Summary of Federal Laws                                                     

Students                                                                             

CUA Compliance Partners

EO Officer

Director of Disability Support Services

General Counsel

Associate VP for Adminstration and Facilities Operations

Non-Discrimination with Respect to Students

The Rehabilitation Act of 1973 (Section 504)

29 U.S.C. § 794 et seq.,  34 C.F.R. § 104.1 et seq., with regulations for postsecondary education institutions at 34 C.F.R. 104.41-47, 45 C.F.R. § 84.1 et seq.; 46 Fed. Reg. 40,686 (Aug. 11, 1981)

The Rehabilitation Act prohibits discrimination on the basis of disability at any federally-funded institution.  This covers admissions, recruitment, programs and services.  This law requires program accessiblity.  If an existing facility is not accessible, redesign of equipment, reassignment of classes or other services to accessible buildings is an alternative to new construction.  Newly constructed facilities must be readily accessible to persons with disabilities.  Each facility or part of a facility which is altered in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by persons with disabilities.

A grievance procedure must be established for students and at least one employee must be designated to coordinate compliance.  See 34 C.F.R. § 104.7.  Notices of the institution's policy must be provided to the students, and must also be included in recruitment materials.  Note, however, that grievance procedures need not be established with respect to complaints from applicants for admission.

OCR Letter to University of Michigan (October 26, 2007) This letter addresses the accessibility of the University of Michigan football stadium by individuals with disabilities. Specifically, seven areas of concern are cited, and an action plan required. The seven areas are the number and location of seats designated for persons using wheelchairs; wheelchair accessible routes to and within the stadium, and the accessibility of stadium restroom facilities, concession stands, souvenir shops and parking.

ADA Accessibility Guidelines for Buildings and Facilities, Architectural Barriers Act (ABA) Final Rule

69 Fed. Reg. 44083, July 23, 2004 ; Access Board web page with full text of new guidelines

In this final rule, effective September 21, 2004, The Architectural and Transportation Barriers Compliance Board (Access Board) is revising and updating its accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA). These guidelines cover new construction and alterations and serve as the basis for enforceable standards issued by other Federal agencies.

The ADA applies to places of public accommodation (this includes private educational institutions), commercial facilities, and State and local government facilities. The ABA covers facilities designed, built, altered with Federal funds or leased by Federal agencies. As a result of this revision and update, the guidelines for the ADA and ABA are consolidated in one Code of Federal Regulations part, 36 CFR Part 1191. The Access Board has sought to harmonize the Guidelines with industry standards, particularly ANSI A117.1 standard and the International Building Code.

Advisory notes in the rule are provided for informational purposes only, and are not mandatory. The play areas and recreational facilities guidelines have been integrated into this final rule. Neither the proposed rule nor the draft final rule included provisions for multiple chemical sensitivities or electromagnetic sensitivities. Comments were received that urged the Board to address the acoustical performance of buildings and facilities, in particular school classrooms and related student facilities. The preamble mentions ASA/ANSI S12.60-2002, Acoustical Performance Criteria, Design Requirements and Guidelines for Schools and notes that this standard is voluntary unless referenced by a code, ordinance, or regulation.

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.

To What Extent does 504 or the ADA  Apply to Study Abroad Programs?

On Dec. 3, 2001 the OCR issued an opinion letter to Arizona State University on this question. See the complete text of the opinion letter 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. 

On a note of caution, see  Bird v. Lewis and Clark College, 303 F. 3d 1015 (9th Cir. 2002). In this case, while the Court did not find an ADA violation (assuming without deciding that the law applied overseas to a study abroad program) the Court did uphold a jury verdict that the College had breached its fiduciary duty to the student. The College was found to have promised the student that the overseas program would accommodate her disability. While the college made a good faith effort to accommodate the student, on some occasions accommodations were not made.

Further Resources: 

The U.S. Department of Education: Office of Civil Rights Pamphlet: entitled: The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973. 

ADA Q and A