© 2004 Texas Southern University1 The Impact of the Americans with Disabilities Act (ADA) and Section 504 on Higher Education Presented by the Texas Southern University Office of General Counsel

© 2004 Texas Southern University2 DISCLAIMER The Texas Southern University Office of General Counsel has published this training module for general information and use by University employees only. The pages are not intended to provide legal advice for any particular situation. Legal advice can be provided only in the course of an attorney-client relationship with reference to all the facts of a specific situation. Accordingly, this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney. The Texas Southern University Office of General Counsel has published this training module for general information and use by University employees only. The pages are not intended to provide legal advice for any particular situation. Legal advice can be provided only in the course of an attorney-client relationship with reference to all the facts of a specific situation. Accordingly, this information must not be relied on as a substitute for obtaining legal advice from a licensed attorney.

© 2004 Texas Southern University3 What are the ADA and Section 504? The Americans with Disabilities Act (ADA) is a civil rights statute that prohibits discrimination against persons with disabilities and requires equal access to public facilities, programs, activities, and services. The Americans with Disabilities Act (ADA) is a civil rights statute that prohibits discrimination against persons with disabilities and requires equal access to public facilities, programs, activities, and services. Section 504 of the Rehabilitation Act requires equal opportunity for all qualified persons with disabilities in all programs, activities and services receiving federal financial assistance. Section 504 of the Rehabilitation Act requires equal opportunity for all qualified persons with disabilities in all programs, activities and services receiving federal financial assistance.

© 2004 Texas Southern University4 Under the ADA and Section 504, universities are required to make “reasonable accommodations” for persons with disabilities and provide them the opportunity to participate fully in all institutional programs and activities. Under the ADA and Section 504, universities are required to make “reasonable accommodations” for persons with disabilities and provide them the opportunity to participate fully in all institutional programs and activities.

© 2004 Texas Southern University5 What is a “reasonable accommodation” under the ADA?  An accommodation that does not  create an “undue hardship” on the University  fundamentally alter the educational program or its academic requirements, or require the provision of “personal services” for the individual making the request require the provision of “personal services” for the individual making the request

© 2004 Texas Southern University6 Undue hardship defined An accommodation request creates undue hardship if it is An accommodation request creates undue hardship if it is unduly costly, unduly costly, extensive, extensive, substantial, or substantial, or disruptive disruptive

© 2004 Texas Southern University7 Fundamental alteration defined If an accommodation request reduces or lowers the academic standards of the University, the accommodation is denied because it is unreasonable. If an accommodation request reduces or lowers the academic standards of the University, the accommodation is denied because it is unreasonable. Academic standards are essential for every student. It is unreasonable to alter these fundamental standards with an accommodation. Academic standards are essential for every student. It is unreasonable to alter these fundamental standards with an accommodation.

© 2004 Texas Southern University8 Personal services defined “Personal services” are those that a person with a disability requires regardless of attendance at the University “Personal services” are those that a person with a disability requires regardless of attendance at the University Personal services are also those for which there is no correlation between the disability's functional limitation and program access Personal services are also those for which there is no correlation between the disability's functional limitation and program access Examples include personal attendants, hearing aids, glasses, wheelchairs Examples include personal attendants, hearing aids, glasses, wheelchairs The University is not required to grant requests for personal services The University is not required to grant requests for personal services

© 2004 Texas Southern University9 Examples of “reasonable accommodations” in Higher Education Adapting the way specific courses are conducted Adapting the way specific courses are conducted Allowing extra time to complete exams or permitting exams to be individually proctored, read orally, dictated or typed Allowing extra time to complete exams or permitting exams to be individually proctored, read orally, dictated or typed Changing test formats (i.e. from multiple choice to essay) Changing test formats (i.e. from multiple choice to essay) Installing handicap accessible ramps, doors, flashing lights on alarms, curb cuts, etc. Installing handicap accessible ramps, doors, flashing lights on alarms, curb cuts, etc.

© 2004 Texas Southern University10 Examples of “reasonable accommodations” in Higher Education Universities must also provide certain "auxiliary aids and services," such as Universities must also provide certain "auxiliary aids and services," such as Qualified sign language interpreters, Qualified sign language interpreters, Note takers, Note takers, Readers for blind or learning disabled students Readers for blind or learning disabled students Braille and large print materials Braille and large print materials

© 2004 Texas Southern University11 Accommodations requests at TSU NEED TO DISCUSS PROCESS FOR REQUESTING, GRANTING AND NOTIFYING FACULTY OF ACCOMMODATIONS REQUESTS BY STUDENTS

© 2004 Texas Southern University12 Potential ADA problem areas for faculty Faculty should be careful about engaging in philosophical debates about the ADA’s "fairness" to non-disabled students, or whether providing accommodations somehow violates academic freedom. Faculty should be careful about engaging in philosophical debates about the ADA’s "fairness" to non-disabled students, or whether providing accommodations somehow violates academic freedom. Laws enacted by both the U.S. Congress and Texas legislature require equal access to higher education by persons with disabilities Laws enacted by both the U.S. Congress and Texas legislature require equal access to higher education by persons with disabilities Academic freedom does not preempt federal or state civil rights statutes. Academic freedom does not preempt federal or state civil rights statutes.

© 2004 Texas Southern University13 Potential ADA problem areas for faculty Faculty members should not: Faculty members should not: Decide to not provide approved academic adjustments for a student. To deny approved accommodations may subject the University and faculty member to liability. Decide to not provide approved academic adjustments for a student. To deny approved accommodations may subject the University and faculty member to liability. Refuse to allow students to tape record lectures as an accommodation even if there is a practice of not allowing students to record lectures. Refuse to allow students to tape record lectures as an accommodation even if there is a practice of not allowing students to record lectures.

© 2004 Texas Southern University14 Potential ADA problem areas for faculty Faculty members should not: Faculty members should not: Refuse to provide copies of handouts, or orally describe information written on the chalkboard, or face the class when referring to something written on the chalkboard, etc., if these accommodations have been determined to be appropriate for a student. Refuse to provide copies of handouts, or orally describe information written on the chalkboard, or face the class when referring to something written on the chalkboard, etc., if these accommodations have been determined to be appropriate for a student. Refuse to allow extended time for tests on the mistaken assumption that doing so requires that all students be given additional time. Refuse to allow extended time for tests on the mistaken assumption that doing so requires that all students be given additional time.

© 2004 Texas Southern University15 Case Study 1 A student with a qualified visual impairment requested accommodations, as follows: A student with a qualified visual impairment requested accommodations, as follows: That she be allowed to sit in the front of the classroom, and That she be allowed to sit in the front of the classroom, and That any material to be presented in class on an overhead projector be provided to her in advance of class for enlargement. That any material to be presented in class on an overhead projector be provided to her in advance of class for enlargement.

© 2004 Texas Southern University16 Case Study 1, cont’d One professor continuously forgot to provide the materials in advance and often expressed frustration with faculty members “having to take responsibility for disabled students, most of whom were community college material and not qualified to be enrolled in the university.” The professor also stated that he objected to the ADA because it “allowed students to use federal regulations to cover for their poor academic skills.” One professor continuously forgot to provide the materials in advance and often expressed frustration with faculty members “having to take responsibility for disabled students, most of whom were community college material and not qualified to be enrolled in the university.” The professor also stated that he objected to the ADA because it “allowed students to use federal regulations to cover for their poor academic skills.”

© 2004 Texas Southern University17 A few weeks later, the professor forgot the student’s materials again and during class yelled, “Damn! This is really annoying!” He then turned to the student and asked, “Can you see this or shall I read every line out loud?” A few weeks later, the professor forgot the student’s materials again and during class yelled, “Damn! This is really annoying!” He then turned to the student and asked, “Can you see this or shall I read every line out loud?” The student filed a complaint asserting that the professor embarrassed her, disclosed her disability without her permission, and created a hostile learning environment. The student filed a complaint asserting that the professor embarrassed her, disclosed her disability without her permission, and created a hostile learning environment. Is the University liable? Is the University liable? Case Study 1, cont’d

© 2004 Texas Southern University18 Other reasons to be concerned about the ADA It is important to create and promote a safe and equitable working and learning environment for TSU faculty, staff and students. It is important to create and promote a safe and equitable working and learning environment for TSU faculty, staff and students. To do so, we must all know and understand the Americans with Disabilities Act so that we may ensure our own compliance and respect the rights of others. To do so, we must all know and understand the Americans with Disabilities Act so that we may ensure our own compliance and respect the rights of others.

© 2004 Texas Southern University19 ADA compliance at TSU The University has an ADA policy in effect. The policy: The University has an ADA policy in effect. The policy: Applies to employees and students Applies to employees and students Creates a Campus Oversight Committee to oversee ADA compliance, and Creates a Campus Oversight Committee to oversee ADA compliance, and Addresses: Addresses: Accessibility issues on campus Accessibility issues on campus ADA complaints and hearings ADA complaints and hearings

© 2004 Texas Southern University20 What are costs of non-compliance? Failure to comply with the ADA harms the University by: Failure to comply with the ADA harms the University by: Not respecting the rights of disabled individuals and Not respecting the rights of disabled individuals and Exposing the University to Exposing the University to OCR complaints OCR complaints Costly litigation Costly litigation Settlement agreements Settlement agreements

© 2004 Texas Southern University21 If you have questions about the ADA or the rights of disabled individuals, please contact the University's If you have questions about the ADA or the rights of disabled individuals, please contact the University's Employment Compliance Officer, Office of General Counsel Hannah Hall-Room For more information