11/3/2019 Steve Gordon, AUSA, Civil Rights Enforcement Coordinator - PDF document

11/3/2019 Steve Gordon, AUSA, Civil Rights Enforcement Coordinator United States Attorney’s Office Eastern District of Virginia 1 Opinions Expressed Herein or Otherwise are those of the Speaker and do not Necessarily Reflect the Views of the United States Department of Justice. 2 ➢ ADA in higher education is a large area that could take at least a full day to cover. This presentation will provide a discussion of the applicability of the ADA to post-secondary education settings and then discuss a few selective issues. ➢ Developing an understanding and awareness of the ADA’s requirements in higher education. ➢ Recognizing ADA issues in higher education. 3 1

11/3/2019 ADA Basics ➢ Definition of a Disability ➢ Statistics ➢ ADA Applies to All Parts of An Institution of Higher Education, ➢ Including Academic and Non-Academic Programs and Services. ADA Legal principles That Apply in Higher Education Settings. ➢ The ADA’s Structural Requirements. ➢ Selective Issues that Arise in Higher Education Settings. ➢ Communication related disabilities ➢ Digital access ➢ Mental health issues ➢ Dining hall issues ➢ Testing accommodations ➢ Physical access ➢ Suggestions for Ensuring ADA Compliance: Be Proactive. ➢ 4 4 5 6 2

11/3/2019 ➢ Statute ➢ Regulations ➢ Technical Assistance ➢ Settlement Agreements ➢ Briefs 7 The ADA prohibits discrimination and ensures equal opportunities for persons with disabilities in: ➢ Employment (Title I) ➢ State and local government nment servi vices (Title II) (e.g., public unive versities, colleges, commu muni nity colleges, and workf kforce developme ment nt program ams) ➢ Public accommodations (Title III) (“undergraduate, or postgrad aduat uate privat ate school, or other place of education”) 8 The Americans with Disabilities Act, which was passed in 1990, represents a profound and historic shift in how people with disabilities are treated, which was the culmination of decades of advocacy. Enactment of the ADA evidenced Congress’ recognition that the inferior social and economic status of people with disabilities was not a consequence of the disability itself, but instead was a result of societal barriers and prejudices. As with racial minorities and women, Congress recognized that legislation was necessary to eradicate discriminatory policies and practices. 9 3

11/3/2019 “[H] istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; [D] D]iscrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;” 42 U.S.C. § 12101 10 In drafting the ADA, Congress wrote that “the Nation’s proper goals regarding individuals with disabilities are to assure equalit lity of oppor ortunit ity, full participation, independent living, and economic omic self- suffic icie iency for such individ ividuals ls .” 42 C.F.R. § 12101 (a)(8) (emphasis added). 11 No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132; see also 28 C.F.R. §§ 35.130(a); 35.152(b)(1). The ADA is a broad civil right hts statut ute that covers a wide range of activi vities. 12 4

11/3/2019 “The ADA . . . Specifically prohibits discrimination against [individuals with disabilities], not just based on invidious “affirmative animus,” but also based on thoughtlessness, apathy, and stereotypes about disabled persons.” Guckenburg v. Boston University , 974 F.Supp. 106 (D.Ma. 1997). 13  Failing to “make reasonable modifications to policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”  Failing to provide auxiliary aids or services to individuals who have communication disabilities.  Imposing a surcharge on an individual with a disability to cover the cost of compliance with the ADA. 28 C.F.R. §§ 35.130 & 35.160 14  Imposing “eligibility criteria that screen out or tend to screen out an individuals with a disability. . .”  Selecting a site for an activity that has the effect of excluding individuals with disabilities.  Segregating individuals with disabilities from others in the receipt of services.  Using methods of administration of a program that “have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.” 15 5

11/3/2019 The prohibitions in the ADA and its implementing regulations: “are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereot otyp ypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do.” Section-by-Section Analysis of the ADA regulations 16  Students with learning disabilities are lazy and are just not trying hard enough.  Students with learning disabilities are faking it to gain some unfair advantage.  Students with mental illness require extended leave when they request a leave of absence.  Students who are deaf are not cognitively capable.  Students who are deaf could communicate through lip reading if they just tried hard enough.  Students who are blind cannot live independently.  Students with mental health disabilities are always dangerous. 17 18 6

11/3/2019  A physical or mental impairment that substantially limits one or more major life activities ( e.g ., hearing, seeing, walking or operation of bodily function such as immune system).  A record of such an impairment.  Being regarded as having such an impairment.  If an individual with a disability is asymptomatic, may still be covered by the ADA. 42 U.S.C. § 12102 The ADA was amended in 2008 to overrule two Supreme Court cases that narrowly defined “disability.” 19 ➢ Walking ➢ Standing ➢ Performing Manual Tasks ➢ Lifting ➢ Seeing ➢ Bending ➢ Breathing ➢ Concentrating ➢ Hearing ➢ Learning ➢ Caring For One’s Self ➢ Speaking ➢ Working 20 ➢ Immune System ➢ Normal cell growth ➢ Digestive ➢ Bowel ➢ Bladder ➢ Neurological ➢ Brain ➢ Respiratory ➢ Circulatory 21 7

11/3/2019 ➢ Deafness or hard of hearing Autism ➢ ➢ Dyslexia and other specific Cancer ➢ learning disabilities Cerebral Palsy ➢ ➢ Blindness Diabetes ➢ ➢ Intellectual Disability Epilepsy ➢ ➢ Neurologic conditions (e.g., Addictions ➢ PTSD, bipolar disorder, TBI, Hypertension ➢ and schizophrenia) Digestive disorders ➢ ➢ Partially or completely missing Allergies ➢ limbs ➢ Mobility impairments 22 ➢ Dyslexia and other specific ➢ Arthritis learning disabilities ➢ Hypertension ➢ Mental illness ➢ Diabetes ➢ Posttraumatic stress disorder ➢ Intellectual disabilities (“PTSD”) ➢ Digestive disorders ➢ Traumatic brain injury (“TBI”) ➢ Cancer ➢ Epilepsy ➢ HIV 23  The Census Bureau reports that approximately 56.7 million people living in the US had some kind of disability in 2010.  The National Institute on Deafness and Other Communication Disorders (NIDCD) reports that one in eight people in the United States (13 percent, or 30 million) aged 12 or older has hearing loss in both ears, based on standard hearing examinations.  NIDCD reports that approximately 7.5 million people in the United States have trouble using their voices. 24 8

11/3/2019  According to the Census Bureau, approximately 7.3 million individuals in the United States report significant vision loss.  According to the Centers for Disease Control, 36.2 million adults have some kind of physical functioning difficulty.  The National Institute of Mental Health reports that in 2014, 9.8 million adults aged 18 or older have a serious mental illness that substantially interferes with or limits one or more major life activities. 25 What is the most common type of disability among students? 26 27 9

11/3/2019 28 Are individuals with dyslexia cognitively impaired? 29 According to the NIH, “Dyslexia is a brain -based type of learning disability that specifically impairs a person's ability to read. These individuals typically read at levels significantly lower than expected despite having normal intelligence. Although the disorder varies from person to person, common characteristics among people with dyslexia are difficulty with phonological processing (the manipulation of sounds), spelling, and/or rapid visual- verbal responding.” 30 10