Nondiscrimination in Higher Education
Congress passed the Rehabilitation Act of 1973, it included Section 504 which
forbade discrimination against persons with disabilities by programs and
activities receiving federal financial assistance, which included virtually
every institution of higher education, except the U.S. military academies and a
few small religious schools. This was the first civil rights
statute designed to prevent discrimination against persons with disabilities and
was patterned after the Civil Rights Act of 1964. The Americans
with Disabilities Act of 1990 (ADA) was patterned after Section 504.
It, too, requires that students with disabilities may not be excluded
from participation in, or be denied the benefits of, or be subjected to
discrimination by any institution which is subject to the ADA. The ADA does not
require that the institution receive federal financial assistance.
individual who has a physical or mental impairment which substantially limits a
major life activity; has a record of having such an impairment; or is regarded
as having such an impairment is protected by the law, as discrimination has many
faces. Most faculty, however, will find themselves dealing with
students who meet the first prong of the definition — an impairment which
presents a substantial limitation to a major life activity.
does this affect my college or university?
postsecondary institution must make reasonable accommodations in order to
provide students with disabilities an equal opportunity to participate in the
institution’s courses, programs and activities. This includes
extracurricular activities. Colleges must make “academic
adjustments” to ensure that a student has an equal opportunity to
participate. Academic adjustments may include extended time for
test taking, completion of course work or graduation; tape recording of classes;
substitution of specific courses to meet degree requirements; modification of
test taking or performance evaluations so as not to discriminate against a
person’s sensory, speaking or motor impairments, unless that is what is being
college or university must also provide “auxiliary aids and services,” such as
qualified sign language interpreters, notetakers, readers, braille and large
print materials, and adaptive equipment. A qualified
interpreter is one who can communicate expressively and receptively, using
any specialized vocabulary in a manner that is effective, accurate, and
impartial. Institutions are not responsible for providing personal
services such as attendants, hearing aids, glasses, etc. Under the
applicable regulations, tutoring is a personal service. Therefore,
it need not be provided unless the school provides tutoring to other students,
in which case it must make that tutoring program accessible to students with
disabilities. Institutions may not charge money for reasonable
do not have to provide accommodations that would “fundamentally alter” the
educational program or academic requirements which are essential to a program of
study or to fulfill licensing requirements. The determination of
what is a fundamental alteration, however, is one which requires specific steps
and a reasoned, determinative process on the part of the campus
community. Remember, the ADA is a remedial statute which requires
that colleges and universities question their notions of what is truly
fundamental and provide for alternate methods of achieving the results intended
by the educational program.
is my Role as a Faculty Member?
a faculty member, you are an integral part of your institution’s efforts to
comply with these laws. Just as you are not free to discriminate
against students on the basis of race, religion, gender or ethnicity, so too,
you cannot discriminate against students with disabilities. Part
of not discriminating against students with disabilities is the provision of
reasonable accommodations or “academic adjustments” and “auxiliary aids and
services”. Institutional compliance is a shared responsibility of
which faculty are a necessary part. Your employment in that
capacity requires that you assist the institution in fulfilling its compliance
responsibilities in connection with the ADA as well as other civil rights
Dos and Don’ts
Ask questions if you don’t understand something or are not sure how to
proceed — your Disability Services office can be very helpful in this
Hold up your end with regard to accommodations which have been determined
to be appropriate. This may include asking class members to
volunteer to take notes or providing copies of exams to the disability services
office in order for a student to take the examination under alternate
circumstances, such as extended time, using a scribe or braille, etc.
• Treat students with disabilities with the same courtesies you
would afford to other students.
Respect the privacy of students with disabilities. They
need not disclose their disability to fellow students. While they
must disclose disability to a designated official at your college in order to
access accommodations, this does not require disclosure to everyone.
Treat disability information which has been disclosed to
you as confidential.
Raise appropriate questions. Questions may lead to your
college’s addressing certain types of requests more consistently
and more thoroughly in the future.
Assist students in following the university’s policies, such as possible
requirements that all requests for accommodation be lodged with the Disability
Services office and not individual faculty members alone. This
protects students, faculty, and the institution by ensuring consistency and
takes much of the burden off individual faculty members, who are often
ill-equipped to determine whether an accommodation is appropriate or how to
provide it. Violations have been found in cases where faculty
members have not followed institutional policies.
Engage in philosophical debates about “fairness” to other, nondisabled
students, or whether providing accommodations somehow violates your academic
freedom. These arguments are unavailing for several
reasons. First, philosophical debates about whether and how equal
educational opportunities are provided to students with disabilities are legally
meaningless. Congress has determined how we as a society should
address equal access to education by passing federal civil rights statutes
protecting the rights of persons with disabilities, without adversely impacting
those without disabilities. Congress has been joined in this
effort by most state legislatures as well. Second, academic
freedom is not preemptive of federal civil rights statutes.
Decide not to provide the academic adjustments which have been approved
by the institution’s designee. You may subject your institution or
yourself to liability.
Leave a student adrift without accommodations. If no
volunteers are willing to take notes in a class, make sure the student knows who
to see to rectify this in another manner.
Refuse to permit students to tape record lectures as an
accommodation. General policies which permit instructors to refuse
the use of tape recorders, without providing for their use by students with
disabilities, are legally insufficient.
Refuse to provide copies of handouts, or orally describe information
written on the chalkboard, or face the class when referring to something written
on the chalkboard, etc., if these accommodations have been determined to be
appropriate for a student.
Refuse to provide extended time for tests on the mistaken assumption that
doing so would require that all students be given additional time.
Refuse to provide accommodations until you have personally evaluated a
student’s documentation of disability. Eligibility for services
under the ADA is the job of the disability services personnel, not the faculty.
Make assumptions about a student’s ability to work in a particular field.
Most often, concerns that students may not be able to “cut it” are based on
fears and assumptions, not facts. Remember too, that employers are
also required to comply with the ADA.