Legal Issues

Assuring that individuals with disabilities can participate in higher education can be argued on ethical grounds. Some simply consider it to be the right thing to do. Others are more responsive to legal mandates. Administrators and staff should be aware of the key legislative mandates that address disability-related issues in postsecondary institutions.

The Conference Room does not provide legal advice. Consult your campus legal counsel, ADA/504 compliance office, or disabled student services office regarding legal issues on your campus.

The following federal legislation is reviewed in this area of The Conference Room:

  • Section 504 of the Rehabilitation Act of 1973
  • Americans with Disabilities Act (ADA) of 1990
  • Section 508 of the Rehabilitation Act, as amended in 1998

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act of 1973 was designed to ensure that any program or activity receiving federal financial assistance does not discriminate on the basis of disability for otherwise qualified persons. A person with a disability is defined as any person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has record of such an impairment, or (3) is regarded as having such an impairment. Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks.

Examples of disabilities that can impact a student in postsecondary education include, but are not limited to, AIDS, cancer, Cerebral Palsy, Diabetes, Epilepsy, head injuries, hearing impairments, learning disabilities, loss of limbs, Multiple Sclerosis, Muscular Dystrophy, psychiatric disorders, speech impairments, spinal cord injuries, and vision impairments. Some of these conditions are visible, while other conditions, such as learning disabilities or psychiatric disorders, are "invisible." Factors such as fatigue, pain, or medication side effects can also impact an individual's ability to perform specific life and academic-related tasks. In all cases, postsecondary institutions have a responsibility to provide program access to qualified students with disabilities.

Almost all postsecondary institutions must comply with Section 504, since even private institutions receive federal funds of some type.

Americans with Disabilities Act (ADA)

When the Americans with Disabilities Act (ADA) was enacted in 1990, many provisions of Section 504 were extended to public and private companies who do not receive federal funding. The Americans with Disabilities Act of 1990 requires that people with disabilities be provided equal access to public programs and services. According to civil rights law, no otherwise qualified individuals with disabilities shall, solely by reason of their disabilities, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in these programs. The ADA upholds the standards set forth in Section 504 of the Rehabilitation Act and extends them to employment practices, communications, and all policies, procedures, and practices that impact the treatment of students with disabilities.

According to the Americans with Disabilities Act of 1990, "no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity of a public entity." Making a service or program accessible is the responsibility of the service or program. For example, a student who uses a wheelchair and has grades, recommendations, and other qualifications for admission to medical school cannot be denied access to the program because the school does not have an elevator in one of the buildings. Access extends past the classroom to all programs and services made available to the public, such as athletic programs, student services, and extracurricular offerings.

Reasonable accommodations may include, but are not limited to, assigning aides, providing written communication in alternate formats, modifying tests, relocating services to accessible locations, and altering existing facilities. For example, a student who is blind might speak test answers into the microphone of a tape recorder, or a scribe might write them down. An assistant could read the test questions out loud, or a screen-reading device would make the print accessible through Braille or speech output. Reasonable accommodations do not include personal devices such as hearing aids, wheelchairs, and glasses.

When people think of the ADA they often think of elevators in buildings, reserved spaces in parking lots, and lifts on buses. However, the ADA accessibility requirements also apply to programs offered on the Internet. As the United States Department of Justice clarifies ("ADA Accessibility," 1997), "Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well." At the postsecondary level, the content of websites must be accessible to visitors with disabilities. For example, a blind student using a screen reader and voice synthesizer must be assured access to the content of web pages in text format.

People who feel they have been discriminated against can approach the campus ADA compliance officer and/or file a lawsuit. For example, people with disabilities have filed complaints with the Office of Civil Rights and/or sued postsecondary programs because they were denied the opportunity to take a course, to participate in a co-op activity, or to submit an assignment in an alternative form. In some settlement agreements postsecondary institutions have agreed to a make a broad range of programs and facilities more accessible to people with disabilities, including academic programs, dining and living facilities, and social aspects of campus life. Professional testing programs have also been required by the Department of Justice to provide sign language interpreters, assistive listening devices, and alternative formats to students taking these exams, as well as preparation courses for the examinations. Enforcement agencies encourage informal mediation and voluntary compliance.

Section 504 also specifies that universities may not limit the number of students with disabilities admitted or make preadmission inquiries as to whether or not an applicant has a disability. In addition, universities cannot use admission tests or other criteria that inadequately measure the academic qualifications of students with disabilities because special provisions to take the tests were not made, exclude a qualified student with a disability from any course of study, or establish rules and policies that may adversely affect students with disabilities.

Section 508 of the Rehabilitation Act

To ensure that the federal government would not perpetuate the discrimination that the vocational rehabilitation system was designed to mitigate, on August 7, 1998, Congress amended Section 508 of the Rehabilitation Act (19 U.S.C. 794d) to expand the federal government's responsibility to provide electronic and information technology that is accessible to, and usable by, people with disabilities.

Section 508 requires federal departments or agencies that develop, procure, maintain, or use electronic and information technology to ensure that the electronic and information technology is accessible. Section 508 requires that individuals with disabilities seeking information or services from a federal department or agency have access to and use of information and data comparable to that provided to individuals without disabilities. For example, government websites must provide access for blind users who use speech output systems. If any video clips are used, they must have captions and descriptions. Visual images should also be audio-described so that people who are blind or deaf have equal access.

In response to Section 508, the Access Board created accessibility standards for information technology. Although developed for federal agencies, they have been adopted by some postsecondary institutions to assure the accessibility of information procured, developed, and used on campus.

Conclusion

To sum up, federal legislation requires that we accept otherwise qualified students with disabilities into our academic programs. Additionally, we should work with students to identify and implement reasonable accommodations that will grant them access to educational opportunities. There are experienced staff on campus to assist instructors and other staffin understanding the effects of disabilities and of state, federal, and other relevant legislation. With your cooperation, and that of students, accommodation strategies can be determined and implemented successfully.