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Disability civil rights law today continues to be shaped by troubling precedent created in initial decisions of the Supreme Court under the Rehabilitation Act. This article explores the first of these decisions, Southeastern Community College v. Davis, demonstrates Davis’ continuing impact, and analyzes how this impact may be addressed. Davis was a suit brought by a hearing-impaired student who had been refused accommodations and denied admission to the College’s nursing program. Critical litigation decisions on behalf of Davis at the trial court did not contest the College’s failure to provide accommodations that are common today, such as sign interpretation, or the College’s assessment that Davis could not function adequately with such accommodations. The Court thus assumed as given the College's refusal to provide Davis with accommodations and supposed that Davis could not participate safely in the clinical portion of the nursing program. The Court then concluded that her participation would require fundamental alterations in the nursing program that could not be justified as reasonable modifications. This article contends that the Davis decision perpetuated a fundamental confusion between accommodations—adjustments or aids needed for an individual to perform capably—and modifications—changes in existing programs, policies, or structures. Further, confusing accommodations and modifications risks construing individuals as either demanding unjustified modifications in policies or requesting special accommodations that are personal privileges for themselves. Presenting evidence drawn from the analysis of subsequent reported district court and appellate court cases citing or relying on cases citing Davis, the article then shows how these confusions persist nearly thirty years after the enactment of the Americans with Disabilities Act (ADA). The result is that many courts fail to assess actual capabilities of people with disabilities.
23 U.D.C. L. Rev. 183 (2020).