The Questionable Legality of Effectively Denying Students with Certain Medical Disabilities Access to the "Privileges and Advantages" of In-Person Classes

While I have argued that there are no privileges or advantages to in-person classes this fall because of the COVID-19 restrictions (masks, fixed seating, inability to participate in group activities, etc.), the University has strongly proferred the opposite, arguing that students expect and are paying for in-person classes and that online classes are inferior and not worth as much tuition. Given that argument, it is difficult to deny that from the university's perspective, students who are able to attend class in-person are deriving certain privileges and advantages that are not available to students who are unable to attend class in-person.

Now from a legal perspective, this would not be a problem if all students were equally able to freely make the decision about whether to attend classes in-person or online.

A legal problem arises, however, if students with a medical disability are not able to access the same advantages as those without such a medical disability. The Americans with Disabilities Act states that: "It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity."

Thus, if the School offers the advantage of in-person education to some students but students with a particular medical disability are unable to attend in-person classes, this would seemingly constitute a violation of the Americans with Disabilities Act.

In fact, students with certain medical conditions--as defined by the Centers for Disease Control and Prevention--are arguably unable to attend in-person classes because it would put them at significantly increased health risk. It therefore appears to me that such a student would have a reasonable argument that the School is discriminating against them in violation of the Americans with Disabilities Act.

Let's say, for example, that a student has restrictive lung disease. This puts them at severe risk for a life-threatening COVID infection. The School would have only three defenses against such a lawsuit.

First, it could argue that restrictive lung disease is not a disability as defined in the Act. This would clearly not be a reasonable argument since restrictive lung disease is clearly a medical disability.

Second, it could argue that the student with restrictive lung disease has been given the opportunity to attend classes in person, but simply chose not to do so. This might be a winning legal argument, but for a School of Public Health to have to resort to such an argument demonstrates how inappropriate its decision was to institute a system of hybrid classes in the face of the COVID-19 pandemic. In public health, we do not argue that people have a free choice when making that choice would put them at substantial risk of disease. In fact, that is completely contrary to the principles of public health that we are trying to teach to our students.

Third, it could argue that moving to an online-only system would "fundamentally alter" the nature of the education being offered. This might also be a winning legal argument. However, here, the School would be in trouble because if it makes that argument in a courtroom, then it would essentially be insisting that online-only education is fundamentally inferior and would then open the door for every student to sue the School for a refund of its tuition from last spring as well as for a reduction of tuition for students who choose the online option this fall.

In the end, I am not arguing that denying students with certain medical disabilities access to in-person classes is necessarily a legal violation. However, this analysis does demonstrate that protecting the health of only the least vulnerable is legally questionable and from a public health perspective, ethically untenable.

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