Students

Non-Discrimination with Respect to Students

Americans with Disabilities Act of 1990 (ADA) as amended by the ADA Amendments Act of 2008

42 U.S.C. § 12,101 et seq.; 28 C.F.R. § 36.101 et seq.; 56 Fed. Reg. 35,544 (July 26, 1991)

See Public Law 110-325 for ADAAA

Title III of the ADA prohibits discrimination on the basis of disability in access to private colleges and universities and contains many of the same provisions as the Rehabilitation Act of 1973 (Section 504).  Requires reasonable accommodations (e.g., a modification or adjustment to the status quo inherent in the program or activity) to allow a qualified person with a disability to participate fully in the programs and activities of the university.  Participation must be in the most integrated setting possible.  See 42 U.S.C. § 12,181.  See also Disabled Students in Higher Education: Administrative and Judicial Enforcement of Disability Law, 22 J.C. & U.L. 989 (1996).  See 36 C.F.R. § 1191.1 et seq., 56 Fed. Reg. 35,408 (July 26, 1991) for Accessibility Guidelines for Buildings and Facilities and 42 U.S.C. § 225 and § 611 for Title IV of the ADA which covers telecommunications.  See also the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3601 et seq., which prohibits discrimination in housing on basis of disability.  See also Americans with Disabilities Act for a summary description of Title I of the ADA, which mandates non-discrimination on the basis of disability in employment.

ADA Amendments Act of 2008 (ADAAA)(Effective January 1, 2009)

In 2008, on Sept. 25, 2008 President Bush signed into law the ADA Amendments Act of 2008. The focus of this law is to clarify the definition of disability for purposes of employment, public entities and public accommodations. This law expressly overturns two Supreme Court decisions on the ADA:  Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The criticism of those two cases was that they had unduly narrowed the "broad scope of protection" provided by the ADA in defining the term disability.

In addition, the current EEOC regulations defining the term substantially limits (as significantly restricted) were found to be inconsistent with Congressional intent, and the EEOC was ordered to draft new regulations with a less demanding standard for an individual trying to establish a substantially limiting mental or physical impairment.

The ADAAA clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Under the amended law, employers may not consider mitigating measures when determining whether an individual is disabled, with the exception of glasses and contact lenses. An employer may be found to have discriminated against an individual if the individual can prove discrimination because of an actual or perceived impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. This last sentence does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. Employers are not required to provide reasonable accommodations to employees who are solely regarded as disabled and are not actually disabled. An impairment only needs to substantially limit one major life activity to qualify as a disability, and not just those activities that are of primary importance. Under the ADAAA the following are major life activities:

(A) IN GENERAL- For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) MAJOR BODILY FUNCTIONS- For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

For tips on what steps to take to be ready for the ADAAA see the Jackson Lewis Sept. 25, 2008 newsletter titled: President Bush Signs Landmark Amendments to the Americans with Disabilities Act. See also the Comparison chart on the ADA as construed by the Courts and as passed by the Senate. See also the AHEAD discussion on the amendments and a link to the Congressional Record.

Jenkins v. National Board of Medical Examiners, (6th Cir. Feb. 11, 2009)

The plaintiff in this case was a third year medical student seeking additional time on the US Medical Licensing Exam as an accommodation for a reading disorder. The National Board of Medical Examiners had denied his request, even though the plaintiff had received extra time on the ACT and MCAT exams. The plaintiff sued for injunctive relief and lost at the District Court level.  

In reliance upon Toyota Motor, the district court found Jenkins did not qualify as disabled. The Court of Appeals held the ADA amendments apply to this case as it was pending on appeal when the amendments became effective. The 6th Circuit remanded the case back to the district court to determine if slow and labored reading is a substantial limitation under the newly amended law.

Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34508 (June 17, 2008)

In this NPRM, the Department of Justice is announcing its intention to adopt standards consistent with Parts I and III of the 2004 ADAAG as the ADA Standards for Accessible Design. Under the Department's regulation implementing title III, places of public accommodation and commercial facilities are currently required to comply with the 1991 Standards with respect to newly constructed or altered facilities.
See  73 Fed. Reg. 34465 (June 17, 2008) for the NPRM to amend the ADA  title II regulation, which covers state and local government entities.

See the August 18, 2008 comments from ACE on the proposed ADA Standards for Accessible Design rules as they relate to colleges and universities. The comments submitted by ACE address the accommodation of service animals, ticketing for seating in accessible areas, use of temporary platforms or movable structures to provide accessible seating in assembly areas, restrictions on power-driven mobility devices in assembly areas, and stage accessibility.

Dept. of Justice Proposed Rules (advance notice: May 2008)
These proposed amendments to the DOJ regulations implement revised guidelines issued in 2004 by the Architectural and Transportation Barriers Compliance Board, as well as address other related issues. See the Title III proposed rules for private colleges and universities. The proposed amendments to the regulations address accessible swimming pools, miniature golf courses, boating facilities, amusement rides, and other recreational activities; accessible playgrounds; captioning of emergency announcements in large stadiums; identification of accessible hotel room features, and require guaranteed reservations of such rooms to the same extent as the entity guarantees reservations for others; the availability of accessible seating in public venues, such as theaters and sports stadiums, for purchase by people with disabilities; and  the availability of auxiliary aids, such as video interpreting services, to ensure that people who are deaf or have limited hearing can receive and convey vital information in medical and other settings. See also the DOJ press release.

Standards for Existing Facilities: Title III of the ADA requires alterations to existing facilities if the modifications are readily achievable; that is, able to be accomplished easily without much difficulty or expense.[1] Section 504 requires that all federally assisted programs and activities be readily accessible to and usable by individuals with disabilities.[2]  Major structural changes to existing facilities are not necessary if other methods are effective in achieving compliance with the readily accessible standard. [3]

When removing barriers, a public accommodation may follow the order of priorities that the regulations set forth.[4]  First, it would enable individuals with disabilities to enter the facility from public sidewalks, public transportation, or parking.  Second, it would provide access to those areas where goods and services are made available to the public. Third, it would provide access to restrooms.  Fourth, it would remove any remaining barriers.  These priorities are not mandatory and may be used flexibly by a public accommodation.[5]

However, if a public accommodation can demonstrate that barrier removal is not readily achievable, it must make its services, facilities or accommodations available through alternative methods.[6]  These alternative methods are also governed by the readily achievable standard.[7]  Regarding seating in assembly areas, the regulations state that facilities must provide for certain accommodations if they are readily achievable.  For instance, facilities with seating in assembly areas should have a reasonable number of wheelchair seating spaces or a portable chair to allow a companion to sit with wheelchair bound individuals.[8]

Standards for New Construction
A newly constructed public accommodation is one built after Jan. 26, 1993.[9] The standard for new construction under the ADA is the facility must be readily accessible to and usable by individuals with disabilities in accordance with the standards to the maximum extent feasible.[10] The standards for design and construction for new facilities and buildings are set forth in detail at 28 CFR Part 36, Appendix A . These standards (“Accessibility Standards”) constitute legally binding regulations. [11] The 504 standard for new construction is set forth at 35 CFR § 104.23 (a), and contains the same phrase, i.e. “readily accessible”. [12]

Title III of the ADA also requires that the facility be made readily accessible to those with disabilities to the maximum extent feasible when alterations are made to an existing facility. [13] If a facility is modified, altered or expanded, it must be done in accord with the current Accessibility Standards and the ADA Accessibility Guidelines (ADAAG). Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access will still be provided. [14]  Funds must be set aside if necessary to create accessible paths of travel to the bathrooms, telephones and drinking fountains serving the area. Alterations must meet the standard unless there is a technical infeasibility. Similarly, the 504 standard which is triggered by alterations to an existing facility is that it must be accessible to the maximum extent feasible.[15] Technical and scoping requirements for alterations are sometimes less stringent than those for new construction.[16]

Thus, when reviewing compliance for purposes of new construction, one must look to the Accessibility Standards and other related guidelines, which are very specific.

See 28 CFR Sect. 36.402(b)(1)) for reference to what is considered sufficient "alteration" to existing structures to trigger ADA remediation. Such things as remodeling, renovation, rehabilitation, reconstruction, changes or rearrangement of structural parts or elements and/or changes or rearrangement in the plan configuration of walls and full-height partitions will require ADA remediation.

Given these regulatory requirements, colleges and universities may consider developing a strategic plan for making the campus fully accessible, rather than responding in an ad hoc manner each time a student presents with a physical disability.

On Dec. 3, 2001 the OCR issued an opinion letter to Arizona State University on the question of ADA and Study Abroad.   The complete text of the opinion letter  is available on the NACUA website. The complainant in the case was a student at Arizona State who requested a sign language interpreter (the student is deaf) for the time period while he would be studying abroad in Ireland under an Arizona State University sponsored program. The General Counsel of the University reviewed the law and determined neither 504 or ADA required such an accommodation. The OCR agreed, and stated as follows:

"Upon reviewing the information provided by the complainant and the University, as well as current OCR policy information, and available case law, it is OCR's determination that Section 504 and Title II programs do not extend extraterritorially.  In other words, it is OCR's position that neither 504 nor Title II requires the University to provide auxiliary aids and services in overseas programs. Nor does either statute otherwise prohibit discrimination on the basis of disability in overseas programs. As such, we have concluded that the University's refusal to provide for and or pay for interpreter   services for the complainant while participating in the Study Abroad Program in Ireland is not prohibited discrimination under the laws OCR enforces."

Although Title II applies to public colleges and universities, the analysis would not differ under Title III, which is the section of the ADA applicable to private colleges and universities. The above OCR  letter addresses what is legally required of a  college or university in terms of making accommodations in a study abroad program. To what extent a particular college or university wishes to make study abroad programs accessible is a policy decision.

As the Courts do not always follow OCR rulings, it is worth noting that there is both case law and legislative history supporting the proposition that Titles II and III of the ADA and Section 504 of the Rehabilitation Act do not apply outside the territorial boundaries of the United States,  and therefore reasonable modifications are not legally required.  This is based on the holding in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991) (Aramco) which held that legislation enacted by Congress does not extend beyond the territorial jurisdiction of the U.S. unless there is evidence of clear legislative intent to the contrary.  Subsequent to the Aramco decision, Congress amended Title I of the ADA to expressly provide for extraterritorial application of the ADA in employment cases, however, no similar amendments were made to Titles II and III.

Consent Decree re University of Michigan Stadium (March 10, 2008)
This consent decree address steps the University will take to make the University football stadium more accessible for wheelchairs. The agreement was between plaintiff Michigan Paralyzed Veterans of America, plaintiff-intervenor U.S. Department of Justice, and defendant University of Michigan, and entered by the U.S. District Court for the E.D. Michigan.

 Selected Recent Case Law Under the ADA

Useful Web Sites:

NACUA ADA/FMLA Resources and Links (password protected)

U.S. EEOC addendum to "Executive Summary: Compliance Manual Section 902, Definition of the Term Disability."

U.S. EEOC "Instructions for Field Officers: Analyzing ADA Charges After Supreme Court Decisions Addressing ‘Disability’ and ‘Qualified’."

U.S. Department of Education Office for Civil Rights (OCR), "Auxiliary Aids and Services for Postsecondary Students with Disabilities: Higher Education’s Obligations Under Section 504 and Title II of the ADA.

updated 11/8/08 to add CUA compliance partners and also more info on ADAAA

updated 1/26/09 to add text on existing facilities and new construction

updated 2/10/09 to add link to ADA Q and A page
2/18/09 added Jenkins

updated 2/25/09 to add NACUA resource page
compliance box updated 5/13/09 RB