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Touro Law Review

Touro Law Review

Adam M. Samaha

Abstract

Fundamental alteration limits are now remarkably prevalent in disability rights law, even if the underpinnings of those limits are not well understood. This article explores the spread, specification, and normative problematics of those limits on disability accommodation and modification claims, with special attention to claims involving education. Often legal sources are vague regarding the content of fundamental alteration limits, but the article suggests that leading options include preservation of a program’s (1) nature, (2) details, (3) purposes, or (4) quality, including training and competition. Although several of these options seem unproductive, directing attention to quality training and fair competition among students probably can yield coherent guidance to decision makers. Furthermore, focusing on quality and competition taps into persistent concerns that disability rights will make programs “too easy” for disabled participants, not just “too costly” for program providers. In practice, however, the resulting issues may be either too easy or too fundamental for the legal system itself to manage. If legal decision makers largely defer to program provider choices, including what qualifies as adequate training and the proper domains for student competition, then these limits on disability rights become largely controlled by providers. The resulting rights would have little value. If instead other decision makers freely second-guess those provider choices, then presently we have no good assurance the resulting judgments will be normatively well-grounded or even competent. As a fix, perhaps we can design legal institutions to ensure that a suitable group of participants collaborates on the best answers. But it is also possible that reengineering disability rights law into a mandatory charter for those structures would count as a fundamental alteration that is supposed to remain optional. Either way, orienting fundamental alteration limits toward program quality and fair competition raises difficult questions that current rights-enforcement systems might be inadequate for answering. Understanding that inadequacy is necessary to fully assess disability rights law and its constraints, unaltered

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