2000 Conference Proceedings

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Rights To Assistive Technology In Higher Education

Michael Kluk
Protection and Advocacy, Inc.
100 Howe Avenue, Suite 235N, Sacramento, CA 95825
Tel: (916) 488-9950/Fax: (916) 488-9960
Email: mikek@pai-ca.org

 



There are four laws that prohibit discrimination based on disability, and require equal opportunities for people with disabilities to participate in society. They are:

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.

  1. 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. Part 36.

    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 information.
  2. 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:

  1. 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
  2. You have a record of such an impairment (such as a disease in remission); or
  3. 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 Section 54.
  4. What kind of actions are discriminatory under the laws?

    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 students.

    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:
  5. I need a special device in order to participate in my educational program. Does my college have to provide it?

    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:
    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 project.
  6. 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.
  7. Do I have to provide proof of my disability to get an accommodation?

    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 disability.

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