Legal Information: Section 504 and ADA

At the postsecondary level, determining eligibility for services follows a different process from the K-12 process. Students with disabilities at the K-12 level may be covered under the IDEA, but the IDEA does not apply to the postsecondary level. Instead, qualified students with disabilities may be eligible for protections under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA). “Section 504” act dictates that reasonable accommodations, including academic adjustments, be provided to all persons with disabilities who participate in federally funded programs. The Americans with Disabilities Act of 1990 (ADA, P.L. 101-336) extends protection to all persons with disabilities. The ADA requires organizations to make reasonable accommodations for individuals who have known physical or mental disabilities and who are “otherwise qualified.”

It is important to note that the IDEA is an educational entitlement act, while Section 504 and the ADA are civil rights laws that are designed to prohibit discrimination on the basis of disability. The postsecondary standard for eligibility requires that the disability is current and substantially limits a major life activity (e.g., walking, hearing, seeing, learning). Not every impairment qualifies as a disability that is protected under the ADA because not every impairment is substantially limiting to a major life activity. The court in E.E.O.C. v. Harvey L. Walner & Associates, 91 F.3d 963, 996 (7th Cir. 1996), described the proper disability determination as follows: The Americans with Disabilities Act defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities. Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This includes people who have a record of an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability, but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability. The existence of impairment or the diagnosis of a medical condition in itself does not necessarily constitute a disability. Whether a substantial limitation upon a major life activity exists, depends upon an analysis of (1) the nature and severity of the impairment, (2) the duration of the impairment, and (3) the permanent or long-term impact of impairment. 29 C.F.R. Sec. 1630.2(j) (Heyward, 1998, pgs. 3:5-3:6). Therefore, while a student may have a disability, that does not necessarily mean that he or she will require accommodations in order to access his or her education. Providing evidence of the extent to which the disability causes a substantial limitation may be more critical than a statement of the disability.

Americans with Disabilities Act Amendments of 2008

Effective January 1, 2009, the ADA and the Rehabilitation Act will be amended in considerable ways.

The following points summarize the significant changes relevant to understanding these guidelines:

• Postsecondary institutions may not consider the effects of mitigating measures such as medication, devices (except contact lenses and glasses) and “learned behavioral or adaptive neurological modifications” in determining whether a condition substantially limits a major life activity. Yet, consideration of the effects of mitigating measures is not barred when assessing the need for and type of accommodation.
• The term “substantially limits” remains, but the phrase may not be interpreted to require a “severe” or “significant” restriction of a major life activity.
• Short term conditions that are expected to last six months or less do not qualify as disabilities.
  Conditions that are episodic in nature qualify as disabilities if they substantially limit a major life activity in their active state.
• Conditions that are in remission still qualify as disabilities, if the underlying condition in its active state would qualify as a disability.

The following guidelines are provided in the interest of assuring that documentation of a specific disability is appropriate to verify eligibility and to support requests for accommodations, academic adjustments and/or auxiliary aids:
The implications for persons who are seeking a college education are as follows:

• Admissions: No quotas may be placed on the number of disabled students accepted into a program.
  No tests or other measures may be required for admission that have a disproportionate adverse impact on individuals unless they have been validated as a predictor of academic success in the education program or activity in question.
• Treatment: Students with disabilities must be afforded equal opportunity to participate in and benefit from all post-secondary education programs, including education programs and activities not operated wholly by the participant.
• Programs and activities involving disabled students must be provided in the most integrated setting possible.
• Academic Adjustments: Modifications to academic requirements must be made to ensure that they do not discriminate against disabled students. This does not mean that standards fundamental to a given program must be altered.

Rules may not be imposed that limit a disabled student’s ability to complete a course of study.

Schools must ensure that disabled students are not denied the benefits of, excluded from participation in, or otherwise discriminated against with regard to educational program or activity due to the absence of auxiliary aids. Although auxiliary aids may be available, the College does not necessarily provide other devices or services of a personal nature.

Financial and Employment Assistance: Financial aid or work-study employment must be offered in a non­discriminatory manner.

Non-Academic Services: Disabled students must have an equal opportunity to participate in all physical education and athletic activities if otherwise qualified to do so.

Counseling services including academic, personal, and career, must be provided in a non-discriminatory manner. Counselors may not direct qualified disabled students towards more-restrictive careers than they would qualified non-disabled students with similar interests and abilities.

The College must provide accessible, comparable, and convenient housing.

Organizations that receive significant assistance from the College must select members in a non-discriminatory manner.