This presentation discusses the various obligations of Title IV-eligible institutions of higher education with regard to the ADA and section 504.

1. The Americans with Disabilities Act &
Section 504 of the Rehabilitation Act:
Obligations for Title IV Schools
Dennis Cariello
Co-Chairman, Education Practice
Private Colleges and Career Schools Conference

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HOGAN MARREN, LTDDisclaimers
 The contents of these materials and the accompanying
discussion are for information purposes only and do not
constitute legal or regulatory advice.
 No party should act or refrain from acting on the basis of
any statements made today without seeking individualized,
professional counsel as appropriate.
 These materials and the accompanying discussion are
primarily focused on certain aspects of Title IV
requirements and are not intended to be comprehensive of
all Title IV requirements applicable to all educational
agencies and institutions.

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HOGAN MARREN, LTDIntroduction
Dennis Cariello:
 Shareholder and Co-Practice Group Leader in the Education
Group.
 Former Deputy General Counsel for Postsecondary Education in
US Department of Education (DoED)
 Former Deputy Assistant Secretary for Enforcement in the
DoED’s Office for Civil Rights (OCR)
 Formerly the Chair of Regulatory Strategies in Education Group
of AmLaw 100 Law Firm.
 Extensive knowledge of Title IV of the Higher Education Act and
Civil Rights Laws.
 Handles transactional, regulatory, government relations, civil
rights privacy and litigation matters.
 Education Group features Charlie Rose, former General Counsel
of DoED, Pat Edelson, former program review specialist

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HOGAN MARREN, LTDAgenda
1. Major Federal Laws on Disability Discrimination for
Title IV Schools
2. What is a Disability?
3. Who is Protected?
4. Accommodating Students with Disabilities
5. Reasons not to Accommodate Students with
Disabilities

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Major Federal Laws on Disability
Discrimination for Title IV Schools
Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.)
 1. Title I ("Employment") applies to covered entities
including employers with 15 or more employees. (42 U.S.C.
§ 12111; 29 C.F.R. § 1601.2.)
 2. Title III ("Public Accommodations") applies to public and
private universities as entities providing public
accommodations. (42 U.S.C. § 12182; 28 C.F.R. § 36.102.)
 (a) "No individual shall be discriminated against on the basis
of a disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation . . . ." (42 U.S.C. §
12182(a); 28 C.F.R. § 36.201(a).)

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Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701
et seq.
 1. Prohibits "any program or activity receiving federal
financial assistance" from discriminating against an
individual because of his or her disability. (29 U.S.C §
794(a).)
 (a) "Program or activity" includes "all of the operations" of a
"college, university, or other postsecondary institution, or a
public system of higher education." (29 U.S.C § 794(b)(2).)
 (b) A "recipient" of federal financial assistance includes any
organization or person "to which Federal financial assistance
is extended directly or through another recipient." (34 C.F.R §
104.3(f).)
Major Federal Laws on Disability
Discrimination for Title IV Schools

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Section 504 (continued)
 2. Covered schools having more than 15 employees must
adopt "grievance procedures that incorporate appropriate
due process standards and that provide prompt and
equitable resolution of complaints alleging any action
prohibited by [Section 504].“ (34 C.F.R. § 104.7(b).)
 3. Covered schools must also have a "504 Coordinator“ to
coordinate the school's "efforts to comply with [Section 504
and the accompanying regulations.]" (34 C.F.R. § 104.7(a).)
OCR is responsible for enforcing Section 504 and the ADA.
Major Federal Laws on Disability
Discrimination for Title IV Schools

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Definition: "(1) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual; (2) a record of such an
impairment; or (3) being regarded as having such an
impairment." 42 U.S.C. § 12102(1).
 “Physical impairment“: any "physiological disorder or
condition, cosmetic disfigurement, or anatomical loss
affecting one or more” bodily systems. 29 C.F.R. §
1630.2(h)(1).
 “Mental impairment" includes "any mental or
psychological disorder." 29 C.F.R. § 1630.2(h)(2).
What is a Disability?

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 “Impairment” “does not include physical characteristics
such as eye color, hair color, left-handedness, or height,
weight, or muscle tone that are within 'normal' range and
are not the result of a physiological disorder" or
"characteristic predisposition to disease."
 "[A]n impairment also does not include common
personality traits such as poor judgment or a quick temper,
when they are not symptoms of a mental or psychological
disorder.“ (Section 1630.2(h), 29 C.F.R. § 1630.)
ADA Amendments Act of 2008:
 Definition of disability “shall be construed in favor
of broad coverage… to the maximum extent
permitted by the terms of this Act.” 42 U.S.C. §
12102(4)(A).
What is a Disability?

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"Substantially Limits"
 Individualized assessment (29 C.F.R. § 1630.2(j)(1)(iv).)
 An impairment that substantially limits one major life activity
does not have to also limit other major life activities.
"Major Life Activities"
 Nonexclusive list – includes most things you do every day (caring
for oneself; seeing; hearing; eating; sleeping; walking; thinking;
and working." 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(h)(2)(i).
 May be “episodic” or “in remission” (42 U.S.C. § 12102(4)(D).)
 EEOC: "a person with posttraumatic stress disorder who
experiences intermittent flashbacks to traumatic events is
substantially limited in brain function and thinking."
What is a Disability?

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Mitigating Measures
 The "determination of whether an impairment substantially
limits a major life activity shall be made without regard to
the ameliorative effects of mitigating measures." 42 U.S.C. §
12102(4)(E)(i).
 Mitigating measures include "medication, medical supplies,
equipment, or appliances, low-vision devices (which do not
include ordinary eyeglasses or contact lenses), prosthetics
including limbs and devices, hearing aids and cochlear
implants or other implantable hearing devices, mobility
devices, or oxygen therapy equipment and supplies." 42
U.S.C. § 12102(4)(E)(i)(I); 29 C.F.R. § 1630.2(h)(5)(i).
 Exception: ordinary eyeglasses or contact lenses
What is a Disability?

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"Regarded As" Having a Disability
 A person is "regarded as" having a disability if the
individual "establishes that he or she has been subjected to
an action prohibited under [the ADA] because of an actual
or perceived physical or mental impairment whether or not
the impairment limits or is perceived to limit a major life
activity." 42 U.S.C. § 12102(3)(A).
 Student believed to have AIDS because spouse has AIDS
 An entity need not provide a reasonable modification of
policies, practices, or procedures to individuals who meet
the definition of disability solely because they are “regarded
as” having a physical or mental impairment.
 Such individuals would be entitled to protection from
discrimination, including but not limited to protection
from retaliation and harassment on the basis of disability.
What is a Disability?

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HOGAN MARREN, LTDWhat is a Disability?
Physical or Mental Impairment
Physiological disorder, contagious
disease, cosmetic disfigurement or
anatomical loss in one or more
system:
• Neurological
• Musculoskeletal
• Respiratory
• Cardiovascular
• Reproductive
• Digestive
• Bowel
• Genito-urinary
• Hemic and Lymphatic
• Skin
• Endocrine
• Immune System
• Normal Cell Growth
• Bladder
• Reproductive Functions
Mental or psychological
disorder including:
• Mental retardation
• Organic brain syndrome
• Emotional or mental illness
• Specific learning
disabilities
• Substance Abuse (recovering
alcoholic or addict)*
Major Life Activities
• Self-care
• Manual tasks
• Walking
• Seeing
• Hearing
• Speaking
• Breathing
• Sitting
• Standing
• Reaching
• Thinking
• Concentrating
• Reading
• Communicating
• Interacting with
others
• Learning
• Working
• Eating
• Sleeping
• Lifting
• Bending

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29 C.F.R. § 1630.2(j)(4)(iii): “[S]omeone with a learning disability may achieve a
high level of academic success, but may nevertheless be substantially limited in the
major life activity of learning because of the additional time or effort he or she
must spend to read, write, or learn compared to most people in the general
population.”
29 C.F.R. § 1630.2(j)(1)(v) Appendix A: “Individuals diagnosed with . . . learning
disabilities will typically be substantially limited in performing activities such as
learning, reading, and thinking when compared to most people in the general
population, particularly when the ameliorative effects of mitigating measures,
including therapies, learned behavioral or adaptive neurological modifications . . .
studying longer, or receiving more time to take a test, are disregarded as required
under the ADA Amendments Act.”
What is a Disability?
Record of Impairment Regarded Impairment
The individual has:
• A history of impairment
A record of having been misclassified as having
an impairment
The individual has:
• An impairment not limiting a major life activity,
but treated as disabled by the covered entity
• No impairment, but treated as disabled by the
covered entity

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 Title I of the ADA: "[A]n individual who, with or without
reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires." 42 U.S.C. § 12111(8).
 Title III of the ADA: Students with disabilities have the right to
the same "goods, services, facilities, privileges, advantages, and
accommodations" as nondisabled students, in the "most
integrated setting appropriate to [their] needs." 42 U.S.C. §
12182(b)(1)(B).
 A student must meet the "academic and technical standards"
required for admission or participation with or without reasonable
accommodation. 42 U.S.C. § 12131(2); 28 C.F.R. § 35.104.
 Section 504: An "individual with a disability" as defined under the
ADA is protected. 29 U.S.C. § 705(20)(B).
Who is Protected?

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Under Section 504, a school must make "such modifications
to its academic requirements as are necessary to ensure that
such requirements to not discriminate or have the effect of
discrimination on the basis of handicap." 34 C.F.R. §
104.44(a).
 Types of modifications can include:
 Changes in the length of time permitted for the completion of
degree requirements
 Substitution of specific courses
 Additional time to move from class to class
 Extended time on tests
 Allowing a tape recorder for lectures
 Preferential seating in class
Accommodating Students with Disabilities

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Some Basic Requirements:
 Schools must have clearly defined policies & procedures
 Schools should implement policies consistently when
handling accommodations requests and complaints
 Schools must provide:
 notice of nondiscrimination
 notice of 504/ADA Coordinator
 notice of 504/ADA grievance procedures
 notice of how to obtain academic adjustments and
auxiliary aids
Accommodating Students with Disabilities

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Accommodations Process:
 If a student wants an accommodation, she has an obligation
to provide notice to the institution of a qualifying disability
and the need for the accommodation.
 Must have a documented disability and limitations
 Request must be sufficiently direct and specific
 Process must spell out who decides these issues?
 Process should seek input from person making request and
from the student’s medical provider
 Policies should specify procedures (including for
discrimination complaints)
 Procedures should require documentation of all decisions
Accommodating Students with Disabilities

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• Focus should be on “whether accommodations are
reasonable . . . not on whether an individual meets the
definition of ‘disability.’”
• Disability determinations “should not demand an
extensive analysis”
• Types of generally accepted documentation:
• Recommendations of qualified professionals familiar with
the individual
• Results of professional evaluation
• History of diagnosis
• Observations by educators
• Past use of accommodations.
Accommodating Students with Disabilities

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A Note on Confidentiality . . .
 A student’s disability is confidential information
 The student decides how much information to share
 You may Issue a request for accommodation without
giving a student’s name
 Faculty must avoid inadvertent disclosure
 ADA allows a separate cause of action for breach of
confidentiality
Accommodating Students with Disabilities

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Service Animals as Accommodations
 A "service animal" is a "dog that is individually trained
to do work or perform task for the benefit of an
individual with a disability." 28 C.F.R. § 35.104; 28
C.F.R. § 36.104.
 Under Section 504, a school may not prohibit "dog
guides" in campus buildings. 34 C.F.R. § 104.44(b).
 Check state law – it may be broader
 Comfort Animals
Accommodating Students with Disabilities

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Discipline and Leaves of Absence
 Students with disabilities must comply with all "essential"
academic standards and requirements
 “An institution may not dismiss or sanction a student with a
disability for behavior that it does not sanction when
undertaken by students who are not disabled.” 34 C.F.R. §
104.43.
 Disability is pertinent to whether there are grounds to
“mitigate the penalty for violation of the code of conduct or
engaging in an act that represents a direct threat to
him/herself."
 A school cannot discipline a student for behavior that
violates the rules of conduct if the student's inability to
comply is due to the School's failure to provide reasonable
accommodation.
Accommodating Students with Disabilities

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Reasons for Denial:
 Student does not meet the definition of having a
disability
 Student is simply not qualified even with
accommodations
 Behavior and conduct issues:
 Student violates campus conduct requirements
 Student does not meet attendance requirements
 Student is disruptive – interferes with educational
experience of others
 Student is dangerous – threatening to others (or self?)
Reasons for Not Providing Accommodations

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No accommodation required "if the entity can demonstrate that
taking such steps would fundamentally alter the nature of the
good, service, facility, privilege, advantage, or accommodation
being offered or would result in an undue burden." 42 U.S.C. §
12182(b)(2)(A)(iii).
Undue burden: significant difficulty or expense. 28 C.F.R. § 36.104.
Fundamental Alteration
 Where the modifications in policies, practices, or procedures,
including academic requirements in postsecondary education,
would fundamentally alter the nature of the goods, services,
facilities, privileges, advantages, or accommodations involved."
42 U.S.C. § 12201(f).
Reasons for Not Providing Accommodations

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 "Academic requirements that can be demonstrated by
the [school] to be essential to its program of
instruction or to particular degrees need not be
changed." 34 C.F.R. § 104
 DOJ Guidance: "modification so significant that it alters
the essential nature of the goods, services, facilities,
privileges, advantages, or accommodations offered".
 Schools are entitled to deference when exercising
professional judgment about academic requirements
and fundamental alteration issues.
 "Essential functions" are "the fundamental job duties of
the employment position the individual with a
disability holds or desires." 29 C.F.R. § 1630.2(n)(2).
Reasons for Not Providing Accommodations

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Direct Threat
 Not required to "permit an individual to participate in or benefit
from the services, programs, or activities of that public entity
when that individual poses a direct threat to the health or safety
of others." 28 C.F.R. § 35.139(a).
 Student poses a “direct threat”, a “significant risk” of substantial
harm or to the student or to others that cannot be eliminated or
reduced by reasonable accommodation.
 Direct threat requires a high probability of substantial harm and
not just a slightly increased, speculative, or remote risk.
 Consider: (1) the duration of the risk, (2) the nature and severity
of risk, (3) the likelihood that the potential harm will occur, and
(4) the proximity of the potential harm.
 PROVIDE DUE PROCESS
Reasons for Not Providing Accommodations

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 Have procedures in place to deal with accommodation
requests
 Have an ADA/Section 504 Coordinator
 Keep records – develop a form for requests
 Issues with online learning (OCR May 26th 2011 Dear
Colleague Letter)
 Privacy in this context is important
Some Practical Considerations

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HOGAN MARREN, LTDQuestions
Dennis M. Cariello
Hogan Marren
212-422-4900
Email us at:
Dennis.Cariello@HMLTD.com
Twitter: @educounsel