An Overview of the Rights and Responsibilities of Students1
By Jeanne M. Kincaid, Esq.
Congress passed Section 504 of the Rehabilitation Act in 1973. It is a civil rights statute designed to prevent discrimination against individuals with disabilities. It provides that:
No otherwise qualified individual with disabilities in the United States . . . shall, solely by reason of his/her disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . . (Emphasis added) 29 USC 794.
The Americans with Disabilities Act (ADA), which was modeled after Section 504, was signed into law in July 1990, but most provisions did not take effect until January 26, 1992 (i.e., Title II – governmental services; Title III – public accommodations) and July 26, 1992 (i.e., Title I – employment provisions).
What is the major difference between Section 504 and the ADA?
Section 504 only applies to entities that receive federal financial assistance. Whereas the ADA covers most establishments whether privately owned or assisted with state and/or federal funds.
If a college or university is in compliance with Section 504, will it automatically be in compliance with the ADA?
In most instances, yes. However, to the extent that the ADA provides greater protections to individuals with disabilities, the college/university must comply with the ADA.
How is “otherwise qualified” defined under the ADA and Section 504?
Students must be able to meet the technical and academic qualifications for entry into the school, program or activity in order to be considered otherwise qualified.
Who is an “individual with a disability?”
A person who:
- Has a physical or mental impairment which substantially limits a major life activity;
- Has record or history of such an impairment; or
- Is regarded as having such an impairment.
It is also unlawful to discriminate against someone solely because of his/her association with an individual with a disability.
What are “major life activities?”
Major life activities include, but are not limited to, walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks.
What are some examples of disabling conditions?
All conditions which entitled a student to receive special education while attending grade school (e.g., mental retardation, learning disabilities, serious emotional disturbances), AIDS, cancer, alcohol or drug addiction (so long as the student is not a current user of unlawful drugs), environmental illness, attention deficit disorder, diabetes, asthma, physical disabilities, behavior disorders, etc., so long as the condition substantially limits a major life activity.
What are the obligations of students with disabilities?
In order to enjoy the protections of Section 504 and the ADA, the student has an obligation to self-identify that she/he has a disability and needs accommodation. The institution may require that the student provide appropriate documentation at the student's expense in order to establish the existence of the disability and the need for accommodation.
What are the institution's obligations under Section 504 and the ADA?
The institution must provide reasonable accommodations to the student's known disability in order to afford him/her an equal opportunity to participate in the institution's programs, activities, and services (including extracurricular activities). A college or university may not discriminate against an individual solely on the basis of disability.
What are some examples of reasonable accommodations that an institution might be expected to provide its students who have disabilities?
An institution of higher education must provide a student academic adjustments to ensure that she/he receives an equal opportunity to participate. Examples of academic adjustments may include:
- Additional time to complete tests, coursework, or graduation;
- Substitution of nonessential courses for degree requirements;
- Adaptation of course instruction;
- Tape recording of classes; and
- Modification of test taking/performance evaluations so as not to discriminate against students with sensory, manual, or speaking impairments (unless such skills are the factors the test purports to measure).
An institution of higher education must also provide auxiliary aids and services to persons with disabilities such as:
- Qualified interpreters2, notetakers, computer aided transcription services, written materials, assistive listening systems, closed caption decoders, open and closed captioning, TDDs;
- Readers, taped texts, audio recordings, large print and Brailled materials;
- Acquisition or modification of equipment.
An institution is not required to provide attendants, individually prescribed devices, readers for personal use or study or other devices of a personal nature. A college or university is only obligated to provide tutorial services to students with disabilities in the same manner it provides such services to non-disabled students. The institution may choose the methods by which the auxiliary aids will be supplied so long as the methods offered provide the student an equal opportunity. The institution may not charge the student for necessary accommodations.
Must the institution provide the student all the academic adjustments and auxiliary aids she/he requests?
No. Public institutions must give primary consideration to the communication preferences of the student with a disability. Moreover, both public and private institutions have the responsibility to provide effective accommodations. Nonetheless, a college or university is not required to provide academic adjustments or auxiliary aids and services if such provision would fundamentally alter the nature of the program or when the academic requirements are essential to a program of study or to meet licensing prerequisites. An auxiliary aid may also be denied when the provision of such would place an “undue burden” on the institution. An undue burden is defined as “significant difficulty or expense.”3
Is it unlawful for the institution to terminate the enrollment of a student who poses a direct threat to others?
No. An institution is not required to accept or retain a student who poses a direct threat to the health or safety of others. “Direct threat” is defined as a “significant” risk of “substantial” harm that cannot be eliminated by reasonable modifications or the provision of auxiliary aids or services. The assessment of whether a student poses a direct threat of harm must be individualized and based on current medical knowledge or on the best available objective evidence.
Are there any restrictions on pre-admission inquiries?
Yes. The institution may not generally conduct pre-admission inquiries as to whether an applicant has a disability.4 If a student takes an admission test under nonstandard conditions, the institution may not devalue the student's score or treat the applicant in an adverse manner solely on this basis.
What limitations are there on taking disciplinary action against students for drug and alcohol abuse?
An institution is entitled to apply its general disciplinary policies with students who are chemically dependent with respect to the possession, use and sale of drugs and alcohol on campus, so long as students are treated fairly and consistently. A student, who is a current user of illegal drugs, is not considered to be a qualified individual with a disability. However, if the individual has successfully completed or is enrolled in a supervised treatment program and is no longer using illegal drugs, the individual is protected from discrimination under Section 504 and the ADA. Additionally, it is a violation of federal law to erroneously regard a student as being addicted to illegal drugs.
What are the procedural safeguards of Section 504 and the ADA?
Institutions of higher education must provide students with notice of the nondiscrimination requirements of Section 504 and the ADA. Colleges and universities must adopt and publish grievance procedures that provide the student with due process. Under Section 504, institutions must have a Section 504 compliance officer. Public institutions must also have an ADA compliance officer and conduct a self-evaluation to determine their compliance with the ADA.
May the institution take adverse action against an individual for asserting his/her rights under Section 504 and the ADA?
No. The institution may not discriminate against any individual because of his/her exercise of these rights or against individuals who participated in an investigation pursuant to these regulations. It is important to note that an individual claiming discrimination need not prevail on the underlying claim in order to prove retaliation.
What are the accessibility requirements of Section 504 and the ADA?
Facilities constructed prior to June 3, 1977 need not necessarily be made accessible so long as the program or activity, viewed in its entirety, is readily accessible to persons with disabilities. However, the student must be afforded an equal opportunity to enjoy the full range or services offered by the institution. If an institution modifies one of these buildings, it must make the modifications accessible, to the maximum extent feasible. Buildings constructed after June 3, 1977 must be readily accessible and usable to individuals with disabilities. All programs and services must be provided in a manner that affords the student maximum integration with his/her non-disabled peers.
1 Copyrighted 1994. Reproductions permitted only with the express consent of the author.
2 Qualified interpreters must be able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.
3 The U.S. Department of Education's Office for Civil Rights, which enforces Section 504 complaints against all educational institutions and ADA complaints against public institutions, has not ever, to the best of all this author's knowledge, found the provision of interpreters to pose an undue burden.
4 An institution is permitted to inquire about the existence of a disability to rectify past discrimination or for voluntary affirmative action purposes subject to strict regulatory requirements.
Jeanne M. Kincaid, Esq.
101 Varney Road
Center Barnstead, NH 03225