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Legal Issues

Posted in Effective College Planning by admin on the May 5th, 2007

When talking about transition from high school to college, it is necessary to consider more than the academic preparation required. Since Congress first passed Section 504 of the Rehabilitation Act of 1973 and the Education for All Handicapped Children Act in 1975, education of individuals with disabilities must be regarded as a legal issue. It is imperative that both parents and students understand the legal differences between the two educational environments.

Individuals with Disabilities Education Act (IDEA): Legislation that replaced the Education for All Handicapped Children Act. The purpose is to ensure that all children with disabilities in the United States in grades K-12 (or age 21) who are entitled to Special Education would receive a free, appropriate public education in the least restrictive environment. IDEA mandates that school districts identify children with disabilities and design an Individualized Education Program (IEP) to meet the needs of each child. IDEA requires that all children with disabilities within a school district, including those with 504 plans, receive transition planning from age 12 until graduation or age 21. IDEA does not apply to pre-school or to postsecondary education.

Rehabilitation Act of 1973, Section 504 (Section 504):

No otherwise qualified person with a disability in the United States … shall, solely by reason of … disability, be denied the benefits of, be excluded from participation in, or be subjected to discrimination under any program or activity receiving federal financial assistance….

Explanation:

The Rehabilitation Act including Section 504 is civil rights/anti-discrimination legislation that applies to any entity (business, organization, school etc.) that receives federal funds of any kind. The purpose of Section 504 is to give qualified individuals with disabilities equal access to programs and services available to the non-disabled person. It has different sub-parts that apply to elementary and secondary (Subpart D), and post-secondary education (Subpart E). The regulations for Section 504 give us the federal definition for person with a disability, qualified person with a disability, programs and services etc. Students with disabilities who can participate in a regular education program but who do not require special education and/or related services should have a written 504 plan which details necessary accommodations such as extended time for testing or alternate test administration location.

Americans with Disabilities Act (ADA): Civil rights/Anti-discrimination legislation. ADA’s main purpose is to extend the legal mandate of Section 504 beyond recipients of federal funds. It has five major Titles that cover employment, public accommodations, private entities, telecommunications, and miscellaneous topics. In terms of postsecondary education, ADA reinforces the requirements of Section 504 and under Title III extends the requirements of equal program access to private colleges and universities that might have previously been exempt from the mandate of Section 504.

The Americans with Disabilities Act Amendments Act of 2008:

No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such (public) entity.

Explanation:

The ADA Amendment Act (still called ADA) gave Congress the opportunity to clarify the application and interpretation of the legislation by the courts, including the Supreme Court. Many of the cases that appeared on that docket were employment cases where the emphasis by the court had been on the individual proving she was disabled rather than determining if the request for accommodation was reasonable and appropriate. The new legislation adds to the list of potential disabilities by extending the definition of major life activity to include:

the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

It is important to remember that for most colleges and universities, Section 504 is the foundation for determining who is an eligible person with a disability and what range of accommodations and/or services that individual may require. It is important to understand what Section 504 and the ADA and the related regulations do and do not stipulate. The definitions below apply to both pieces of legislation:

A person with a disability is:

    An individual who has:
    A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
    B) a record of such an impairment;
    C) has been regarded as having such an impairment

Examples of disabilities include, but are not limited to:

Conditions such as: Chronic illnesses such as: The Operation of a major
visual impairment Cerebral Palsy Deafness/hearing impairment epilepsy or seizure disorder orthopedic/mobility impairment specific learning disability speech and language disorder spinal cord injury Tourette’s syndrome traumatic brain injury
    AIDS Chronic asthma cancer cardiac disease diabetes Multiple Sclerosis Muscular Dystrophy Bi-Polar Disorder Major Depression Post-Traumatic Stress Disorder OCD or other mental health, psychiatric or cognitive impairment
    functions of the immune system normal cell growth digestive bowel bladder, neurological brain respiratory circulatory endocrine reproductive functions

Substantially limited has been define under the ADA Amendment Act to state:

  • To be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.
  • An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.

A qualified person with a disability is defined as

    An individual with a disability who, with or without reasonable modifications to 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.

In postsecondary education, a qualified student with a disability is one who, with or without accommodation, can meet both the general admission requirements for the college or university and the specific program of study which she wishes to pursue

and

who voluntarily self-identifies herself to the Disability Office on campus and provides adequate documentation of a disability to support requested accommodations.

  • Said documentation details the current impact of the disability on everyday life functions.
  • Is an individual with a disability who may require adjustments, modifications, auxiliary aids or services to participate in and/or benefit from the college’s programs and activities.

The chart on the next page compares and contrasts these three laws.