Reasonable Accommodations: An On-line Resource for Employers and Educators

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The ADA and Section 504:
Legal Mechanisms for Achieving Effective Supported Education

By Jeanne M. Kincaid, Esq.

Although advocates of students with disabilities have often relied on the power of persuasion to encourage institutions of higher education, including private and public four-year institutions, junior and community colleges, and trade and technical colleges/institutes to admit and accommodate such students, passage of the Americans with Disabilities Act (ADA) now gives advocates a stronger legal handle on ensuring meaningful participation of students with psychiatric disabilities in colleges and universities. In addition to the ADA, another often overlooked legal vehicle to ensure that necessary supports are provided to students with disabilities attending institutions of higher education is Section 504 of the Rehabilitation Act of 1973.1

This article is intended to provide the reader with a basic understanding of Section 504 and the ADA as applied to postsecondary institutions serving students with psychiatric disabilities. It is hoped that consumer awareness of rights and responsibilities will enhance participation of individuals who have long been shut out from the mainstream of life.

Who is protected by Section 504 and the ADA?

Persons diagnosed with a psychological disorder are protected by Section 504 and the ADA if their condition substantially limits a major life activity. Learning is listed within both Acts’ regulations as a major life activity. Individuals who meet this requirement are entitled to: a) be free from discrimination; and b) receive reasonable accommodations to enable them to enjoy an equal opportunity to participate in all aspects of college life. Individuals who have a record of having such a disability (e.g., had a previous hospitalization or were misdiagnosed) are protected from discrimination on the basis of that record. Finally, individuals who are regarded as having a disability that substantially limits a major life activity, but who in fact either have no disability or have a disability that is not substantially limiting, are protected from discrimination because of this misperception. Therefore, a student with a psychiatric disability, who is otherwise qualified, may not be denied admission to an institution of higher education solely because of his/her disability. Section 504 specifies that an individual with a disability is considered otherwise qualified if s/he meets the technical and academic standards requisite for admission into the institution’s program.2

Of tremendous importance is the ADA’s coverage of testing and licensing authorities, such as the Educational Testing Service (ETS). Title III of the ADA requires that such entities modify their examinations and provide necessary adjustments and aids to ensure that the examination measures the candidate’s skills as opposed to his/her disability, unless the test is designed to measure such skills. Therefore, candidates with psychiatric disabilities are entitled to accommodations such as extended exam time, a distraction-free environment, additional breaks, and in some cases, testing by an alternative format, if warranted by the candidate’s disability.

Must I disclose the existence of my disability?

No. Section 504 specifically prohibits a postsecondary institution from making inquiries to determine whether an individual has a disability.3 Whether or not an individual should disclose the existence of a disability in order to enhance one’s admission into a program is a judgment call which the consumer must make, after considering all the institution's requirements for admission.

An institution may, however, inquire about a person's disability after admission in order to ensure that it provides the student with necessary accommodations. It is extremely important that students understand that an institution is only required to provide accommodations to the known disabilities of a student. Thus, in order to be protected by these civil rights laws, the student must identify him/herself to the appropriate person(s) on campus if the student needs accommodations or auxiliary aids and services. The student maintains the right, however, to limit disclosure. For example, a student may authorize disclosure of her disability to only her mathematics professor, for that is the class that is most difficult for her. In such a circumstance, it would be improper for the institution to disclose information to other faculty and staff whom the student has not authorized such disclosure. On the other hand, should the student limit disclosure, she takes the risk of not receiving accommodations she might otherwise be entitled to receive.

Each institution has a Section 504 coordinator, and if it is a public institution, an ADA coordinator, whose function is to ensure that students with disabilities receive necessary services and are free from discrimination. Typically, institutions will require students to provide relatively current documentation as to the nature and extent of the disability. The documentation should also suggest what kinds of accommodations the student is likely to need in order to participate effectively.

What kinds of accommodations am I entitled to receive?

Only those students who have a currently disabling condition are entitled to receive academic adjustments and auxiliary aids and services. Moreover, such accommodations are intended to equalize the playing field for the student with a disability. In determining what kinds of accommodations should be provided, the institution will review the student's documentation, including previous accommodations the students received in other settings. An institution must provide requested accommodations that are reasonable in nature, do not give the student an unfair advantage, do not fundamentally alter the nature of the course and which do not place an undue financial or administrative burden upon the institution.4

Although the student must request necessary accommodations, the institution must demonstrate that the accommodations it provides are effective. In other words, a student may request a number of accommodations, but the institution only need provide accommodations that result in effective participation.5 The institution is not required, however, to provide services of a personal nature. Thus, if a student needs an aide to be present with her when she attends class, the institution would not be required to provide such a person, but refusal to permit the aide to attend would likely be a violation. Additionally, the U.S. Department of Education's Office for Civil Rights (OCR) has ruled that tutorial assistance is a service of a personal nature, and as such, is not required by Section 504 or the ADA. Therefore, a student with a psychiatric disability is only entitled to receive tutorial assistance to the same extent it is provided to nondisabled students.

May my enrollment be terminated for behavior resulting from my disability?

Yes. Unlike students attending elementary and secondary students, who may not be expelled for behavior resulting in their disability, neither Section 504 nor the ADA has been interpreted to provide similar protection to students attending institutions of higher education.6 Thus, a postsecondary institution may expect all students to conform their behavior to meet student conduct codes. Nonetheless, OCR has consistently emphasized that should a student's enrollment need to be terminated for disability-related conduct that unreasonably interferes with learning or poses a direct threat to the health or safety of others, or when a student takes a voluntary leave of absence due to disability-related conditions, the institution must readmit the student when his/her condition stabilizes.7

What if I experience harassment at college?

Both Section 504 and the ADA prohibit harassment against students because of their disability. Faculty and staff harassment on the basis of disability is actionable and, in some cases, harassment by fellow students may be deemed unlawful. Section 504 requires institutions of higher education to have grievance procedures for resolving discrimination complaints. If a student believes that he has suffered unlawful discrimination, he should contact the campus 504/ADA coordinator and inquire about the campus’ grievance procedure. Section 504 and the ADA prohibit retaliation against the individual for exercising their rights under these laws. Hence, a student should suffer no retribution for filing a complaint. Additionally, students may file a complaint with their regional ORC office.

Conclusion

Section 504 and the ADA can be effective tools in ensuring that students with psychiatric disabilities are admitted to institutions of higher education and receive appropriate accommodations to enable them to effectively participate in all aspects of campus life. For some students, success will require the provision of personal services, such as tutorial assistance and an aide to come to class or help with registration. Because these services are considered personal in nature, they need not be provided by the institution, but the institution should permit the student to access these services through volunteers or through personal finances. Students with psychiatric disabilities are understandably concerned about confidentiality and efforts must be made to protect their privacy. Fortunately, most college campuses have 504/ADA coordinators who are sensitive to the particular needs of such students and may be effective advocates for promoting a safe, nondiscriminatory environment that enhances the student's chances of success.

Notes

1Section 504 covers only entities that receive federal funds. Nonetheless, nearly every postsecondary institution receives federal funds.

2Title II of the ADA which applies to publicly funded institutions states that an individual with a disability is considered qualified if s/he meets the essential eligibility requirements for the receipt of services or participation in a program or activity, with or without reasonable accommodation. 28 CFR 35.104. The ADA also provides that, to the extent that Section 504 affords greater protection to an individual with a disability, it must be followed. See, 28 CFR 35.103 (Title II); 28 CFR 36.103(b) (Title III).

3Limited exceptions to this prohibition exist when the institution's purpose for making the inquiry is to promote affirmative action. See, 34 CFR 104.42(c).

4It is critical that the student request the accommodations s/he needs. The Office for Civil Rights places no obligation on the institution to determine appropriate accommodations. Moreover, a student must advise the institution if an accommodation is not effective.

About the Author

Jeanne Kincaid is the author of A Review of Case Law as Applied to Students with Psychological Disabilities in Institutions of Higher Education. To order this document send $13.00 made payable to Jeanne Kincaid, Esq., and mail to 101 Varney Road, Center Barnstead, NH 03225.

Reprinted from the Community Support Network News, Fall, 1994 , 10 (2)

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