Individuals with Disabilities: ASU's Responsibilities & Resources

An individual considered to have a disability is one who:

1. has a physical or mental impairment which substantially limits one or more of such person's major life activities,
2. has a record of such an impairment, or
3. is regarded as having such an impairment

is considered to be an individual with a disability under §504 and the ADA.

The determination of whether an impairment is a disability is to be made without regard to the ameliorating effects of mitigating measures according to the ADA Amendments Act of 2008 (ADAAA).

Conditions that Constitute "Physical or Mental Impairement"

Any physiological disorder or condition, cosmetic disfigurement, or any anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine. Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.

Examples of physical and/or mental impairments include: contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction and alcoholism.

Note: Excluded from the definition of physical or mental impairment are: homosexuality, bisexuality, transsexualism, transvestism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania or pyromania; or current illegal drug use.

Definitions of "Substantially Limit" and "Major Life Activity"

Functions such as caring for one's self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working are examples of major life activities. A major life activity includes the operation of a major bodily function (e.g., cellular, neurological, reproductive and immune systems) and is not limited to those which are central or of primary importance to individuals' lives. ADAAA.

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

An impairment must substantially limit a major life activity for a physical or mental condition to rise to the level of a "disability." Factors that need to be considered include:

1. the nature and severity of the impairment,
2. the duration or expected duration of the impairment and
3. the actual or expected permanent or long-term impact of, or resulting from, the impairment.

The term "substantially limit" was not defined in the ADAAA; however, Congress said the standard should be less than "significantly restricted." For example, an eye infection from the over wearing of contact lens that can be treated with a few days medication and the individual wearing eye glasses would not be considered a visual disability. However, if an eye infection was left untreated and resulted in permanent scarring with reduced vision that could not be corrected solely with eye glasses, a visual disability might very well be found to exist.

Definition of a "Learning Disability"

The ADA does not define specific learning disabilities, nor does Section 504 attempt to expressly define specific learning disabilities. The implementing regulations suggest that the definition for specific learning disabilities contained in the Individuals with Disabilities Education Act ("IDEA") should be followed. "Specific learning disability" is defined in the IDEA as "those [individuals] who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia." 20 U.S.C. §1401(a)(15). Attention Deficit Disorder (ADD) may or may not constitute a disability. A review of the medical documentation in each individual case is necessary.

Notes: The provisions of the IDEA apply to students between the ages of 3 to 21 who are attending pre-school, elementary and secondary schools. It does not apply to postsecondary educational institutions. Excluded from the definition of specific learning disability are individuals who have learning problems which are primarily the result of visual, hearing, or motor disabilities, or mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 20 U.S.C. § 1401 (a)(15).

Qualified Individual

A "qualified individual with a disability" is one who, with or without reasonable modifications to the rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

Students who seek accommodations from the University for a psychological or psychiatric impairment need to provide appropriate medical documentation to the Disability Resource Center (DRC). Determining whether a psychological/psychiatric disorder, e.g., schizophrenia or borderline personality, is a covered disability is generally resolved by reference to the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual (currently known as "DSM-IV"). A professional diagnosis must be made.

Court and administrative law decisions, in the employment context, have identified conditions that are not covered by either §504 or the ADA. For example:

1. Irresponsible behavior. Poor judgment, irresponsible behavior and lack of impulse control are not the types of problems that are disabilities. (For an example, a teacher dismissed for kissing a student failed in his defense that poor sexual impulse control was a disability under the ADA).
2. Occasional stress and other temporary disabilities. A distinction may be drawn between temporary and permanent disabilities. In many cases there is no need to accommodate where a condition is temporary, e.g., class specific stress. In order to qualify as a disability, a condition must "substantially limit" a major life activity. Extent, duration, and impact should be factored into each evaluation. Under the ADAAA, the protections of the law are extended to an individual with an impairment that is episodic or in remission, if the impairment would substantially limit a major life activity when active.
3. Sexual harassment. A person who sexually harasses others is not "handicapped" under federal law.

Pre-Admissions Determinations

Pre-admission inquiry as to whether a student is disabled is not permitted. But a school may seek information to make a determination that an individual can perform the essential functions of the academic program.

However, when deciding whether to admit a "qualified individual with a disability," ASU must make a factual determination as to whether the student meets the academic and technical standards requisite to admission or participation in the educational program or activity:

• if yes, then the student should be granted admission
• if no, then the university must determine whether a "reasonable accommodation" exists which will allow the individual to successfully participate in the academic program. An individualized determination must be made.

Admitted and/or Enrolled Students

Once a student is admitted or enrolled, it is the responsibility of the student to inform the University of any disabling condition if the student is requesting a reasonable modification. ASU may require the student to provide current medical documentation to substantiate the existence of the disability.

Students requesting accommodations for a disability should contact the Disability Resource Center. DRC assesses each student's individual needs, develops an individual academic program recommendation and refers the student to other university resources, as appropriate.

Refer also to SSM 701-02.

Students

Contact the Disability Resource Center (DRC).

Employees

Contact the Office of Human Resources.

Essential Eligibility and Safety Requirements for Programs or Activities

Academic requirements that are essential to the program of instruction being pursued by the student or to any directly related licensing requirement will not be regarded as discriminatory under §504 or the ADA. For example, the core course requirements for a specific degree program are essential while credits that are to be obtained through elective courses are not essential to the program of instruction and may be subject to modification. Standards that a college sets for admission into its academic program are entitled to deference as the correct statement of academic qualifications needed to perform at the college.

ASU must make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of disability, against a qualified student with a disability or applicant with a disability. Students must make a timely request for accommodation in order to support a claim for violation of the ADA or §504. Students who request academic adjustments and then fail to go to class cannot then complain about the adequacy of the adjustments.

Furthermore, the University may impose legitimate safety requirements necessary for the safe operation of its services, programs, and activities so long as the safety requirements are based upon actual risks, and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. For example, for a geological sciences lab course that consists of field work in a remote canyon area that is inaccessible to motor vehicles, the university can require that students have the physical strength and stamina to hike in and out of the field site, navigate within the field site, and transport adequate water and scientific equipment and supplies.

Identifying/Determining and Implementing Reasonable Accommodation(s) or Modification(s)

Each case must be considered individually. Failure of a university or college to have appropriate policies in place to implement the protections of the ADA and §504 will be considered to be a violation by the Office of Civil Rights. Universities can establish reasonable standards and procedures for students to follow to obtain academic adjustments. ASU has adopted procedures which can be found at SSM 701. A student with a disability must exercise due diligence in seeking any requested academic adjustment. Conversely, delays in providing the requested accommodation can result in the university being found to have discriminated against the student. Students seeking accommodations must register with the Disability Resource Center (DRC). Staff will prepare an accommodation plan for each student based upon the student's particular disability(ies) and program of study. Discussion should occur with the student to learn what accommodations have worked in the past.

Under §504, "otherwise qualified" means one who is able to meet all of a program's requirements in spite of his or her handicap. This test is applied by inquiring into accommodations that may be required, the effect of such accommodations, and their extent. "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." However, it may be required to make "reasonable" ones. An educational institution that declines to make an accommodation can still be found to have met its duty of seeking a reasonable accommodation where it can show that:

1. the relevant officials within the institution considered alternative means,
2. the feasibility, cost and effect on the academic program, and
3. came to a rationally justifiable conclusion that the available alternatives would result either in lowering academic standards or requiring substantial program alteration.

Program coordinators at the Disability Resource Center (DRC) provide technical assistance to all referral sources, as requested.

Academic Adjustments as Reasonable Accommodation(s)

For qualified students with disabilities, the University is required to make academic adjustments in appropriate situations. The regulations under §504 list a number of academic adjustments and aids that may prove reasonable or necessary to accommodate students with disabilities. 34 CFR §104.44. Some examples of academic adjustments appear below:

1. Academic adjustments. Academic adjustments must be provided as a reasonable accommodation and regardless of the student's ability to pay. Examples of academic adjustments include:
   1. additional time,
   2. adaption of course instruction,
   3. course substitution,
   4. taped texts, Braille, large print or electronic text,
   5. modification of testing methods (e.g., extended time, unlimited time, oral test, frequency of tests, test location, alternate formats),
   6. note-takers,
   7. qualified readers for students with visual impairments,
   8. interpreters or other effective methods of making orally delivered materials available to students with hearing impairments,
   9. classroom equipment adapted for use by students with manual impairments,
   10. preferential seating,
   11. grade adjustments,
   12. lighter course loads,
   13. computer with spell check, and even
   14. special parking arrangements.

       The University is not required to provide devices of a personal nature, readers for personal use or personal care attendants. 34 CFR §104.44; see generally SSM 701.

2. Waiver of courses. Where a course requirement is essential to the program of instruction taken by the student, a college is not required to waive the requirement. Some examples of course requirements which courts have found to be essential include nursing clinical requirements, math requirement for a BA degree, and foreign language requirements. Alternate arrangements may also amount to reasonable accommodation. For example, where a university rejects a request to waive a mathematics course and provides tutoring, extended examination time, alternate test location, and other adjustments to the student, the university has acted lawfully. The appropriateness of waiver or modification of course requirements depends on the facts of each case. Substitution for nonessential requirements may be required. See also SSM 701-13.
3. Test taking. Modifications to the manner of testing are recognized as reasonable accommodations. What is "reasonable" depends on the circumstances of each case. Several examples of modifications include a separate room, unlimited time, and a proctor. A university must provide such methods for evaluating the achievement of students who have a handicap that impairs sensory, manual or speaking skills as will best ensure that the results of the evaluation represents that student's achievement in the course, rather than reflecting the student's impairment (except where such skills are the factors that the test purports to measure). 34 CFR § 104.44; see also SSM 701-05. However, a particular request for testing modification can be denied if the documentation provided by the student fails to support the particular modification requested, e.g., oral testing.
4. Tutors. A college is obligated only to provide tutors in the same manner as it does to students without disabilities. For example, at ASU tutoring services are available to all students only for the lower level general studies courses. As a general rule then, ASU would not be required to provide to a student with disabilities tutoring for upper level courses because that service is not offered to non-disabled students. See Northern Arizona University, 5 N.D.L.R. ¶284 (OCR 1994); see also SSM 701. Other learning strategies can be offered, e.g., test accommodations, use of the computer lab, services of a representative from the Disability Resource Center (DRC) to consult with the student's instructor(s). However, on a case-by-case basis, tutoring may prove to be necessary to achieve reasonable accommodation.

Grading and Performance

If a student does poorly in a class after receiving requested adjustments, the University can grade the student acoordingly. For example, if a student has requested and is granted expanded time for taking a test and submits incomplete or wrong answers, the instructor can grade the test according to the instructor's standards for all students. Similarly, students who fail to meet the minimum academic standards of a program can be withdrawn from that program. For example, one university was found to have discriminated against a student with a learning disability when it failed to provide him with academic adjustments that he needed to participate in the student teaching program. The student had requested assistance with spelling and clear instructions from his master teachers. However, when the university ultimately did provide the requested adjustments and the student still received poor evaluations and failing grades, the university's decision to terminate the student from the program was upheld by OCR. In another case, a law school was found to have properly excluded a student with a speech impairment from moot trial court competition where the exclusion was not based on the student's impairment but rather on the fact that he received the lowest individual marks of all participants.

Auxiliary aids may be available to students with hearing, visual, or orthopedic impairments. A university has the right to choose the accommodation that is effective and will assist the student. The DRC oversees the identification of appropriate services and assistance for students with disabilities.

Refer to:

34 CFR §104.44 and 28 CFR §35.104

SSM 701

With regards to students, a fear of disruptive behavior may not be sufficient to deny readmission. However, colleges and universities are not required to retain or readmit a student with a disability whose behavior poses a direct threat to the safety of others. Furthermore, a college or university may be able to set conditions for readmission.

Refer to also:

• the safety information on this Web site
• SSM 104-02
• SSM 104-05
• SSM 201-10

If a dispute results from either the denial of a requested accommodation or the sufficiency of the accommodation that has been offered or provided by the University and the matter cannot be resolved between the College and the student, the student may contact the ADA Coordinator at 480.965.5057 (informal complaint) and/or file a written complaint (formal complaint) with that office within 120 days of the last act of alleged discrimination.

The Office of University Rights & Responsibilities will conduct an investigation into the complaint of disability discrimination as described in ACD 405 and ACD 401. See SSM 701-08. The report shall be forwarded to appropriate vice-president or designee for acceptance, rejection, or modification of the findings. The appropriate vice-president or designee will provide a copy of the determination to the complaining party, the party accused of violating the policy, and the appropriate university administrator.

A student who believes that he or she has been discriminated against on the basis of disability may file a complaint with the Office of Civil Rights of the United States Department of Education within 180 days of the last act of alleged discrimination. Students are not required to use the University's internal process for resolving disputes related to disability.

A student may also file a private lawsuit in appropriate courts within certain time lines.

For more information and resources, refer to:

ACD 401

ACD 405

ASU Counseling Services

Disability Resource Center (DRC)

Office of Human Resources, Disabilities Information and Resources

Office of University Rights & Responsibilities

Student Services Manual, "Disability Resources" section

Support Services for ASU Students

Web site Accessibility information on this Web site