As discussed in our article on American with Disabilities Act (ADA) in our employment law section, Federal law imposes upon employers certain requirements to avoid discrimination against disabled employees.
That same act also applies to provision of educational services for public schools and some private schools. This article shall discuss the basic provisions of the ADA as it relates to education and also the Individuals With Disabilities Education Act (IDEA).
The goal and purpose of the two acts is to ensure that those who suffer various specified disabilities are allowed equal accommodated access to both employment and education. Anyone with disabilities who has sought employment in many third world countries or in such locales as Russia can testify as to the difficulty of intellectually capable individuals performing as self supporting members of society if such basic amenities as ramps and elevators or bathroom facilities are not made available. This writer well remembers a client who was truly brilliant and a gifted accountant who was unable to remain gainfully employed because of a six stair entrance way to a building. His frustration was palpable and the waste to himself and society obvious. This is very good law and those who oppose it often are ignorant of the various aspects of it that make it both reasonable and appropriate for the employer as well as the employee.
In terms of education, the same criteria applies. That same stairway, if prohibiting a student from attending class, is equally inappropriate and wasteful to the individual and society.
Both in terms of doing “what is right” and in terms of obeying the law, it is vital for institutions as well as individuals to learn the law.
History and Basics:
Congress enacted the Americans with Disabilities Act (ADA) to prohibit discrimination against those with disabilities. The statute, first enacted in 1990, applies in the areas of employment, public accommodations, transportation, services offered by governmental entities, and other areas. The act attempts to extend the types of rights provided under the Civil Rights Act of 1964 to those with disabilities. Included among the right in the ADA are provisions requiring educational institutions to provide accommodations to those with disabilities.
The initial success the disability rights movement achieved was enacting Section 504 of the Rehabilitation Act of 1973. Based on the models of previous laws that prohibited discrimination based on race or gender, Section 504 prohibits discrimination in programs or activities receiving federal financial assistance. It provides, “No otherwise qualified individual with handicaps in the United States … shall, solely by reason of her or his handicap, 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.” This provision was the first time the disabled were viewed as a class, similar to the race or gender classes. The disabled now had available enforcement under Section 504 to demand and enforce equal footing as a class under the law, and now had the ability to demand facilities to accommodate their disability.
Although this language offered some protection from educational discrimination for those with disabilities, Section 504 only applied in limited situations, where the program or building used federal financial aid in the form of grants. Those with disabilities still faced discrimination in the private sector, in private schools, and in those public facilities that did not use federal grant money. The disabled still faced a great many inaccessible schools; testing situations that did not offer alternatives for the deaf, the blind, or those with other types of disability; and other, similar barriers to equal education and access.
The Americans with Disabilities Act was passed on July 26, 1990, and signed into law by President George H.W. Bush. The intention of the Americans with Disabilities Act was to fill the gaps left in Section 504. The ADA builds upon the legal language within Section 504, so that applied together, both laws would cover almost any situation, public or private, that the disabled might encounter.
The ADA bars employment and educational discrimination against “qualified individuals with disabilities.” Title II of the ADA applies specifically to educational institutions, requiring them to make educational opportunities, extracurricular activities, and facilities open and accessible to all students. The ADA applies equally to public and private sector institutions, although the requirements for private schools and institutions are slightly less stringent.
Section 504 of the Rehabilitation Act of 1973 defines individuals with disabilities as those who have a physical or mental impairment which substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment.
This category includes physiological disorders such as hearing impairment, vision impairment, or speech impairments; neurological disorders such as muscular dystrophy or multiple sclerosis; psychological disorders such as mental retardation, mental illness, or learning disabilities. The legislative definition does not spell out specific illnesses or impairments because of the stated difficulty of ensuring an all-inclusive list.
The deciding factor in determining whether or not a person suffers from a disability under Section 504 is whether the impairment limits one or more major life activities, such as walking, performing manual tasks, seeing, hearing, speaking, breathing, learning and/or working. The ADA defines a disability as a, “physical or mental impairment that substantially limits one or more major life activity; a record of such impairment; or being regarded as having such impairment.” The ADA covers obvious impairments such as difficulty in seeing, hearing, or learning, as well as less obvious impairments such as alcoholism, epilepsy, paralysis, mental retardation, and contagious and noncontagious diseases, specifically Acquired Immune Deficiency Syndrome (AIDS).
The difference between the two laws, as they apply to educational institutions, is that Section 504 applies to the recipients of grant monies from the federal government, while Title II of the ADA applies only to public entities, with some applications to private sector entities. These entities include nursery, elementary, secondary, undergraduate, or postgraduate schools, or other places of education, day care centers, and gymnasiums or other places of exercise or recreation.
Hidden disabilities are considered to be any physical or mental impairments that are not readily apparent to others. They include such conditions as learning disabilities, allergies, diabetes, epilepsy, as well as chronic illnesses such as heart, kidney, or liver disease. There are over four million American students with disabilities, many with impairments that are not immediately known without medical or diagnostic testing.
Requirements Imposed Upon the Institutions:
Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA cover students in virtually any public school district, college, or university because they receive some form of federal assistance. Some private schools, colleges, and universities also receive such assistance, and students are protected under Section 504, but Title II does not apply to them. Both laws apply to all programs of a school or college, not simply academics. These include extracurricular activities such as band, clubs, or academic teams, as well as athletics and any activity that might occur off campus.
Neither law requires that all buildings be made fully accessible to students or teachers with disabilities. Those buildings constructed after the Section 504 regulation was issued in 1977 must be fully accessible. For older buildings, the law requires that the program or activity be made accessible. Often, classes or extracurricular activities are moved to another, more accessible, room to accommodate any disabled person who attends. An interpreter for the hearing-impaired or other types of assistance can be supplied.
One aim of the ADA was to make educational institutions more accessible for the disabled. This aim covers “reasonable accommodations” such as the following:
- Modification of application and testing
- Allowing students to tape-record or videotape lectures and classes
- Modification of class schedules
- Extra time allotted between classes
- Note takers
- Specialized computer equipment
- Special education
Accommodation also includes physical changes to an educational institution’s buildings, including the following:
- Installing accessible doorknobs and hard-ware
- Installing grab bars in bathrooms
- Increasing maneuverability in bathrooms for wheelchairs
- Installing sinks and hand dryers within reach
- Creating handicapped parking spaces
- Installing accessible water fountains
- Installing ramps
- Having curb cuts, sidewalks, and entrances that are accessible
- Installing elevators
- Widening door openings
Public accommodation is not required if a particular aid or service would result in either fundamental alteration of the services offered by the facility or if the accommodation would impose an undue burden. (See Southeastern Community College v. Davis, 442 U.S. 397 (1979)). Under the U.S. Supreme Court’s interpretation, Congress intended that undue burden and hardship must be determined on a case-by-case basis.
Section 309 of the Americans with Disabilities Act fills the gap regarding testing and examination not defined by Section 504 of the Rehabilitation Act of 1973 or Title II of the ADA. Any educational facility that receives federal money or is a public facility because it is a function of the state or local government as defined under Title II of the ADA is required to make any examination accessible to persons with disabilities. This requirement includes physical access to the testing facility, as well as any modification of the way the test is administered to assist the disabled. Modifications may include offering extended time, written instructions, or the assistance of a reader.
Many licensing and testing authorities are not covered by Section 504 or Title II. In these cases, a provision in the ADA was included to assure that persons with disabilities are not prohibited from or disallowed in any educational, professional, or other examination opportunity because a test or course is conducted in an inaccessible location or is offered without the needed modifications to assist the disabled student. Modifications may include offering an examination with the assistance of a reader, in braille or large print format, transcribers, or the proper computer equipment to help the disabled person.
Examiners may require proof of disability, but requests for documentation of the disability must be reasonable and must be limited to support for the modification or aid requested. The student or testing applicant may be required to bear the cost of providing such documentation for examination officials. Appropriate documentation would include:
- Letter from physician or psychiatrist or other qualified individual
- Evidence of prior diagnosis
- Evidence of prior accommodation
The ADA covers private elementary and secondary schools as places of public accommodation; i.e., the schools must be physically accessible to those with disabilities. But these schools are not required to provide free appropriate education or develop an individualized educational program for students with disabilities. Any private school that receives federal grant monies or any type of federal assistance would then fall under the Department of Education’s regulations regarding construction and alterations to the private school’s structures and buildings, where it can be conveniently and economically incorporated.
Post Secondary Notice:
Under Section 504, colleges and universities are not required to identify students with disabilities. They are required to inform all applicants of the availability of auxiliary aids, services, and academic adjustments. It is the student’s responsibility to make his or her condition known and to seek out assistance.
Individuals With Disabilities Education Act (IDEA):
In addition to the protections offered by the ADA and Section 504, another statute, the Individuals with Disabilities Education Act (IDEA), provides additional protection to those with disabilities in the context of education. The act was originally passed by Congress in 1975 but has been amended on several occasions since that time. The goals of IDEA are as follows:
- It ensures the disabled children are given a “free appropriate public education,” emphasizing special education and related services that meet the specific needs of each disabled child
- It ensures the protection of the rights of disabled children and their parents
- It assists states, local governments, educational service agencies, and federal agencies to provide for the education of disabled children
- It assists states to implement a statewide system of early intervention services for disabled infants and toddlers; It ensures that educators and parents have the necessary tools to improve educational results for disabled children
- It assesses and ensures the effectiveness of efforts to educate disabled children
Unlike ADA and Section 504, which are non discrimination laws, IDEA is instead a grant program. It requires states that accept federal funds to provide free, appropriate public education to disabled children. Although the means by which IDEA operates differs from the ADA and Section 504, each of these statutes serve similar purposes for the most part.
As many parents and students attest, in these days of budget cuts for most aspects of education and States so stressed that they seek every method to save money that can be conceived, “expensive” programs such as ADA are often short changed or simply ignored within the institution. This is not viciousness on the part of most administrators so much as a desperate effort to make ends meet. As so often in history, those with disabilities are the ones most likely to face lack of attention and commitment from those who are able. It is up to the student, the family of the student and the rest of us to assert strongly the protections of the law that apply and to compel the institutions to adopt the programs and procedures necessary to fully comply with the law.
The institutions have no choice in the matter. The law is mandatory. And for those running an institution, it must be noted that federal funding is dependent on strict compliance with the law.
In reality, most educators and administrators are as determined to provide the same educational opportunities to every student as they can. It comes down to priorities. When there is not enough money for critical classes or facilities for all students, many institutions find it hard to spend money to help a small minority of the students. The problem is not with the heart of most institutions but with the pocket book.
But as one teacher explained to this writer over ten years ago, long before the monetary crisis of the states, it is often not just lack of funds as lack of information and lack of will. The law does not allow ignorance to be a defense nor any evasion of the requirements.