What Does “Substantially Limits” Really Mean?
Many schools wrongly assume that unless a student is failing, they’re not substantially limited—even though that’s not what the law says.
A Denver, Colorado, student was denied an Individualized Education Program (IEP) after his teacher commented, “He’s getting better grades than I did in high school.” Despite facing diagnosed disabilities—Dyslexia, ADHD, auditory and visual processing, and others—the school determined these don’t impact his academic performance. Hence, no IEP was offered.
When the student’s parent pointed out that grades alone don’t determine disability eligibility—and that her 9th-grade child was still writing at a first-grade level—the teacher responded that many students struggle with writing, and that the student’s ability to rewrite with assistance showed he could advocate for himself and succeed.
Neither the teacher nor his colleagues understood that the teacher's personal anecdote is legally irrelevant—or that their understanding of “substantially limits” runs counter to Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and Americans with Disabilities Act (ADA).
What Does “Substantially Limits a Major Life Activity” Really Mean?
Under 28 C.F.R. § 35.108, "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual" and "shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA." Section 504 of the Rehabilitation Act uses the same definition of disability. With Individuals with Disabilities in Education Act (IDEA), these laws help ensure that schools cannot impose narrow criteria.
This includes—but isn’t limited to—activities such as the following:
Reading
Writing
Concentrating
Learning
Communicating
Important: A student does not have to be completely unable to perform these activities to be protected under the law. It is enough that the student’s disability makes the task harder, slower, more exhausting, or more painful than it is for students who don’t have disabilities.
What Schools Get Wrong
Many schools wrongly assume that unless a student is failing, they’re not substantially limited—even though that’s not what the law says.
From 28 C.F.R. § 35.108:
"An impairment does not need to prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. . . . The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, in making this assessment, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for substantially limits applied prior to the ADA Amendments Act. . . . The comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence. . . . The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures."
EEOC and DOJ Confirm the Bar for “Substantial Limitation” Is Low
ADA Amendments Act of 2008 (ADAAA) made it easier—not harder—for individuals to be recognized as having a major life activity substantially limited by a disability.
The U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have repeatedly emphasized that:
Scientific or statistical evidence isn’t required
Success does not disqualify someone from having a disability
In fact, the DOJ recently confirmed in a settlement agreement that students who have ADHD, anxiety, dyslexia—even “mild” dyslexia—were substantially limited in major life activities and eligible under Section 504. This reflects, 28 C.F.R. § 35.108 in that the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most students in the general population usually will not require scientific, medical, or statistical evidence. As EEOC put it (see below), a commonsense assessment—"based on comparing an individual’s ability to perform a specific major life activity (which could be a major bodily function) with that of most people in the general population“—should be enough to make a determination. The determination should be made on the act, not the result—on the work required of a student to achieve a result, rather than on the result.
From EEOC’s "Notice of Rights Under the ADA Amendments Act of 2008":
"The limitations from the impairment no longer have to be severe or significant for the impairment to be considered substantially limiting."
From EEOC’s "Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008”:
"To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” All of these tests of substantial limitation were deemed by Congress to be too demanding. Rather, determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity (which could be a major bodily function) with that of most people in the general population."
From DOJ’s recent agreement with Milwaukee Montessori School:
"Student One . . . was later diagnosed with ADHD, which substantially limits one or more major life activities. . . .
"Student Four . . . has a mental impairment that substantially limits one or more major life activities. . . .
“Student Five was diagnosed with ADHD and Anxiety, and Student Six was diagnosed with Adjustment Disorder. These impairments substantially limit one or more major life activities of the children. . . .
"Student Seven . . . was later diagnosed with Autism. Student Seven's impairments substantially limit one or more major life activities. . . .
“Student Eight . . . was diagnosed with Anxiety and Depression . . . [h]e was later diagnosed with Autism, ADHD, and OCD. These impairments substantially limit one or more major life activities. . . .
"Student Nine . . . had been previously diagnosed with ADHD and mild Dyslexia . . . These impairments substantially limit one or more of Student Nine's major life activities. . . .
"Student Ten . . . was later diagnosed with ADHD, Generalized Anxiety Disorder, and Pathological Demand Autism, which substantially limit one or more major life activities."
Good Grades Don’t Disqualify Students
As exhibited by the Denver, Colorado, teacher and his colleagues, a common misconception is that a child with decent or even amazing grades isn’t eligible for special education.
This is not true.