The Journal of College and University Student Housing - Volume 39, No. 2 & Volume 40, No. 1 - 217

Invisible Disabilities and the Student Conduct Process

professionals must be aware of federal regulations and mandates. That said, legalities allow
a level of flexibility for institutional agents to
facilitate education. The end goal is to learn
how to operate within the legal framework in
an educationally effective manner that complements institutional culture and organizational
goals (Bickel & Lake, 1999; Lake, 2011). To be
comfortable addressing invisible disabilities,
educators need a baseline understanding of
the pertinent legal framework.
This framework concerning disability
derives from Section 504 of the Rehabilitation
Act of 1973, which prohibits agencies—both
public and private colleges and universities—
from discriminating against anyone because
of disability, a mandate strengthened by the
Americans with Disabilities Act of 1990.
The Americans with Disabilities Act Amendments Act (2008) broadened protection in
several ways. The act defines an individual
with a disability as a person who has “a physical or mental impairment that substantially
limits one or more major life activities; has a
record of such an impairment; or is regarded
as having such an impairment” (ADA, 2008,
Sec. 12102, para. 1); the last part of this definition—“is regarded as having an impairment”—began to be more broadly interpreted
so that students need only show that the perception of a disability can lead to discrimination (“perception” being an easier legal
standard to prove) (Bowman, 2011). Mitigating factors, such as the presence of medication that effectively treats a disability, cannot
be said to preclude the presence of a disability.
Finally, the definition of a “qualified disability” was expanded to provide increased coverage (Burke, Friedl, & Rigler, 2010). These

changes require institutions to be precise and
consistent when identifying and addressing
students with disabilities. Moreover, educators cannot consider someone to be disability-free because they are receiving treatment
and are symptom-free. The institution has an
ongoing obligation to reasonably accommodate such students.
The right to reasonable accommodation
sometimes stymies the student accountability
efforts of educators. Practitioners misinterpret
the law or fear legal scrutiny of their professional practice unduly and do not consider
the educational or developmental steps necessary to hold students accountable. Therefore,
educators should understand that institutional
policies apply equally to both students with
and without disabilities. The Office of Civil
Rights (2001) asserted that institutions should
expect all students to abide by student codes of
conduct and other published institutional policies. While the purpose of the conduct process
cannot be to reveal a disability and issue a
sanction against a student’s disability, educators should nevertheless address instances of
alleged misconduct involving students with
disabilities (Office of Civil Rights, 2001).
Pavela (2008) posits that institutions of
higher learning must be consistent with their
conduct processes as they apply to students
with invisible disabilities. The existence of a
disability does not affect the conduct process
unless the institution fails to provide lawfully
requested reasonable accommodations, which
interferes with a student’s ability to adhere
to the code of conduct, or the institution fails
to consider mitigating situational factors as
it addresses the issue (Office of Civil Rights,
1999). In sum, it is important that instituV o l u m e 4 0 , No. 1 • 2 0 1 3

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The Journal of College and University Student Housing - Volume 39, No. 2 & Volume 40, No. 1

Table of Contents for the Digital Edition of The Journal of College and University Student Housing - Volume 39, No. 2 & Volume 40, No. 1