The Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act apply to almost all colleges, universities, and trade schools. The laws mandate an equal opportunity for students with disabilities – they’re entitled to benefit from all the services of those institutions and to use campus facilities.
New ADA regulations from the Department of Justice
On September 15, 2010, the Department of Justice issued new ADA regulations. The long-awaited rules are the first major revisions since the ADA was enacted and bring sweeping changes for the next decades, and they have significant impacts on higher education. For example,
- Only dogs that perform specific tasks or do work for an individual with disabilities are considered “service animals” for ADA purposes.
- At colleges and universities, the standards that apply to hotels now specifically apply to residence halls and dormitories. Individual apartments and town houses would be treated as residential facilities, with different requirements.
- Direct access to stages from audience seating areas are required.
- The regulations impose more detailed and demanding policy requirements concerning equity in ticketing for accessible stadium seating.
Overall, the new accessibility standards are more extensive and more detailed, requiring
- A greater number of required accessible entrances, in some cases
- More accessible van spaces
- Lower limit on reach ranges for controls, elevator buttons, light switches, etc. (48” vs. the 54” now allowed in some cases)
- Specific accessibility features for play and recreation facilities, including swimming facilities and golf courses
But in some instances the new standards reduce current accessibility requirements:
- Fewer assistive listening devices required in auditoriums (but more than one type required)
- Fewer wheelchair seating areas required for some assembly areas (such as stadiums and performing arts centers), but with more specifications as to specialty seating areas, dispersal, and viewing angles.
You probably know that as a college or university, you need to respond to individual requests for accessibility improvements – adding an automatic door opener to a particular building, moving furniture in a classroom for a student who uses a wheelchair, adjusting door pressure, including Braille or raised characters on signage at particular rooms.
But did you know?…
When it comes to physical access, the “individual accommodation” response is not enough. Public colleges need a plan for “program access,” and private colleges need to remove barriers and ensure equal opportunity. You should work to —
- improve access overall for students, faculty, staff, and visitors
- maintain accessible features
- inform users of accessible facilities and routes
- move services and classes to accessible locations with notice
- respond to individual requests in a timely way
You probably know that often, when a student isn’t happy with a response to an individual request, the result is a complaint to the U.S. Department of Education’s Office for Civil Rights (OCR). The routine OCR response is to investigate, possibly make a campus visit, and resolve the complaint with a letter of resolution or an agreement.
But did you know?…
The federal government and individual litigants have ramped up efforts to ensure equal access to facilities.
- The Department of Justice (DOJ) now conducts comprehensive compliance reviews of access to selected campuses and has entered several enforceable settlement agreements. Two agreements are with proprietary (trade) schools.
- Individuals are increasingly “taking it to court” and not just relying on the federal government for enforcement.
- The Department of Education made its first referral of an administrative complaint for litigation – in the University of Michigan case – to DOJ in 2008. DOJ joined in private litigation and secured a consent decree requiring changes to UM’s “Big House,” the largest university stadium in the country.
Most recent higher education agreement from DOJ
On September 16, 2010, DOJ announced its eighth settlement agreement to result from its efforts to address physical access to universities. This agreement, with McNeese State University in Louisiana and the Board of Supervisors of the Louisiana System, is the first of its kind with a public university and resulted from a compliance review that began after the state attorney general’s office took the position – in private ADA litigation against the campus – that it was not required to have an accessible toilet room in its primary student union building.
Under the agreement, the university will
- Bring all newly constructed facilities into compliance with the ADA Standards
- Develop and implement a campus wide Physical Access Plan to bring all covered facilities into compliance with Title II of the ADA. The Physical Access Plan will include specific remedial actions and time tables to ensure that the university’s programs, services and activities afford program access by no later than Sept. 1, 2016;
- Display information on its website about disability access and create and/or update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans for individuals with disabilities; and
- Designate an ADA coordinator.
In addition to the specific work required, the state board of supervisors has begun procedural changes to emphasize ADA accessibility rules and regulations for capital outlay projects for the University of Louisiana System.
The DOJ agreements are available at the Americans with Disabilities Act web site.
You probably know that if your institution receives federal financial assistance, you’re subject to section 504 of the Rehabilitation Act and OCR’s complaint process. Almost all colleges – except for a handful of private colleges that refuse federal financial assistance – are covered. If you’re a public college, you’re also subject to title II of the ADA, DOJ’s regulation, and OCR’s complaint process.
But did you know?…
Title III of the ADA applies to all private colleges (except those that qualify for the “religious entity” exemption) whether or not they receive federal funds. The DOJ reviews focus on private colleges. They have to comply with DOJ’s title III rule. DOJ can litigate and get civil penalties and damages for individuals (which it hasn’t done in these cases so far). DOJ has agreements with several private colleges. (See sidebar.)
You probably know that individuals can file litigation under the ADA and section 504.
But did you know?…
Individuals and groups can get – and recently have gotten – extensive relief by doing so. In one case, a community college agreed to spend at least $7.5 million for accessibility improvements to its campuses, pay damages and $1.6 million in attorneys’ fees, and check and maintain all access features on a prescribed schedule.
You probably know that you should have plans for evacuating your buildings in the event of an emergency.
But did you know?…
As a matter of civil rights, you have an obligation under the ADA to ensure equal opportunity for people with disabilities. That duty extends to any plans you may have for evacuating buildings, communicating with the university community in an emergency, sheltering students or the community, or providing transportation in an emergency. DOJ includes a requirement for addressing these issues with respect to people with disabilities in almost all of its higher education agreements. (See sidebar.)
Whether you’re trying to comply with section 504, title II, or title III, ADA One can put Irene Bowen’s knowledge and hands-on experience to work for you.
Ms. Bowen spearheaded the Department of Justice’s ongoing higher education initiative. She oversaw comprehensive reviews of campus access and agreements with the University of Chicago, Swarthmore College, Colorado College, and EDMC’s Brown Mackie Colleges (DOJ’s first agreement of this kind with a proprietary (trade) school). She also supervised DOJ’s cases involving the NCAA and the Southeastern Conference concerning academic eligibility rules for student athletes with disabilities, as well as several cases concerning provision of qualified readers and interpreters for exams or courses.
ADA One offers assessments, training, and dispute resolution services. We can guide you in taking preventive action and planning for access. That shows “good faith,” a factor in assessing civil penalties under title III of the ADA. Then you’re positioned for a reasonable response to possible complaints or private litigation.