Transition Issues Under Title II of the ADA and Section 504 MPACT 10 th Annual Transition Summit October 9, 2018 Presentation by: U.S. Department of Education Office for Civil Rights (OCR) 1
Presenter: Claire D. Fitzgerald Attorney, OCR claire.fitzgerald@ed.gov 816-268-0559 2
Objectives Who is OCR? How does OCR assist with the transition of students from high school to college? What does Federal law require for students with disabilities in college? 3
OCR is A component of the U.S. Department of Education Responsible for ensuring compliance with certain Federal civil rights laws in colleges and public school districts Comprised of 12 regional enforcement offices with HQ in Washington, DC 4
Disability Laws Enforced by OCR Section 504 of the Rehabilitation Act of 1973 (Section 504) - prohibits discrimination by colleges that receive Federal financial assistance Title II of the Americans with Disabilities Act of 1990 (Title II) - prohibits discrimination by “public” colleges (those that are considered part of state or local governmental entities) 5
OCR Assistance With Transition: If a student or her parent believes the student has been subjected to disability discrimination, OCR can attempt to resolve the matter through mediation or an investigation. Generally, agreements to address any discrimination call for prospective corrective action, not punitive action or monetary damages. OCR also provides technical assistance to students, parents, and schools. 6
Federal Legal Requirements for Students with Disabilities in College 7
Requirements Are Not The Same As At The ESE Level At the elementary and secondary school level, every student who is of an appropriate age to attend school is entitled to a free appropriate public education, which usually involves having an IEP or 504 plan developed by an IEP or 504 team with significant involvement of the student’s parents. Responsibility falls on the school to locate, identify, and serve every student with a disability. 8
In College: In college, only those students with a disability who meet the academic and technical standards requisite for admission or participation in the college’s education program (Section 504), or who meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity (Title II) are covered by the Federal disability laws (“qualified” individual with a disability). 9
Also: A college may exclude from its programs and does not have to accommodate a student who poses a direct threat to the health or safety of others, or a student who is currently engaging in the illegal use of drugs, when the exclusion/ refusal to accommodate is based on the illegal drug use. 10
Case #1: Student with a disability attends a high school that offers a diploma for meeting graduation standards and a certificate of completion for only meeting the goals set forth in the student’s IEP. The Student earns a certificate of completion. Student applies to a four-year university that requires a high school diploma for admission. University denies admission to the student. What result? 11
Admission Generally, colleges may not make preadmission inquiries as to whether an applicant is a person with a disability. After admission, a college may make inquiries on a confidential basis as to disabilities that may require accommodation. 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. 12
Process: Colleges may establish reasonable policies and procedures for providing services to students with disabilities It is the student’s responsibility to know and follow the procedures Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities , http://www.ed.gov/ocr/transition.html, “If I want an academic adjustment, what must I do?” 13
Process (2): Usually: Student must contact the Disability Services Office and identify himself/herself as a student with a disability Student must provide reasonably current documentation of his/her disability and the need for academic adjustments, auxiliary aids, or other services/modifications 14
Documentation: A copy of a high school IEP or 504 plan may provide helpful information but is normally not sufficient to meet a college’s documentation requirements An assessment or evaluation (ordinarily at student expense) should be reasonably current and clearly identify disability and functional limitations and the need for academic adjustment or auxiliary aids or services. 15
Documentation (2): Purposes of documentation: Diagnostic, to establish a disability Prescriptive, to help college work with student to identify appropriate accommodations Show relationship between disability and need for accommodations 16
Interactive Process (1): The college and the student should engage in an on-going “interactive process” to discuss: Whether the student’s documentation is sufficient Whether the student is eligible for academic adjustments and/or auxiliary aids and services, and, if so 17
Interactive Process (2): What academic adjustments, auxiliary aids/ services, and/or other modifications the student will receive What academic adjustments, auxiliary aids/ services, and/or other modifications are not effective and how they need to be modified or altered 18
Case 2: Student had a peanut allergy but did not initially tell his college. He was using a George Foreman grill to cook in his dorm room to avoid peanut contamination. The State fire agency said the use of heated personal cooking appliances in dorm rooms was a fire code violation and the college banned them. The Student then disclosed his allergy and requested to continue using the grill as a disability accommodation. 19
Case 2 (cont’d): College requested documentation of the peanut allergy, which the Student provided. College confirmed with the Student that he actively used the college meal plan. The only peanut product used in Food Services was peanut butter in individually wrapped sandwiches that were not opened in the dining hall. 20
Case 2 (cont’d): College already provided a microwave in the dorms, determined this was sufficient for the Student to cook in his room, and denied his request to continue using the Foreman grill. Student did not request any further accommodations after the denial and requested to continue to use his meal plan. Student then filed an OCR complaint. What result? 21
Case 2 (cont’d): OCR determined no violation because college engaged in an interactive process with the Student regarding his accommodation request and, after the college denied the Foreman Grill, Student did not attempt to further engage in an interactive process. 22
Requirements: College must make modifications to academic requirements to ensure the requirements do not discriminate on the basis of disability against a qualified person with a 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 conducted 23
What Is Not Required College is not required to change academic requirements that are essential to The course of instruction being pursued by the student; or Any directly related licensing requirement. College is not required to alter the fundamental nature of a program or make a change constituting an undue burden. OCR (and the courts) gives appropriate deference to the academic discretion of a college. 24
Examples of Possible Auxiliary Aids and Services Taped texts Notetakers Interpreters Readers Real-time captioning Adapted classroom equipment Braille versions of written materials 25
What Is Not Required College is not required to provide auxiliary aids or services that it can demonstrate would be A fundamental alteration to a program; or Undue financial or administrative burdens Or devices or services of a personal nature Attendants Individually prescribed devices Readers for personal use or study 26
Testing/Course Examinations Test/Graded Assignment format and administration should measure a student’s achievement, not the student’s impaired sensory, manual, or speaking skills (except where such skills are the factors the test purports to measure). Examples of possible modifications would be tape vs. print, extended time, a reader or scribe, etc. An institution is not required to change the substantive content of the tests. 27
Other Considerations: Requests for academic adjustments/ auxiliary aids and services can be made at any time, but should be made as early as possible to ensure the college has an opportunity to provide what is needed (for example, resources such as books on tape, sign language interpreters, etc. may be difficult or time-consuming to obtain) 28
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