In Celebration of the ADA’s 30th Anniversary, Reviewing the Power of the ADA in Higher Education Settings
The Americans with Disabilities Act of 1990 (ADA) is a powerful law that safeguards the civil rights of individuals with disabilities in a variety of settings, including in postsecondary educational institutions. This blog post discusses the application of the ADA to higher education.
Students with Disabilities in Higher Education
Although institutions of higher learning were once inaccessible for many individuals with disabilities, in the three decades since the passage of the ADA, the number of students with disabilities attending U.S. colleges and universities has seen a steady increase. The U.S. Department of Education estimates that in 2016, 19% of undergraduate students and 12% of graduate students had disabilities. The ability to access and benefit from higher education is vital to long-term success, considering the broad array of opportunities made available to those with postsecondary degrees. The ADA has played a key role in making those opportunities accessible for people with disabilities.
Younger students who have disabilities are entitled to special education and related services while they are enrolled in the K-12 public school system. Those services are provided through something called an Individualized Education Program (IEP) and must be provided to qualifying public school students under a federal law called the Individuals with Disabilities Education Act (IDEA).
When students who have IEPs graduate from high school or age out of the public K-12 school system, they are no longer covered by IDEA and are no longer entitled to special education and related services. However, if these students choose to pursue higher education, they will continue to benefit from disability-related protections under the ADA.
A higher education institution may not discriminate on the basis of disability in any of its programs, policies, or services. For an example of this, read this recent settlement agreement between Northern Michigan University and the U.S. Department of Justice. The agreement states that a University policy penalizing student expression of suicidal or self-destructive thoughts did not reflect legitimate safety requirements and constituted discrimination against students with mental health disabilities in violation of the ADA. As a result of the settlement agreement, the University had to rescind that policy.
Title II of the ADA applies to public institutions, such as state colleges and universities. Title III of the ADA covers private entities, including most private postsecondary schools. There is an exception to Title III for private religious entities, which means religious institutions of higher education may not be covered by the ADA. However, if those schools receive federal financial assistance, they are covered by Section 504 of the Rehabilitation Act, which includes protections similar to those offered under the ADA.
Postsecondary educational institutions include all types of education and training programs following high school graduation, such as colleges and universities, graduate schools, community colleges, and vocational and trade schools. Whether your career goal is to become a biomedical engineer, certified public accountant, automotive mechanic, or barber, your postsecondary program is likely covered by the ADA or Section 504.
To gain the protections of this law, students and prospective students must meet the definition of disability under the ADA. For more information about the ADA’s definition of disability, read ACDL’s recent blog post, Disability in the Workplace: Is my disability protected under the ADA? The definition is the same for Title II and Title III of the ADA.
If an individual meets the essential requirements for admission to a postsecondary program, the program cannot refuse to admit the applicant on the basis of disability. Generally, postsecondary schools are not allowed to ask about an applicant’s disability status before admitting the applicant to the program. However, after a program has admitted a student, it may ask about the student’s disability when considering a student’s request for a modification or auxiliary aid or service (discussed further below).
Some institutions of postsecondary education require students to take and achieve a certain score on a standardized examination (SAT, ACT, GMAT, GRE, etc.) to be admitted to a given program. It is permissible for schools to use these tests, so long as the tests are measuring an applicant’s achievement or aptitude, rather than identifying and disqualifying them based on their disability. Additionally, disability-related testing accommodations must be provided, so long as the accommodations do not fundamentally alter the examination or create an undue financial or administrative burden on the school. Students must request testing accommodations ahead of time and may need to provide documentation of their disability in order to be provided with accommodations.
Auxiliary Aids and Services
Both Title II and Title III of the ADA require institutions of higher learning to provide “appropriate auxiliary aids and services” to individuals with disabilities unless doing so would result in an undue financial hardship on the school or a fundamental alteration of the program. Auxiliary aids and services are methods of making aural information available to people who are deaf or hard of hearing and making visual information available to people who are blind or have low vision or other visual disabilities. Examples of auxiliary aids and services in the higher education context are sign language interpreters, Computer Assisted Real-Time Transcription (CART) services, captioned videos, note-takers, large print materials, Braille materials, and videos with secondary auditory program (SAP). It is the school’s responsibility to provide these aids and services, and the student cannot be asked to pay for them.
Auxiliary aids and services must provide effective communication. Under Title II, higher education institutions must give primary consideration to the auxiliary aid or service that the student requests. Under Title III, higher education facilities are required to consider the student’s request and must provide effective communication. One auxiliary aid or service will not necessarily provide effective communication for all students with sensory disabilities. For example, a student who is deaf and whose primary language is American Sign Language (ASL) will likely need an ASL interpreter and note-taker for classes, while a student who became deaf after acquiring language and who did not learn sign language will likely need CART and other captioning services.
Under the ADA, postsecondary schools must make reasonable modifications to policies, practices, and procedures as needed to make programming accessible to students with disabilities. For example, a college professor may modify testing practices to provide an individual with a disability with extended test-taking time, or a university may modify its policies to allow building access to a service animal. Another modification that may be considered reasonable in the higher education context is substituting specific courses required for the completion of a degree program.
Institutions of higher learning are not required to make modifications that would fundamentally alter the nature of the service, program, or activity or give rise to an undue financial or administrative burden.
For a recent example of reasonable modifications in the higher education setting, see the settlement agreement between Rider University and the U.S. Department of Justice (DOJ) resolving issues about reasonable modifications to the food services programs to allow students with food allergies to have an equal opportunity to enjoy the food plans and food services.
Requesting Reasonable Modifications and Auxiliary Aids and Services
Unlike in the K-12 setting, where schools have an independent obligation to identify students with disabilities and create programs that meet their individual needs, higher education students who would like auxiliary aids and services or reasonable modifications must choose to disclose their disability and inform the appropriate institutional representative (e.g. the school’s ADA or 504 Coordinator, a disability services office representative, or an administrator, dean, or professor) in a timely manner that they need an aide or service or reasonable modification. The school may require documentation of the disability and an explanation of the need for the aid, service, or reasonable modification when not obvious.
Although many higher education institutions use newer facilities, some colleges and universities are located in very old or historic buildings that may not be physically accessible to all people.
Higher education facilities constructed after January 26, 1992, must comply with ADA accessibility regulations. If the school receives federal funding, its buildings constructed or altered after June 1977 must meet Section 504 accessibility requirements.
Buildings constructed before 1977 are not required to be made accessible if the school can ensure that its students with disabilities are able to access the full range of its programs through other means, such as relocating classes to an accessible building.
For a recent example of facility accessibility in the higher education context, take a look at this settlement agreement signed in February 2020 between North Dakota State University (NDSU) and the U.S. Department of Justice regarding addressing inaccessibility at NDSU’s sports complex.
As students with disabilities complete their K-12 careers and consider the pursuit of higher education, there are some best practices that will help make the transition a smooth one and ensure postsecondary programs are accessible. Consider taking the following steps as you prepare to begin a higher education program:
1. Collect Information and Records from Your High School
As your time in high school nears its end, begin collecting important documentation and records. Ensure you have a copy of your most recent IEP or 504 plan, as well as your transcript and other official school documents. Students with IEPs must be provided with something called a Summary of Performance by their high school. The Summary of Performance summarizes the student’s academic achievement and functional performance, and includes recommendations on how to assist the student in meeting postsecondary goals. Make sure you have a thorough and accurate Summary of Performance before leaving high school. This and other documents will be useful as you consider which auxiliary aids and services or program modifications to request from your higher education institution.
2. Meet with Your School’s Disability Services Office
After applying and being accepted to a postsecondary school, meet with your school’s disability services office or designee. Most postsecondary schools have a department, office, or staff member who is designated to provide support to students who have disabilities. Identify this resource at your higher education institution and set up a meeting. This will help you understand what resources and support are available and make a plan for how you will utilize them. They may also be able to explain a standard procedure for requesting aids and services or reasonable modifications.
3. Proactively Ask for Aids and Services, Modifications
If you know you will need certain services or accommodations, be proactive about requesting them. Unlike in the K-12 setting, postsecondary schools will not have regular meetings to discuss the needs of students with disabilities, and teachers will not be expected to follow a student’s individualized plan. In higher education, it is the responsibility of the student to ask the disability resource office or designee to approve reasonable accommodations. Then, arrangements are made for the provision of the aid or service or modification. Make sure to ask for these before the course starts, so the school has enough time to consider your request and arrange for the modification or service to be provided on the first day of classes.
4. Dispute Resolution
If you believe your school is not following the ADA, and you have tried discussing your concerns with staff at the disability services office or the school’s ADA coordinator and have not had success, you may need to file a grievance or complaint.
The ADA requires postsecondary institutions to have an internal grievance procedure for students to appeal decisions about disability-related accommodations or issues. You should be able to learn more on your school’s website or by asking the disability resource office about how to file a grievance.
Another option is to file a complaint with the Office for Civil Rights of the U.S. Department of Education. Complaints to this office must be made within 180 days of the event or within 60 days of the completion of a grievance proceeding with your school.
You could also file a complaint with the U.S. Department of Justice.
Finally, you can consider filing a lawsuit. A lawsuit alleging a violation of the ADA should be filed in a U.S. District Court within two years of the date of the discrimination. It is recommended that you be represented by a lawyer when filing a lawsuit, although you have the option to represent yourself. Filing a lawsuit is likely the most expensive, contentious, and time-consuming dispute resolution option.
The ADA prohibits your school from retaliating against you for requesting aids or services or reasonable modifications or for engaging in dispute resolution. If you have experienced negative consequences as a result of your self-advocacy, your school may have committed a violation of ADA.
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