Federal Laws

SECTION 504 OF THE REHABILITATION ACT OF 1973, AS AMENDED

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

The Office for Civil Rights in the U.S. Department of Education enforces regulations implementing Section 504 with respect to programs and activities that receive funding from the Department. The Section 504 regulation applies to all recipients of this federal funding, including colleges, universities, and postsecondary vocational education and adult education programs. Failure by these higher education schools to provide auxiliary aids to students with disabilities that results in a denial of a program benefit is discriminatory and prohibited by Section 504. “No otherwise qualified person with a disability in the United States shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving federal assistance.”

34 CFR §104.3(j)

A person with a disability is a person who:

  • Has a physical or mental impairment which substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

34 CFR §104.3(k)(3)

A qualified person with a disability is defined as a person who meets the academic and technical standards requisite to admission or participation in the post-secondary institution’s programs and activities.

Under the provision of Section 504, the University of Texas Rio Grande Valley in administering its admission policies may NOT:

    • Apply limitations upon the number or proportion of persons with disabilities who may be admitted.
    • Make pre‐admission inquiries as to whether an applicant has a disability.
    • Exclude an otherwise qualified student with a disability from any course of study.
    • Provide less financial assistance to students with disabilities than is provided to other students.
    • Measure student achievement using modes that adversely discriminate against a student with a disability.
    • Establish rules and policies that have the effect of limiting participation of students with disabilities in educational programs or activities.

34 CFR §104.4(b)(c)

Auxiliary Aids and Services

The Title II regulation states “a public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.”

Postsecondary School Provision of Auxiliary Aids

The Section 504 regulation contains the following requirement relating to a postsecondary school’s obligation to provide auxiliary aids to qualified students who have disabilities:

“A recipient… shall 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 under the education program or activity operated by the recipient because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.”  

It is the institution’s responsibility to provide these auxiliary aids and services in a timely manner to ensure effective participation by students with disabilities. If students are being evaluated to determine their eligibility under Section 504 or the ADA, the recipient must provide auxiliary aids in the interim.

A postsecondary student with a disability who is in need of auxiliary aids is obligated to provide notice of the nature of the disabling condition to the university and to assist it in identifying appropriate and effective auxiliary aids. In postsecondary schools, the students themselves must identify the need for an auxiliary aid and give adequate notice of the need. The student’s notification should be provided to the appropriate office of the university which, at UTRGV, is Student Accessibility Services. Unlike elementary or secondary schools, the university may ask the student, in response to a request for auxiliary aids, to provide supporting diagnostic test results and professional prescriptions for auxiliary aids. A postsecondary institution may also obtain its own professional determination of whether specific requested auxiliary aids are necessary.

Auxiliary aids and services include, but are not limited to, the following:

  • Alternate format texts
  • Note takers
  • Interpreters
  • Readers
  • Videotext displays
  • Television enlargers
  • Talking calculators
  • Electronic readers
  • Telephone handset amplifiers
  • Braille calculators, printers, or word processors
  • Closed caption decoders
  • Open and closed captioning
  • Voice synthesizers
  • Specialized gym equipment
  • Reaching device for library use
  • Raised line drawing kits
  • Assistive listening devices
  • Assistive listening systems
  • Calculators or keyboards with large buttons
  • Telecommunications devices for deaf and/or hard of hearing

The University is not required to provide the most sophisticated auxiliary aids available; however, the aids provided must effectively meet the needs of a student with a disability. The university has flexibility in choosing the specific aid or service it provides to the student, as long as the aid or service selected is effective. These aids are selected after consultation with the student who will use them. The Section 504 regulation also states “aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for disabled and nondisabled persons, but must afford individuals with disabilities equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.”

Cost of Auxiliary Aids

Postsecondary schools receiving federal financial assistance must provide effective auxiliary aids to students who are disabled. If an aid is necessary for classroom or other appropriate (non-personal) use, the university must make it available, unless provision of the aid would cause undue financial or administrative burden. A student with a disability may not be required to pay part or all of the costs of that aid or service. The university may not limit what it spends for auxiliary aids or services or refuse to provide auxiliary aids because it believes that other providers of these services exist, or condition its provision of auxiliary aids on availability of funds. In many cases, an institution may meet its obligation to provide auxiliary aids by assisting the student in obtaining the aid or obtaining reimbursement for the cost of an aid from an outside agency or organization such as a state rehabilitation agency or a private charitable organization. In all situations, however, the institution remains responsible for providing the aid.

Personal Aids and Services

An issue that is often misunderstood by postsecondary officials and students is the provision of personal aids and services. Personal aids and services, including help in bathing, dressing, or other personal care, are NOT required to be provided by postsecondary institutions. The Section 504 regulation states “recipient need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.” Postsecondary schools do not have to provide personal services relating to certain individual academic activities. Personal attendants and individually prescribed devices are the responsibility of the student who has a disability and are not the responsibility of the university.

SECTION 508 OF THE REHABILITATION ACT, AS AMENDED

On August 7, 1998, Congress amended Section 508 of the Rehabilitation Act to include proper access to electronic and information technology. This requires agencies that develop, procure, maintain, or use electronic and information technology to ensure that the materials are accessible. It is required that UTRGV must make all university maintained website and video materials accessible (i.e., websites should allow for the use of speech output systems for individuals who are blind or visually impaired, and videos must be captioned for individuals who are deaf or hard of hearing and audio-described for individuals who are blind or low vision.

THE AMERICANS WITH DISABILITIES ACT (ADA)

The Americans with Disabilities Act of 1990 is a civil rights law that extends the anti-discrimination legislation of Section 504 of the Rehabilitation Act to all institutions of higher education whether or not they receive federal financial assistance. Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. The purpose of this act is to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities. This statute became effective for public entities on January 26, 1992. It provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, state and local governments, public accommodations, and telecommunications. The Department of Education Office for Civil Rights enforces Title II in public colleges, universities, and graduate and professional schools. The requirements regarding the provision of auxiliary aids and services in higher education institutions described in the Section 504 regulation are generally included in the general nondiscrimination provisions of the Title II regulation.

ADA AMENDMENTS ACT OF 2008 (ADAAA)

Congress amended the ADA in 2008 and the ADA Amendments Act became effective on January 1, 2009. The amendments specifically provide that the definition of disability is to be interpreted broadly. Pertinent provisions include:

  • Reinstatement of the reasoning of School Board of Nassau County v. Arline, 480 U.S. 273 (1987) regarding the definition of disability.
  • Elimination of the use of mitigating measures, except in the limited circumstances of the use of eyeglasses and contact lenses, as a means of determining whether a “substantial limitation(s)” exists.
  • Rejection of the requirement that in order to be “substantially limited… 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.”
  • Admonishment that “the question whether an individual’s impairment is a disability under the ADA should not require extensive analysis.”
  • Expansion of the definition of major life activities to include activities such as reading, concentrating, working, learning and thinking.
  • Clarification that an impairment that substantially limits one major life activity is sufficient to satisfy the definition of disability.
  • Extension of coverage to individuals who have conditions that are episodic or in remission when those conditions are active.
  • Instructions to EEOC to revise the definition of “substantially limits” to provide for broader coverage in keeping with the amendments.
  • Expansion of the definition of auxiliary aids and services specifically with respect to methods of providing access to individuals with visual and hearing impairments.
  • Clarification of the definition of “regarded as” to provide protection to individuals whether or not the impairment in question is perceived as limiting a major life activity.
  • Clarification of coverage provision to establish that those protected under the “regarded as” provision are not entitled to reasonable accommodation.

Practices and procedures that are no longer acceptable under the ADAAA

  • It is expressly stated that an individual’s use of mitigating measures, such as medical treatments and/or self-accommodation skills, can no longer be the basis for arguing that the individual is not “substantially limited.” The actual manifestations of the condition and the documented functional limitations must be considered without attempts to minimize or discount the impact on the major life activities in question through speculation concerning mitigating measures.

  • The rejection of comparisons to “most people’s daily lives” and the admonishment that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” would seem to prohibit the practice of using any evidence of “average” ability or performance to stage an aggressive legal challenge to an individual’s claim of disability.

Disability determinations under the ADAAA

Under the provisions of the ADAAA, institutions are obligated to conduct a comprehensive individualized assessment prior to rejecting an individual’s disability claim. [Sec. 2(b)(3)]. Determinations of whether an individual meets the legal definition of disability are fact specific and must be based upon a review of all relevant information and data concerning the individual’s skills and abilities, the manifestations of the impairment(s), and the nature of the functional limitations experienced. Factors pertinent to the individualized assessment include:

  • Objective medical/education data
    • The student’s claims must be verified and supported by objective medical and/or educational data and a clear diagnosis. There should be information or data that identifies the impairment(s) and describes its impact relative to the deficiencies or limitations that the individual has identified. There must also be sufficient data provided about the nature of the impairment to permit an assessment of the duration, severity and the degree to which it impedes the individual’s ability to perform. Documentation that reflects no, minor, minimal or even moderate impact has been ruled not to support a disability determination.

  • Present level of performance
    • It is important to verify that the difficulties or limitations raised by the student are, in fact, reflected in his/her actual performance. The student’s level of performance, as well as his/her functional limitations, should be considered. There should be evidence or information provided that reflects the manifestations of the impairment and the extent to which they impact relevant activities. The key inquiry is whether the student’s abilities and/or performance are impacted with respect to a wide range of tasks that, taken together, can be classified as imposing limitations concerning a major life activity. Evidence of successful performance within the same or similar environment in which the student is claiming disability should raise serious questions concerning the claim. Evidence of poor performance should be assessed with respect to cause and effect. It is important not to ignore plausible non-disability related reasons that might explain or contribute to the student’s poor performance or difficulties.

  • Impact on major life activities
    • A student’s inability to perform tasks unique to a particular program, job, or course of study alone generally is not sufficient to establish a substantial limitation to a major life activity. The courts are comfortable with classifying the ability to learn, ability to read, and ability to process information as major life activities. They have been less willing to dissect the examination process into its many formats and constructs and identify isolated skills, such as, the ability to take standardized tests, long law school examinations, multiple choice examinations or timed standardized tests as major life activities. It must be established that the activity in question “relates or contributes to the ability to obtain a satisfactory education versus the ability to perform isolated or particular functions.” A comprehensive assessment of the student’s skills, abilities and limitations related to assimilating and processing information and functioning within the educational environment is what is necessary to determine whether the major life activity of learning is impacted.

  • History of past performance
    • Courts have been consistent in ruling that an academic and/or professional history “replete” with significant success and a high level of performance with little or no evidence of diagnosis, impairment or accommodation will NOT establish entitlement to accommodation even in the face of supportive psycho-educational test results and the accompanying opinion of well-credentialed experts. There must be evidence of “a consistent pattern over the years” of his/her performance having been impacted in a substantial manner by the impairment and/or evidence of previous accommodation before the courts will even entertain the possibility of the existence of a disability. Once such a pattern is shown, the courts will take a closer look at the how and why of the successful achievement. The onus is on the individual and his/her experts to provide concrete, objective evidence that establishes that the manner in which the success was achieved was not only in spite of the impairment but reinforces the existence and substantial impact of the impairment.

  • The individual’s behavior and statements
    • It is important not to overlook or minimize the student’s statements and behavior relative to the impact of the impairment. Behavior or statements that either buttress or contradict his/her assertions regarding the severity and impact of the functional limitations are extremely important. Courts have identified the following circumstances as challenges to the validity of a student’s disability claim:
      • The student fails to raise the issue of disability until the potential of adverse action arises.
      • The student attributes his/her poor performance to reasons other than disability.
      • When describing the impact of the impairment, the student minimizes the severity or seriousness of the impact.
      • Review of the student’s level and extent of participation or performance does not reflect the limitations or disabilities complained of.
    • Additionally, what the student says or does concerning the impairment can place the validity of their expert’s opinions in question. Opinions of experts that are primarily based upon the anecdotal reporting of the student may be discounted when the actions and/or statements of the student are inconsistent with the expert’s findings concerning the manifestations of the impairment(s) and the extent of functional limitation required.

Facility Access

The ADA requires existing facilities of some agencies to be accessible. The University of Texas Rio Grande Valley ensures that facilities are accessible to people with disabilities where access is readily achievable and not an undue financial burden. For new construction or renovations, the university must be in compliance with the Texas Accessibility Standards (TAS), which are administered and monitored by the Texas Department of Licensing and Regulation (TDLR). The TAS guidelines have been certified by the United States Department of Justice as conforming to the Americans with Disabilities Act Accessibility Guidelines (ADAAG).

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