he was evaluated every year almost till the 12th grade and graduated we special hel we special help from teachers as soon as he gradua he got into some trouble and now he sits in jail cuz he don’t know when and how to comply with probation officer please help my son he’s in jail

  4. I have a question. I have a Learning Disability I had to drop courses because I was not getting what I should of had. Is there any way I can get the courses off my academic record?

  5. Hello;

    My son is about to graduate high school. He has had an IEP since third grade. He was diagnosed with ADHD in second grade and he has a learning disability. He’s always been a C average student. He’s very smart, but has always struggled with math. Because he is very active in school – plays football, wrestles, and runs track, no one would know about his disability unless he told them. Last year, he received a concussion playing football and since, he has had issues with memory. Well, a couple of months ago we began visiting colleges. His dream was to either play in the NFL or to coach. When he met with his guidance counselor, he was told that his GPA was 2.9, but when he applied for a school, they rejected him because based on their calculation it was 1.6. Could he apply for a reasonable accommodation because of his disability? Are colleges required to consider his disability (once disclosed of course) in the admission process and in relation to the GPA?

  6. I am a 22 year old male who would like to get a Bachelor’s Degree but I cannot pass math. I have completed enough units to transfer to State but in math. When I was in school I was diagnosed with Asperger’s then in community college I was told I have a Learning Disability. Can I ask for a math waiver from my counselor? I am not good talking I have problems remembering what to say.

  7. HI. I am 38 years old attending a private cosmetology academy and I am disabled mentally, with fibromyalgia and epilepsy and other illnesses. I told the school 8 month before that I have these disabilities, I signed a contract with them because they did accept me knowing my condition, I received a full grant from the bureau of rehabilitation and unemployment which they did testing before I was granted the payment for school and now I am obligated to take a “leave of absence” against my will because of my absences due to my illness. Am I protected by the rights of students with hidden disabilities under section 504 of the rehabilitation act of 1973? what actions should I take?

    Thank you;

  8. Hello I am a senior in high school and I went to my school consuler and asked for help filling out college applications and she told me sense I am on an IEP that the adjusted classes I am taking is not preparing me for college and that I wouldn’t be able to get into any universities in less I take regular class but I would fail then. Is that true or is there away around that cause I really want to go to college next fall. I was also told sense I am on an IEP that I would get an diploma called an IEP diploma which stops us from entering the military and two-year colleges, so I talked to a college and they told me if I got my GED with that diploma that I could go to a college. Do you agree with all of this or is there something else I can do?

    • Julian Ramirez says:

      You got the right to go to any collage you want. I have a iep as well. I work as ems first responder in new york city. And i am in medical assistant student. At a vocational education school in new York city. Am going to my externship on September 28,2016. So do not give up on your golden and deam. To go to collage and study hard and you will get farther. I stay have hard time. But I come going.work hard and study hard. You will see the difference results. And God will guide you through hard times

  9. Patty Mcmahan says:

    Help..I’m desperate and I’m not sure what to do! My grandson just turned 18 and he got a hi-set diploma after struggling throughout school.When he was in elementary school he was diagnosed with ADHD and was given medicine and was in IEP.He has mild mitral valve prolapse and the medicine was bad on his heart so I decided to take him off of it.Once he got in middle school IEP 504 didn’t carry over to sixth grade.I told various teachers and the principal that he had ADHD and probably needed tested again but it was never done.Middle school was a nightmare for him as he was bullied every day because he was bi racial.His grades were not good and he was struggling and never could pass math so he was excluded from any school activities.In eighth grade his mother died suddenly and not one person in that school said sorry about your mom.He was given one day out of school due to her death so now he is dealing with all of that and his only way of dealing with all that pressure was to read,he always carried a book so when he was being bullied or excluded he would read s he became an excellent reader but he started missing too many days of school and once he got into a 99% all white high school things became unbearable as the bullies multiplied and tortured him daily to where he had nightmares about it at night.I told the principal about my concerns and that I felt like he needed tested again for IEP but to no avail.This kid was scared of change but finally he came to me one day and said he couldn’t take it anymore so I put in a request for him to be transfered to another high school with the school director who refused to let him switch until I said there is criminal behavior going on and it’s a hate crime and once she talked to him she switched him immediately but at that point he was on probation for missing to many days so he didn’t go in with the best record and he is still struggling to pass and failing math.All throughout school he never fought back or took up for himself.Things were going much better at the new school socially however but one day in math class a boy hit a girl in class and he took up for her without thinking and swung and hit the wrong boy who happened to be a star football player so that violated his probationand gave him a new charge if hitting the boy and they expelled him for 11 days until we went to a school board hearing with every member there and I told them the whole situation and I thought he still had ADHD and needed tested and that he had been through more than most adults could handle.They let him go back to school but the 11 days of expulsion also gave him more missed days so he was put on state probation.All the football players started threatening to beat him up and it was all too much.I was afraid he might become suicidal even so I took him out of school to home school,one of his requirements was to not fail any classes however he was blind to math and couldn’t pass so they violated him again and got him put out of the homeschool so I had to homeschool through another program after paying $800 for that one.He was depressed and couldn’t hardly focus or function but he continued to do his work and everything else probation required and I told the county probation officer as well as the state DC’s probation officer and others that he was a good kid and a smart kid but I thought he needed tested for ADHD or a learning disability and they even agreed with me but never tested him.I knew they should have tested him again because I had read about Wright’s Law and wrote it down and showed it to the probation officer but my grandson has always said he wanted to go to college and I feel like he could do well but he needs special help in math,memory,etc so On my own I started searching for help and I paid to have a very in-depth extensive test done by a school psychologist who gave me a book of results which confirmed what I had been saying.He does have mild ADHD and a definite learning disability.After the probation officer had us meet with the GED director he went ahead and went to adult Ed classes through the board of Ed and took his hi set and got his diploma.We went back to court and had a big problem he failed his drug test for marijuana so now he’s violated again for that so I took him four days a week to counseling for that for 3 months and it was an isolated incident and the probation officer had acted like it was about to be over but when we recently went to court the DA and probation officer said they wanted to keep him on probation until he’s 19 and demanded I pay for insurance for counseling since his just ran out since he’s 18 and they demanded his fafsa be filled out and he attend college,etc,etc so I said enough I want a lawyer,they were sooo mad!!! I think he had a traumatic childhood between his mothers illness and death,daily bullying,and struggling to be able to do school work with no help from anyone.H e has made mistakes but done everything requested he do.He doesn’t really go anywhere unless I take him.He doesn’t have a licence yet due to all of this but now suddenly the probation officer is pushing for him to get his licence and I told her I don’t think you want to pass him on the road yet since he hasn’t gotten driving experience yet due to this.I told her I was checking into colleges for fall but I want him to have a fair chance.If they demand he attend and pay for college and he happens to fail a class he’s violated again.I just think that’s toooo much pressure starting off in college on probation .I don’t understand why they want to keep him on this it seems like they want to set him up to fail.I don’t think it’s fair and not one person, not a teacher,school counslers,principal,school board,probation officers,dcs and even the juvenile court would not test to see why he was struggling so bad.But I have the test results now,a homeschool director and a school psychologist that said he scored at the top level on certain subjects but almost had discalcula and other issues.There was a huge gap in his learning that should have been caught and helped with but everyone failed this kid.I just don’t know what to do.I don’t know an attorney that I should call the only special Ed attorney in my county is running for the school board right now so he might not be helpful and this kid needs help so he can start fresh and be as successful as possible..Sorry so long.Im desperate for any thoughts,advice,or help!!! Thanks

    • Patty Mcmahan says:

      Also I just want to add that when I had him tested he scored equivalent of a 26 yr old COLLEGE graduate in some subjects but way below average in math and a few things.He has the ability to be a teacher,professor,psychologist etc if he gets the special Ed help he needs.Should I sue ?That’s what was suggested by a couple of people with authority or let it go.I just want him off of probation at this point so he can start out his adult life slot better than middle and high school years.Is there an attorney that can advice me as well.?

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