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As a recipient of federal financial assistance, as well as being a publicly funded state university, ASU is considered to be a public entity. Thus, ASU is subject to the provisions of the Rehabilitation Act of 1973 ("Section 504"), the Americans with Disabilities Act of 1990 ("ADA"), and the ADA Amendments Act of 2008 ("ADAAA"). All the operations of ASU constitute a "program or activity" under Section 504.
This content addresses some frequently asked questions about ASU's responsibilities under federal laws, especially as related to students with disabilities. Questions? Contact OGC.
An individual considered to have a disability is one who:
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).
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.
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:
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.
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).
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:
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:
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.
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.
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:
Program coordinators at the Disability Resource Center (DRC) provide technical assistance to all referral sources, as requested.
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:
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.
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.
34 CFR §104.44 and 28 CFR §35.104
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:
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 Equity and Inclusion 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:
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