Professor Katherine Macfarlane, Director of the College of Law’s Disability Law and Policy Program, spoke with the American Bar Association Committee on Disability Rights about her article, “The Higher Education Accommodation Mistake,” which was recently published in the Georgetown Law Review.
The article argues that Wynne v. Tufts University School of Medicine—which gave higher ed institutions an extra-textual layer of deference when they deny reasonable accommodations—was wrongly decided.
In the Q&A, Macfarlane notes that “Wynne applies the affirmative defense of fundamental alteration to a medical school’s decision to deny a student’s reasonable accommodation request regarding the format of multiple-choice questions. In considering whether the defense applied, it added a layer of deference to an institution’s description of what is and isn’t fundamental about its program, instead of leaving the decision to the finder of fact. In essence, institutions are left to determine what is fundamental, ensuring that whatever they label fundamental will suffice to defeat a disability-based accommodation request.”
Macfarlane also notes that the Wynne-style deference has crept into primary/secondary education and workplace litigation. “Scholars have suggested that because the Wynne standard is easy to apply, it should reach cases in which academic employees have sought accommodations in their workplace. Wynne is also often cited in the K-12 context. Simply put, a standard that is easy to apply is not necessarily one that is right,” said Macfarlane.
The Higher Education Accommodation Mistake, 219 Geo. L.J. 114 (2025).