The Rehabilitation Act of 1973
Title V of the Rehabilitation Act of 1973 is generally regarded as the first national “civil rights” legislation for people with disabilities.
Section 504 is a program access statute. It requires that no otherwise qualified person with a disability be denied access to, the benefits of, or be subjected to discrimination by any program or activity provided by any institution or entity receiving federal financial assistance. (It is this mandate that has promoted the development of disability support service programs in colleges and universities over the last 20 years.) Subpart E of Section 504 deals specifically with institutions of higher education. It requires that an institution (public or private) be prepared to make appropriate academic adjustments and reasonable modifications to policies and practices in order to allow the full participation of students with disabilities in the same programs and activities available to non-disabled students.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) of 1990 recently reinforced the provisions of the Rehabilitation Act by requiring that all public facilities, services, and communications be accessible to persons with disabilities and that auxiliary aids and services by provided unless an undue burden would result.
Who is protected?
Qualified individuals with disabilities are protected under the Americans with Disabilities Act. The definition contains two parts. First, the person must be an individual with a disability as defined under the ADA; second, that person must also be qualified.
An individual with a disability is defined as someone who has, had, or is treated as having, an impairment that substantially limits a major life activity. For instance, a person who uses a wheelchair may have an impairment, such as a spinal cord injury, that substantially limits a major life activity such as walking or working. Individuals who have survived cancer are protected under the second part of the definition because there is a record of an impairment that substantially limits a major life activity. That record of an impairment cannot be used against the individual. Finally, someone is considered to be an individual with a disability even if they do not now have and have never had an impairment that substantially limits a major life activity, so long as they are treated as they have one. For instance, a student may be a slow speaker. If a faculty member assumes that the slow speech indicates the student has a mental impairment and treats the student differently, the slow speech indicates the student may fall within this definition. This is so because the person is being treated as if he or she has an impairment that substantially limits a major life activity.
Persons who are associated with disabilities are also protected under the ADA. For instance, a university cannot refuse to accept a student who meets the eligibility requirements for admission just because the student’s spouse or sibling is diagnosed with AIDS.
Not considered an individual with a disability is a person who is an illegal substance abuser. Homosexuals, per se, are also not considered individuals with disabilities under the ADA. Finally, if a limitation is not due to a physical or mental impairment, the individual would not be considered to have a disability. For instance, if someone cannot read because they have never been taught to read, they would not fall within the protections of the ADA.
Being a person with a disability, however, does not mean that one is automatically protected under the ADA. Persons with disabilities must also be qualified. In the academic context, to be qualified means that a person with a disability must meet all of the eligibility criteria to participate in a university’s programs and services and perform at the standards required to stay in those programs. For instance, if a person with a disability does not have the GPA, ACT, or SAT scores required to gain admittance and is not accepted, a university is not guilty of discrimination on the basis of disability because that person is not qualified. However, the university must provide persons with disabilities access to programs to enable them to meet the standards required to stay in a program if it will not cause an undue hardship as defined on a case-by-case basis.
Standard of access
The standard for access to programs and services under the ADA for public institutions is that all programs must be readily accessible to, and usable by, qualified persons with disabilities. In addition, qualified students with disabilities must be provided with equal services in as integrated a setting as possible. The determination of what is an equal and integrated setting will be made on a case-by-case basis. What is appropriate for one person with a specific impairment may not be useful or appropriate for another person with the same impairment.
- From an architectural standpoint, this requirement does not mean that every building has to be accessible. However, every program must be accessible.
- A University can be creative about meeting the program accessibility requirement. For instance, if a university faculty member offers office hours in a location inaccessible to someone who uses a wheelchair, access can be made available through alternative means, such as over the telephone, through the mail or through email, or by meeting the student in an accessible location.
Academic standards not affected
The ADA does not require universities to lower academic standards or fundamentally alter the nature of the programs provided. For instance, if a nursing student with a disability cannot participate in the clinical component of the nursing program, and the clinical component is an integral part of the nursing degree program, the university is not required to waive the requirement in order for the student with a disability to get a degree. Since the clinical component is a fundamental aspect of the nursing program, waiving it would fundamentally alter the nature of that program, something the university is not required to do. Accordingly, refusing to fundamentally alter the nature of a program is not discrimination under the ADA.
Equally effective communications
One of the most overlooked parts of the Americans with Disabilities Act in the “equally effective communications” requirement. This requirement states that public universities must provide communications to persons with disabilities which are equally effective as those provided to students without disabilities.
- The university is required to provide materials in alternative formats. Students with visual impairments, for example, may ask that written handout materials be provided in such formats as audio cassettes, large print books, computer diskettes or Braille. Since the university responds on a case-by-case basis, faculty do not have to automatically transform handout materials into different formats in anticipation of such requests. However, faculty must work to provide the alternative format as quickly as possible once the request is made. Assistance in providing materials in alternative formats can be obtained through the Hawley Academic Resource Center.
- The university must provide sign language interpreters for special events or public meetings upon request. All announcements regarding campus programs and activities must include a statement inviting persons with disabilities to provide advance notification of accommodation needs.
- Universities need to notify the public of events via radio, or phone information lines and newspapers so that blind and/or deaf individuals will be informed of events.
- The equally effective communications requirement extends to university social events as well. For instance, sign language interpreters should be provided, if requested, for an awards ceremony, etc.
- The ADA provides a specific definition of the term “qualified interpreter.” This definition is included to reduce the inappropriate use of someone who “knows a little sign” as an interpreter. A qualified interpreter is defined as someone who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.Auxiliary aids and services are required to ensure communication accessibility. This includes, but is not limited to: qualified interpreters, assistive listening systems, decoders, open and closed captioning, TDD’s, qualified readers, audio recordings, taped texts, Braille materials, large print materials, materials on computer disk, speech synthesizers, computer terminals, scanners, communications boards, and acquisition or modification of equipment or devices.
- There must be no exclusion of people with disabilities on the basis of disability. It is illegal to place caps on the admission of students with disabilities to institutions or to programs/activities that are open to the general population of current or potential students. However, students with disabilities are to be judged by the same admissions standards which apply to all students.
- There may be no discrimination through contract. Neither public nor private entities may elude their responsibilities for compliance with the ADA by contracting out portions of their programs/activities to another entity.
- People with disabilities are entitled to participate in the most integrated settings possible. If special programs are established, the individual with a disability may still choose to participate in the general program. People with disabilities have the right to refuse an accommodation.
- It is discriminatory to use eligibility criteria that screen out, or tend to screen out, an individual with a disability or a class of individuals with disabilities unless such criteria can be shown to be necessary to the provision of the activities or services. The institution may impose criteria that relate to safety risks, but those criteria must be shown to be based on actual risk and not on stereotypes or assumptions about the abilities of people with disabilities.
- It is discriminatory to fail to make reasonable modifications in policies, practices, and procedures to avoid discrimination on the basis of disability unless the public or private entity can demonstrate that modifying the policy or practice would fundamentally alter the nature of the activities or services offered. The burden of proof that the modification would involve a fundamental alteration rests with the institution, and the mandate to modify policies/practices/procedures extends beyond classroom/curricular issues.
- The mandate to make reasonable modifications in policies included altering existing rules to allow for the presence of service animals. A service animal is any guide dog, service dog, or other animal that is specially trained to perform tasks for the benefit of an individual with a disability. In general, people with disabilities have a right to the use of service animals in a broad range of circumstances.
- Surcharges cannot be imposed solely on people with disabilities to cover the cost of compliance with the ADA.
- A public or private entity may not discriminate against an individual with a disability in the offering of examinations or courses relating to licensing or certification for educational, professional, or trade purposes.All private and public entities involved in licensure, certification, or credentialing programs are required to assure nondiscrimination for people with disabilities by providing architectural and programmatic accommodations, including adaptive testing and the provision of auxiliary aids and services.
- It is illegal for a public or private entity to refuse to serve people with disabilities, or to serve them differently due to their disabilities, because its insurance company conditions coverage. For example, it would be illegal for an institution to restrict students with low vision or limited mobility from a science laboratory because they believe their insurance company costs may increase as a result of the presence of these individuals.
- It is illegal to discriminate through action or treatment against an individual who has testified, assisted, or participated in any manner in the bringing of complaint under the ADA.
Both public and private institutions remain covered under Section 504 of the Rehabilitation Act of 1973. The ADA makes it clear that nothing within Title III is meant to lessen or limit the right to accommodation provided under any more stringent state or federal mandate.