© 2004 Texas Southern University 1

The Impact of the The Impact of the Americans with Americans with

Disabilities Act (ADA) and Disabilities Act (ADA) and Section 504 on Higher Section 504 on Higher

EducationEducation

Presented by the Presented by the

Texas Southern University Texas Southern University

Office of General CounselOffice of General Counsel

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DISCLAIMERDISCLAIMER

The Texas Southern University Office of The Texas Southern University Office of General Counsel has published this training General Counsel has published this training module for general information and use by module for general information and use by University employees only. The pages are University employees only. The pages are not intended to provide legal advice for any not intended to provide legal advice for any particular situation. Legal advice can be particular situation. Legal advice can be provided only in the course of an attorney-provided only in the course of an attorney-client relationship with reference to all the client relationship with reference to all the facts of a specific situation. Accordingly, this facts of a specific situation. Accordingly, this information must not be relied on as a information must not be relied on as a substitute for obtaining legal advice from a substitute for obtaining legal advice from a licensedlicensed attorney.attorney.

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What are the ADA and Section What are the ADA and Section 504?504?

The Americans with Disabilities Act (ADA) is The Americans with Disabilities Act (ADA) is a civil rights statute that prohibits a civil rights statute that prohibits discrimination against persons with discrimination against persons with disabilities and requires equal access to disabilities and requires equal access to public facilities, programs, activities, and public facilities, programs, activities, and services.services.

Section 504 of the Rehabilitation Act Section 504 of the Rehabilitation Act requires equal opportunity for all qualified requires equal opportunity for all qualified persons with disabilities in all programs, persons with disabilities in all programs, activities and services receiving federal activities and services receiving federal financial assistance.financial assistance.

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Under the ADA and Section 504, Under the ADA and Section 504, universities are required to universities are required to make “reasonable make “reasonable accommodations” for persons accommodations” for persons with disabilities and provide with disabilities and provide them the opportunity to them the opportunity to participate fully in all participate fully in all institutional programs and institutional programs and activities.activities.

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What is a “reasonable What is a “reasonable accommodation” under the accommodation” under the

ADA?ADA? An accommodation that does notAn accommodation that does not

create an “undue hardship” on create an “undue hardship” on the Universitythe University

fundamentally alter the fundamentally alter the educational program or its educational program or its academic requirements, oracademic requirements, or

require the provision of “personal require the provision of “personal services” for the individual making services” for the individual making the requestthe request

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Undue hardship definedUndue hardship defined

An accommodation request An accommodation request creates undue hardship if it iscreates undue hardship if it is unduly costly, unduly costly, extensive, extensive, substantial, orsubstantial, or disruptivedisruptive

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Fundamental alteration Fundamental alteration defineddefined

If an accommodation request If an accommodation request reduces or lowers the academic reduces or lowers the academic standards of the University, the standards of the University, the accommodation is denied because it accommodation is denied because it is unreasonable. is unreasonable. Academic standards are essential for Academic standards are essential for

every student. It is unreasonable to alter every student. It is unreasonable to alter these fundamental standards with an these fundamental standards with an accommodation.accommodation.

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Personal services Personal services defineddefined

““Personal services” are those that a person Personal services” are those that a person with a disability requires regardless of with a disability requires regardless of attendance at the Universityattendance at the University

Personal services are also those for which Personal services are also those for which there is no correlation between the there is no correlation between the disability's functional limitation and disability's functional limitation and program accessprogram access

Examples include personal attendants, Examples include personal attendants, hearing aids, glasses, wheelchairshearing aids, glasses, wheelchairs

The University is not required to grant The University is not required to grant requests for personal servicesrequests for personal services

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Examples of “reasonable Examples of “reasonable accommodations” in Higher accommodations” in Higher

EducationEducation Adapting the way specific courses are Adapting the way specific courses are

conductedconducted Allowing extra time to complete exams or Allowing extra time to complete exams or

permitting exams to be individually permitting exams to be individually proctored, read orally, dictated or typedproctored, read orally, dictated or typed

Changing test formats (i.e. from multiple Changing test formats (i.e. from multiple choice to essay)choice to essay)

Installing handicap accessible ramps, Installing handicap accessible ramps, doors, flashing lights on alarms, curb cuts, doors, flashing lights on alarms, curb cuts, etc.etc.

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Examples of “reasonable Examples of “reasonable accommodations” in Higher accommodations” in Higher

EducationEducation Universities must also provide Universities must also provide

certain "auxiliary aids and certain "auxiliary aids and services," such as services," such as Qualified sign language interpreters, Qualified sign language interpreters, Note takers, Note takers, Readers for blind or learning Readers for blind or learning

disabled studentsdisabled students Braille and large print materialsBraille and large print materials

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Accommodations requests at Accommodations requests at TSUTSU

NEED TO DISCUSS PROCESS FOR NEED TO DISCUSS PROCESS FOR REQUESTING, GRANTING AND REQUESTING, GRANTING AND NOTIFYING FACULTY OF NOTIFYING FACULTY OF ACCOMMODATIONS REQUESTS BY ACCOMMODATIONS REQUESTS BY STUDENTSSTUDENTS

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Potential ADA problem Potential ADA problem areas areas

for facultyfor faculty Faculty should be careful about engaging in Faculty should be careful about engaging in

philosophical debates about the ADA’s philosophical debates about the ADA’s "fairness" to non-disabled students, or "fairness" to non-disabled students, or whether providing accommodations whether providing accommodations somehow violates academic freedom. somehow violates academic freedom. Laws enacted by both the U.S. Congress Laws enacted by both the U.S. Congress

and Texas legislature require equal access and Texas legislature require equal access to higher education by persons with to higher education by persons with disabilitiesdisabilities

Academic freedom does not preempt Academic freedom does not preempt federal or state civil rights statutes. federal or state civil rights statutes.

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Potential ADA problem areas Potential ADA problem areas for facultyfor faculty

Faculty members should not: Faculty members should not: Decide to not provide approved Decide to not provide approved

academic adjustments for a student. To academic adjustments for a student. To deny approved accommodations may deny approved accommodations may subject the University and faculty subject the University and faculty member to liability. member to liability.

Refuse to allow students to tape record Refuse to allow students to tape record lectures as an accommodation even if lectures as an accommodation even if there is a practice of not allowing there is a practice of not allowing students to record lectures.students to record lectures.

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Potential ADA problem areas Potential ADA problem areas for facultyfor faculty

Faculty members should not:Faculty members should not: Refuse to provide copies of handouts, or Refuse to provide copies of handouts, or

orally describe information written on the orally describe information written on the chalkboard, or face the class when referring chalkboard, or face the class when referring to something written on the chalkboard, to something written on the chalkboard, etc., if these accommodations have been etc., if these accommodations have been determined to be appropriate for a student. determined to be appropriate for a student.

Refuse to allow extended time for tests on Refuse to allow extended time for tests on the mistaken assumption that doing so the mistaken assumption that doing so requires that all students be given requires that all students be given additional time. additional time.

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Case StudyCase Study 1 1

A student with a qualified visual A student with a qualified visual impairment requested impairment requested accommodations, as follows: accommodations, as follows: That she be allowed to sit in the front of That she be allowed to sit in the front of

the classroom, andthe classroom, and That any material to be presented in class That any material to be presented in class

on an overhead projector be provided to on an overhead projector be provided to her in advance of class for enlargement.her in advance of class for enlargement.

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Case StudyCase Study 1, 1, cont’dcont’d

One professor continuously forgot to One professor continuously forgot to provide the materials in advance and often provide the materials in advance and often expressed frustration with faculty members expressed frustration with faculty members “having to take responsibility for disabled “having to take responsibility for disabled students, most of whom were community students, most of whom were community college material and not qualified to be college material and not qualified to be enrolled in the university.” The professor enrolled in the university.” The professor also stated that he objected to the ADA also stated that he objected to the ADA because it “allowed students to use federal because it “allowed students to use federal regulations to cover for their poor academic regulations to cover for their poor academic skills.”skills.”

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A few weeks later, the professor forgot the A few weeks later, the professor forgot the student’s materials again and during class student’s materials again and during class yelled, “Damn! This is really annoying!” He yelled, “Damn! This is really annoying!” He then turned to the student and asked, “Can then turned to the student and asked, “Can you see this or shall I read every line out you see this or shall I read every line out loud?”loud?”

The student filed a complaint asserting that The student filed a complaint asserting that the professor embarrassed her, disclosed the professor embarrassed her, disclosed her disability without her permission, and her disability without her permission, and created a hostile learning environment.created a hostile learning environment.

Is the University liable? Is the University liable?

Case StudyCase Study 1, 1, cont’dcont’d

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Other reasons to be Other reasons to be concerned about the ADAconcerned about the ADA

It is important to create and promote a It is important to create and promote a safe and equitable working and learning safe and equitable working and learning environment for TSU faculty, staff and environment for TSU faculty, staff and students. students.

To do so, we must all know and To do so, we must all know and understand the Americans with understand the Americans with Disabilities Act so that we may ensure Disabilities Act so that we may ensure our own compliance and respect the our own compliance and respect the rights of others.rights of others.

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ADA compliance at TSUADA compliance at TSU The University has an ADA policy in The University has an ADA policy in

effect. The policy:effect. The policy: Applies to employees and studentsApplies to employees and students Creates a Campus Oversight Creates a Campus Oversight

Committee to oversee ADA Committee to oversee ADA compliance, andcompliance, and

Addresses:Addresses: Accessibility issues on campusAccessibility issues on campus ADA complaints and hearings ADA complaints and hearings

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What are costs of non-What are costs of non-compliance?compliance?

Failure to comply with the ADA Failure to comply with the ADA harms the University by:harms the University by: Not respecting the rights of Not respecting the rights of

disabled individuals anddisabled individuals and Exposing the University to Exposing the University to

OCR complaintsOCR complaints Costly litigationCostly litigation Settlement agreementsSettlement agreements

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If you have questions about the If you have questions about the ADA or the rights of disabled ADA or the rights of disabled individuals, please contact the individuals, please contact the University's University's

Employment Compliance Officer, Employment Compliance Officer, Office of General Counsel Office of General Counsel

Hannah Hall-Room 310Hannah Hall-Room 310713-313-7950 713-313-7950

For more informationFor more information