The Higher Education Accommodation Mistake
**Relevance to Labor & Employment Practice:** This article highlights a critical legal development in disability accommodations under the **Americans with Disabilities Act (ADA)** and **Section 504 of the Rehabilitation Act**, particularly in higher education. The **Wynne v. Tufts University School of Medicine** precedent (First Circuit) established an overly deferential standard for evaluating "fundamental alteration" defenses, which has since been misapplied across disability accommodation cases. The piece signals a need for courts to reject this flawed approach, aligning with Supreme Court precedent that denies special deference to defendants in determining fundamental program aspects. For labor and employment practitioners, this underscores the importance of challenging overly broad interpretations of "undue hardship" or "fundamental alteration" in workplace accommodation disputes under the ADA.
### **Jurisdictional Comparison and Analytical Commentary on *The Higher Education Accommodation Mistake*** Katherine Macfarlane’s critique of *Wynne v. Tufts University School of Medicine* and its progeny highlights a critical divergence in judicial deference toward disability accommodations in higher education across jurisdictions. In the **U.S.**, courts applying the *fundamental alteration* defense under the **Americans with Disabilities Act (ADA)** and **Section 504 of the Rehabilitation Act** have historically deferred to institutional judgments, mirroring the *Wynne* approach—a stance Macfarlane argues is legally unsound given the Supreme Court’s rejection of special deference in ADA cases (* PGA Tour, Inc. v. Martin*, 532 U.S. 661 (2001)). Meanwhile, **South Korea’s** approach under the **Act on the Prohibition of Discrimination Against Disabled Persons** (2008) and related regulations tends to prioritize substantive equality, requiring institutions to demonstrate that accommodations would impose *undue burden* rather than merely asserting programmatic integrity—though enforcement remains inconsistent. Internationally, the **UN Convention on the Rights of Persons with Disabilities (CRPD)** (Art. 24) and jurisprudence from the **European Court of Human Rights** (e.g., *Enver Şahin v. Turkey*, 2
This article highlights a critical tension in disability accommodation law, particularly in higher education, where courts have misapplied the "fundamental alteration" defense under the Rehabilitation Act and ADA by borrowing the deferential standard from qualified immunity jurisprudence (*Wynne v. Tufts University School of Medicine*, 97 F.3d 665 (1st Cir. 1996)). The author argues that this deference undermines the statutory rights of disabled students, as the Supreme Court has repeatedly rejected special deference for ADA defendants when assessing fundamental program requirements (*Southeastern Community College v. Davis*, 442 U.S. 397 (1979); *US Airways, Inc. v. Barnett*, 535 U.S. 391 (2002)). Practitioners should scrutinize courts’ reliance on *Wynne*’s framework, as it may improperly shield institutions from accountability under anti-discrimination laws. The article urges a return to the ADA’s plain text, which requires individualized assessments without unwarranted judicial deference.
Symposia | GLJ
Analysis of the article for Labor & Employment practice area relevance: The article highlights key legal developments in the labor movement, including erosion of discrimination protections, a hostile and underfunctioning NLRB, and mass terminations of federal employees, which challenge workers' rights in both private and public sectors. The Georgetown Law Journal's symposium aims to examine ways to redress systemic racial injustice in labor law through an Afrofuturist lens, with a focus on reimagining future labor advocacy. This event signals a growing concern about the need for innovative approaches to address the intersection of labor and civil rights in the modern era. Relevance to current legal practice: The article underscores the importance of considering the intersection of labor and civil rights in light of recent setbacks to workers' rights. It suggests that labor advocates and practitioners must adapt to a changing landscape by exploring new approaches to address systemic racial injustice and advocate for workers' rights.
The Georgetown Law Journal’s symposium on the intersection of labor rights and civil rights in the modern era reflects a critical juncture in U.S. labor advocacy, particularly as executive actions, regulatory erosion, and systemic inequities threaten foundational protections. Comparatively, South Korea’s labor framework, while more centralized under state oversight, has seen recent reforms addressing unionization and workplace discrimination, yet it lacks the same level of public, interdisciplinary symposia addressing systemic injustice. Internationally, the European Union’s robust anti-discrimination directives and collective bargaining mandates offer a structural counterpoint, emphasizing institutionalized protections absent in U.S. discourse. The symposium’s Afrofuturist lens and interdisciplinary approach signal a novel U.S. strategy to reimagine labor advocacy, offering a model for global dialogue on intersecting rights crises. (2-3 sentences)
The Georgetown Law Journal’s symposium on the intersection of the labor movement and civil rights presents critical implications for practitioners. Practitioners should anticipate heightened scrutiny of executive orders impacting DEI initiatives and mass terminations as potential violations of public policy exceptions to at-will employment, particularly under precedents like *Lindemann v. General Dynamics* or *Terry v. Ash*, which protect against terminations contravening public policy. The symposium’s focus on systemic racial injustice via an Afrofuturist lens may also inform novel arguments linking statutory protections under Title VII or the NLRA to broader civil rights advocacy, offering a reimagined framework for combating erosion of worker rights. This convergence of historical analysis and future advocacy signals a pivotal shift in litigation strategies for protecting labor rights amid contemporary challenges.