Section 504 Update for CCC Faculty

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

Section 504: Who cares?• Parents care (a LOT)• Student care• The Office for Civil Rights care • YOU should care:

http://www.kmtv.com/news/local/191746861.html

Disability Law Education

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504 and ADA

Section 504 applies to recipients of Federal financial assistance Title II of the ADA applies to public

entities, including public elementary and secondary schools and state colleges and universities

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504’s General Provisions Both statutes provide that qualified

individuals with a disability may not, on the basis of disability, be:• Excluded from participation• Denied the benefits • Otherwise subjected to discrimination

504 Principles for College: May not discriminate based on disability Must make academic adjustments

necessary to ensure requirements do not discriminate Must ensure students with disabilities are

not discriminated against due to absence of auxiliary aids for students with impaired sensory, manual, or speaking skills

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504 Principles for College: College and student should use an

“interactive process” to determine appropriate academic adjustments and auxiliary aids and services that meet the student’s individual needs Academic adjustments and auxiliary aids

and services must be provided in a timely manner

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504 Principles for College:• If a college student wants an academic

adjustment or auxiliary aids and services, the student has the responsibility to notify the college of his or her disability and need for the academic adjustment or auxiliary aids and services

• Colleges do not have an affirmative duty to identify, evaluate, or develop a plan that provides FAPE

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When are 504 accommodations

required? When the student has a physical or

mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When the student has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When are 504 accommodations

required?

When the student has a physical or mental impairment that substantially limits one or more major life activitiesAND

Student is in need of either regular ed with supplementary services or special ed. and related services

When are 504 accommodations

required?

When the student has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When are 504 accommodations

required?

What constitutes a “substantial limitation?”

504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”

Phrase is to be defined by local education agency

“substantial limitation?”Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”

Disability Defined by 504A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.

Changes to ADA

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008

increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

Major Changes First, the definition of “major life activity”

has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes First, the definition of “major life activity”

has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes Second, interpretation of “substantially

limits” has been changed• Must evaluate impairment that is episodic or in

remission in active state• Must not consider mitigating measures

Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and

go” or has good and bad days

No “Mitigating Measures”

A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating

a hypothetical student

Mitigating Measures

Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary

eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive

neurological modifications Reasonable accommodations or other

auxiliary aids or services

Transitory Impairments A “transitory impairment” is defined

as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of

which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School

Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

So, Let’s Get Practical

Admission • Colleges may not deny admission, on

the basis of disability, to qualified students with disabilities

• Students with disabilities do not have to disclose their disability before admission, or after admission unless they want academic adjustments or auxiliary aids or services

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Pushkin v. Regents of Univ. of Colo.,10th Cir.

• MD with multiple sclerosis applying for medical residency in Psychiatry unit

• Denied admission• Admissions committee

– Concerned about how patients would react– Hadn’t come to terms with his disability– Would not be able to handle stress– Would require too much medical care to satisfy

requirements of residency34

Pushkin v. Regents of Univ. of Colo.,10th Cir.

• Court: College loses• No individualized inquiry• Committee relied on 45 minute

interview• Stereotypes and assumptions

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Northern Oklahoma College,32 NDLR 198 (OCR 2005)

• Hearing impaired student enrolled in radiation tech program

• After admission, informed college that she needed interpreter on 1:1 basis for all classes

• College sought to revoke admission to the program

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Northern Oklahoma College,32 NDLR 198 (OCR 2005)

• OCR reasonable basis to investigate• College settled

–Provided interpreter–Counseling service to ensure student

remains on track to graduate–Monitoring by OCR

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Academic Adjustments • Must make modifications to academic

requirements to ensure requirements do not discriminate on the basis of disability

• Examples of possible modifications are: – change in length of time to complete a

program– substitution of courses – adaptation of manner in which courses

are conducted40

Gluckenberger v. Boston Univ,(OCR 2011)

• Class action against BU by students with learning disabilities principally because BU discontinued allowing substitutions of foreign language courses

• BU allowing substitutions would lower academic standards

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Gluckenberger v. Boston Univ,(OCR 2011)

• Court: BU engaged in deliberative process in determining which majors needed foreign language

• Cannot refuse course substitutions per se, but can show on a program by program basis

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Auxiliary Aids Colleges must take such steps as are necessary to ensure that no student with a disability is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.

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In re Bakersfield College,(OCR 2011)

• College funding cut; shortage of sign language interpreters

• When interpreter not available, class was videotaped and interpreter watched later with student

• Student still had to attend classes• Roughly 6% of classes had to be taped

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In re Bakersfield College,(OCR 2011)

• College “well intentioned and creative” but violated federal law

• Students couldn’t ask questions• E.g. of automotive class• Funding cut is irrelevant • Videotaping could have been ok:

needed to engage in interactive process with students beforehand

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Examples of Auxiliary Aids• Taped texts• Notetakers• Interpreters• Readers• Adapted classroom equipment • Braille versions of written materials• Use of calculators in math

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What Is Not Required • Colleges are not required to provide

devices or services of a personal nature• Examples:

–Attendants– Individually prescribed devices–Readers for personal use or study

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Accessible Communications & Auxiliary Aids (ADA)

• Communications must be “as effective as” communications with non-disabled

• Public entity must furnish “appropriate” auxiliary aids and services where necessary for equal opportunity

• Must give “primary consideration” to requests of person with disability but is not required to honor preference if effective alternative is available

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Tests/Examinations • Test format and administration should

measure student’s achievement, not impaired sensory, manual, or speaking skills (except where such skills are the factors the test purports to measure)

• Examples of possible modifications: – tape vs. print– extended time– Reader– Calculator

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Wynne v. Tufts Univ. Sch. Of Med.,(1st Cir. 1991 and 1992)

• Student has learning disability• Asked college not to use multiple choice

tests• College refused• Student academically dismissed • Sued claiming failure to provide

reasonable accommodation

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Wynne v. Tufts Univ. Sch. Of Med.,(1st Cir. 1991 and 1992)

• Court: college must show “it sought out reasonable means of accommodating students with disabilities”

• First appeal: send down for more evidence

• Second appeal: college won– Multiple choice teaches critical thinking skills– Other options explored – Testing change would lower academic standards

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Appropriateness of Auxiliary Aids

• College is not required to ensure students have the most sophisticated auxiliary aids available

• College does not necessarily have to provide the requested service, only ensure that an appropriate service is provided

• Aids provided must meet the needs of the student with a disability

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Appropriateness of Auxiliary Aids

• College is not required to produce identical result or level of achievement

• College must afford equal opportunity to:–obtain the same result,–gain the same benefit, or–reach the same level of achievement

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Range of Services

• Different services for different disabilities

• Different services depending upon the nature and extent of disability (functional limitations)

• Different services for different academic programs

Service Animals

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Service Animals

• Different services for different disabilities

• Different services depending upon the nature and extent of disability (functional limitations)

• Different services for different academic programs

Service Animals ADAAA: public facilities cannot refuse to

allow disabled individuals access due to their disability

United States v U of Neb at Kearney,(D. Neb. 2013)

• Student with depression and anxiety had therapy dog

• UNK refused to allow dog to live in dorms

• UNK: dog is pet, not service animal • Justice department intervened on behalf

of student

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United States v U of Neb at Kearney,(D. Neb. 2013)

• Court: college housing covered by the ADA and Fair Housing Act

• Student has verified disability; dog verified service animal

• Trial set for May, 2014

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Service Animal Defined Dog or miniature horse Trained to do work or perform tasks for

the benefit if individual with disability Service must be directly related to

disability “Service” is not

• Emotional• Crime prevention• Companionship

Training Issues

College MAY NOT require proof of training or other certification

May require animal to be removed if • out of control • Animal not housebroken

Section 504 Update for CCC Faculty

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase