Private Law Theory

ABSTRACT
A university may deny a disabled student’s reasonable accommodation request if the university decides that the accommodation would fundamentally alter an academic program. In evaluating the fundamental alteration defense, courts defer to universities’ academic expertise regarding their own programs. This Article argues that deference is misplaced. First, it traces the origins of the fundamental alteration defense to pre-Americans with Disabilities Act cases that deferred to state defendants’ decisions regarding state programs. Second, it identifies how Wynne v Tufts University School of Medicine, a First Circuit decision interpreting Section 504 of the Rehabilitation Act, created its own standard for reviewing how the fundamental alteration defense applies to requests for reasonable accommodation in higher education. The Wynne standard is now the leading approach in cases involving both public and private universities. Third, it demonstrates that Wynne imported its deferential standard from an unusual context-qualified immunity. The result is a test that grants super-deference to institutional decisions that result in accommodation denials. This Article contends that it is time to reexamine Wynne, especially in light of the scrutiny qualified immunity has recently received. If Wynne is incorrect, then a court assessing a fundamental alteration defense must meaningfully review accommodation denials without granting super-deference to academic institutions. More accommodations will be provided to the students who need them – and as a result, those students will be less likely to leave school.

Macfarlane, Katherine, The Fundamental Alteration Fallacy (August 8, 2024).