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.

2010 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 aretreated as residential facilities, with different requirements.
  • Direct access to stages from audience seating areas is required.
  • The regulations impose more detailed and demanding policy requirements concerning equity in ticketing for accessible stadium seating.

Overall, the 2010 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 2010 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.
  • Under the 2010 regulations, the Department of Justice can now conduct investigations and compliance reviews of public colleges and universities under title II without a referral or delegation from the Department of Education.

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. DOJ has agreements with several private colleges.

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.

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, through assistance with policy review, self-evaluations, and training.

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.