Summary of Federal Laws
CUA Compliance Partners
Non-Discrimination with Respect to Students
The Rehabilitation Act of 1973 (Section 504)
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.
Notice of Interpretation, 77 Fed. Reg. 14972, March 14, 2012, Discrimination on the Basis of Disablity in Federally Assisted Programs and Activities. This notice contains DOE's interpretation of 34 CFR 104.23 as it relates to new construction and alteration on or after Sept. 15, 2010. For new construction and alteration after that date, the DOE will interpret the 504 regs to permit use of standards consistent with DOJ's Title II regulations until the 504 regulations are revised The entity may also use the current Uniform Federal Accessibilty Standards currently in the 504 regulations. See the DOJ web page on Title II and Title III regulations and dates for compliance. Use of the 2010 Title II ADA Standards will not be required as means of compliance with Sec. 504 until the Department revises its Sec. 504 regulations to formally adopt the 2010 Title II ADA Standards in lieu of UFAS. For institutions subject to Title II of the ADA as well as Sec. 504, OCR states that for new construction and alterations commenced on or after March 15, 2012, the 2010 Title II ADA Standards will be used by OCR in its enforcement of Title II regulations.
NonDiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, FInal Rule, 75 Fed. Reg. 56236, Sept. 15, 2010. This final rule was finally published a few months after it was posted online by the Justice Department on July 23rd. This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991.
See the Pillsbury Client Alert on this issue, from August 2, 2010, titled New ADA Regulations Update Standards and Broaden Requirements for Public Accommodations. Also helpful is the summary of the new 2010 ADA Standards for Accessible Design.
Argenyi v. Creighton University, Case No. 8:09CV341, U.S. Dist. Court, District of Nebraska, decided 12/19/13. In this case, a medical student with a hearing disability brought suit under Title III of the ADA and Section 504 of the Rehabilitation Act. The plaintiff does not know sign language, but does read lips and uses cued speech. He also relies on Communication Access Real Time Transcription, or CART services. His physician recommended CART services along with other accommodations. Argenyi paid for certain CART services and interpreters on his own for the first two years of med school when the school refused to provide the accommodations. He took a leave when the University would not allow interpreters in some of the clinical settings. While the court denied his request for the University to reimburse him for the money he expended on accommodations in years 1 and 2, the court granted his motion for injunctive relief for years 3 and 4 of medical school and ordered as follows:
Beginning in the fall semester of 2014, and continuing until his graduation or the discontinuation of his enrollment as a medical student, Creighton University will provide Michael Argenyi with auxiliary aids and services for his effective communication, including Communication Access Real-time transcription (CART) in didactic settings and sign-supported oral interpreters in small group and clinical settings.
Velzen et al. v. Grand Valley State University, (U.S. Dist. Ct. Western District Michigan), October 10, 2012. Issue presented was can student bring guinea pig to dorm room as emotional suport animal to accommodate for depression and heart condition. Laws at issue are Fair Housing Act and Rehabilitation Act and in part the regulations under the ADA. Defendants relied upon the exclusion for emotional support animals under ADA regulations at 28 CFR 35.104. The court cited a memo dated Feb. 17, 2011 sent out by a HUD to Fair Housing and EO Regional Directors for the proposition that the plaintiff might have a claim for violation of the Rehab Act.
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.
Access This: Why Institutions of Higher Education Must Provide Access to the Internet to Students with Disabilities, by Nina Golden, Volume 10:2:363 Vanderbilt J. of Entertainment and Tech. Law (2008)
Students with disabilities must be provided with an equal opportunity to participate in athletics, including intercollegiate, club and intramural athletics.
ADA Checklist for Existing Facilities (for compliance with 1991 regulations)
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.
CCR updated CFR links 6/30/15