2000 Conference Proceedings
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Rights To Assistive Technology In Higher Education
Protection and Advocacy, Inc.
100 Howe Avenue, Suite 235N, Sacramento, CA 95825
Tel: (916) 488-9950/Fax: (916) 488-9960
There are four laws that prohibit discrimination based on
disability, and require equal opportunities for people with
disabilities to participate in society. They are:
- Section 504 of the Rehabilitation Act (Section 504),
- The Americans with Disabilities Act (ADA),
- The Unruh Civil Rights Act (Unruh Act), and
- California Civil Code Section 54
Under these four laws, higher education institutions such as
colleges and universities must provide equal opportunities to
people with disabilities in all their programs, services and
activities. If they fail to do so, they are discriminating on
the basis of disability. The first two laws are federal which
means they apply to colldges in the entire country. The last
two are exclusive to California and only cover schools within
the state. There are many similar provisions and requirements
in all these laws. But there are also important differences
among them. It is critical that you know which law applies to
your specific school. Under certain circumstances, all these
laws may apply in your situation. In which case, you need to
know which law gives you the highest protection.
To avoid discrimination, higher education institutions must
take necessary steps to ensure the enjoyment by people with
disabilities of any aid, benefit or service they make available
to non-disabled individuals. In some instances, they would
fulfill this obligation by providing assistive devices,
auxiliary aids and other technologies that can help people with
disabilities receive the same benefits as others.
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In this chapter, we will describe the laws that apply to
higher education and the actions that are discriminatory. We
will also explain how you should go about asking for a device
you need, and what you can do if your college discriminates
against you. Finally, we will outline what type of devices and
accommodations your college is not required to provide.
- To what institutions do the laws apply?
Section 504 of the Rehabilitation Act prohibits higher
education institutions which receive federal financial
assistance from discriminating on the basis of disability.
Virtually all these schools receive some form of federal
funds. Student financial aid loan programs are an example of
federal assistance. Section 504 has precise rules on what
colleges and universities must do. These rules are found in
title 34 of the Code of Federal Regulations.
The ADA extends the prohibitions of discrimination based on
disability to most public and private schools whether or not
they receive federal funds. Since virtually all public
colleges and universities receive federal monies, these
institutions are covered by both the ADA and Section 504. The
ADA is modelled after Section 504. Thus, the rules under
these laws are very similar. In some cases, however, Section
504 is more precise and provides more remedies. In these
cases, courts will read the ADA consistent with Section 504.
That means if you make a complaint under the ADA, you will be
entitled to the higher protection of Section 504.
The ADA has five titles which are like chapters in a book.
Two of these titles cover higher education institutions.
Title II prohibits public entities, which include state and
local schools such as public community colleges, California
State Universities, and Universities of California, from
discriminating against people with disabilities in their
programs, services, and activities. You can find references
to Title II regulations under 28 C.F.R. Part 35.
Title III prohibits public accommodations, which include
private colleges and universities and, private trade schools,
from discriminating against persons with disabilities in
their services, facilities, privileges, advantages, or
accommodations. Title III rules can be found in 28 C.F.R.
The Unruh Act, and California Civil Code Section 54
The Unruh Act is a state law. It prohibits discrimination
based on disability by any business establishment which
includes all public and private schools. Civil Code section
54 and its related sections are also state law. They
guarantee people with disabilities, as members of the general
public, full and equal access to accommodations, advantages,
facilities of public accommodations. Although Neither law
provides for assistive technology, any violation of the ADA
is also a violation of the Unruh Act and a violation of Civil
Code Section 54. This is important since these two state laws
provide remedies different from those under the ADA and
Section 504. See question 27 below for more
- How can I know if I am protected by the laws?
To be protected by these laws, you must be qualified for the
educational program or college activity in which you want to
participate and, have a disability.
You are "qualified" if, with or without reasonable
accommodation, you meet the academic and technical standards
required for admission or participation in the program or
activity. 34 C.F.R. Section 104.43(k)(3). For example, if you
apply for law school after you take the admission test with
accommodation and receive a score below that required for
non-disabled students to be admitted, you might not be
considered qualified for admission.
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Having a disability may occur in three ways:
- You have a physical or mental impairment that
substantially limits one or more of your major life
activities such as learning, working, seeing, hearing,
speaking, performing manual tasks, walking, breathing and
caring for yourself, or
- You have a record of such an impairment (such as a
disease in remission); or
- You are regarded as having such an impairment (such as a
person who has severe burns but has no impairments). 42
U.S.C. Section 12102; 28 U.S.C. Section 35.104, 28 U.S.C.
Section 36.104 (ADA); 29 U.S.C. Section 706(8)(B); 34 C.F.R.
Section 104.3 (Rehabilitation Act); California Civil Code
What kind of actions are discriminatory under the
The purpose behind the laws described in this chapter is
to ensure you have an equal opportunity to participate in
and benefit from the programs, services and activities
provided to other students. It is, therefore,
discriminatory for higher education institutions to take
any action, or refuse to take appropriate actions that have
the purpose or effect of denying you the enjoyment of any
right, privilege, advantage or opportunity enjoyed by other
The ADA and Section 504 have specific provisions that
establish what actions are discriminatory. The following
are some of the more relevant provisions of these laws that
apply to colleges and universities.
It is discriminatory for a college or university to:
- Utilize eligibility criteria that screen out or tend
to screen out qualified individuals with disabilities. 28
C.F.R. Section 35.130(b)(8)
- Deny you the right to participate in or receive any
aid, benefit or service it provides. This means, your
college must ensure that it provides you aids, benefits
and services that are equal to those provided to others
and, that they are as effective in affording you equal
opportunity to obtain the same result, to gain the same
benefits or to reach the same level of achievement as
those provided to others. 28 C.F.R.
- Provide you different and separate benefits or
services than are provided to others unless such action
is necessary to provide you with services that are as
effective as those provided to others. 28 C.F.R. Section
35.130(b)((1)(iv). Keep in mind, your college may not
deny you the opportunity to participate in programs or
activities that are not separate or different, despite
the existence of permissibly separate or different
programs. 28 C.F.R. Section 35.130(b)(2). Moreover, the
law requires your college to administer its programs in
the most integrated setting appropriate to your needs. 28
C.F.R. Section 35.130(b)(8)(d),
- Perpetuate discrimination against you by providing
significant assistance to an agency that discriminates on
the basis of disability in providing any aid, benefit or
service to students and beneficiaries of your college. 28
C.F.R. Section 35.130(b)(1)(v) and,
- Make selections of site and location of a facility
that prevent you fusing that facility or its services. 28
C.F.R. Section 35.130(b)(4)(i)(ii).
I need a special device in order to participate in my
educational program. Does my college have to provide
To make sure its programs and activities are fully
accessible to you, your college must provide you with
reasonable accommodations. One form of reasonable
accommodation is provision of assistive technology which
includes any device that enables you to overcome your
disability so that you can participate in the program or
activity for which you qualify.
The ADA and Section 504 do not use the term assistive
technology. Instead, they use terms such as auxiliary aids
and services for effective communication and modification
to policies, practices and procedures.
Effective communication means higher education
institutions must communicate with applicants and students
with disabilities as effectively as they communicate with
others. 28 C.F.R. Section 35.160. To do so and, to give
equal opportunity for participation in its programs, these
institutions must furnish auxiliary aids and services. 28
C.F.R. Section 35.160(b)(1).
Colleges and universities communicate with their
applicants and students in numerous settings, for instance,
in admissions, financial aid programs, academics and
graduations. Communications may be written or oral. For
example, in a classroom, information on a course is
provided both orally by the professor as well as through
course materials which are handed out during the term of
the class. Students with disabilities are entitled to
receive such information in a manner and format which is as
effective as those provided to others.
Auxiliary aids and services are a wide range of services
and devices such as:
- taped texts
- video displays
- television enlargers
- talking calculators
- electronic readers
- Braille calculators, printers, or typewriters
- telephone handset amplifiers
- closed caption decoders
- open and closed captions
- voice synthesizers
- specialized gym equipment
- calculators or keyboards with large buttons
- reaching devices for library use
- raised-line drawing kits
- assistive listening devices or systems
The listed examples can be found in an OCR publication
entitled, "Auxiliary Aids and Services for Postsecondary
Students with Disabilities: Higher Education's Obligations
under Section 504 And The ADA," U.S. Department of
Education, Office of Civil Rights, Washington, D.C.,
Revised October 1996; 34 C.F.R. Section 104.44(d)(2).
In addition, colleges and universities must make
reasonable modifications to their policies, practices and
procedures when such modifications are necessary to afford
equal treatment to students with disabilities. A college,
for instance, may have to waive a ban on taping class
instructions to allow a visually impaired student to
benefit from course information discussed in class. Or, a
college may have to modify its policy to allow a disabled
student to link his adaptive device to its computerized
library system so that the student can conduct his research
- Can my college require me to request an accommodation
before the accommodation is needed?
Yes. An institution can require a student to request an
accommodation a reasonable time prior to when the
accommodation is needed so the institution can make
appropriate arrangements. See DOJ's Title III Tech. Assist.
Manual, Section III-4.6100.
- Do I have to provide proof of my disability to get an
You might. Universities and colleges are only required to
accommodate known disabilities. If your disability is not
obvious and the school requests proof of your disability, you
must provide it. To show that you are entitled to reasonable
accommodations it is best to get a letter from a medical
professional who is familiar with you and your
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