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June 13, 2017 Jenny 0
How Accommodating is Your College?
June 13, 2017 Jenny
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By Darren K. Sharp, Partner, Co-leader of the Higher Education Industry Team, Armstrong Teasdale
Colleges seek diverse student bodies. One way to accomplish this goal is to attract and maintain qualified students who happen to have disabilities. College students with disabilities are afforded legal rights under the Americans with Disabilities Act (ADA), as amended, and Section 504 of the Rehabilitation Act (§504), including the right to seek reasonable accommodations from their schools to participate and succeed in their academic careers. This article addresses the more common legal accommodations provided under applicable federal statutes.
A "disability" is defined under the ADA and §504 as a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such impairment; or the person is regarded as having the impairment.1 Students with disabilities in postsecondary education are covered by the ADA,2 and §504.3 Title II of the ADA and §504 apply to public schools; §504 also applies to private schools receiving federal funding. Further, Title III of the ADA applies to private schools not operated by a religious entity. Reasonable accommodations under these statutes are often misunderstood or overlooked by colleges.
Service animals under the ADA
The most common legal accommodation provided on college campuses (and other public accommodations) under the ADA is the use of a dog as a service animal.4 A service animal can be any breed or size. Federal regulations also permit a miniature horse to serve as a service animal if the space limitations permit, and so long as the horse meets the other minimum requirements expected of dogs as service animals.5
A service animal is not a pet. A service animal assists a student with a disability with a specific action related to the student's disability. For example, a service dog may guide a blind person, pull a wheelchair, alert a deaf person to sounds, or alert and protect a person who suffers from seizures. The work or task that a service dog has been trained to provide must be directly related to the person's disability.
Under federal regulations, college staff can only ask certain questions to confirm the need or presence of a service animal. These include:
Is the animal required because of a disability?
What work or task has the dog been trained to perform to assist the disabled student?
Staff, however, may only ask these questions if the student's disability and/or the task the dog is to perform are not readily or visibly apparent.6
Conversely, questions that are not permissible include:
What is your disability and the extent of your disability?
Was the dog professionally trained?
Can you provide documentation of your service animal and its credentials?
A dog need not be trained professionally to perform the specified tasks related to the student's disability. The dog may be trained by the student-handler, or it may be trained professionally.
In addition, there is no requirement that a service animal have an identification tag showing that it is a service animal, nor is there any requirement that it wear a vest or harness that identifies it as a service dog. The latter may be encouraged by a college or university, but it cannot be required.
To that end, mandatory registration of service animals on campus is not permissible. Voluntary registration of a service animal is permissible to assist the disabled student under certain circumstances. For example, knowing that a disabled student with a service animal is located in a particular building or residence hall may assist during fire evacuations or in other emergency situations.
Federal regulations require that the "handler," or some other designated person, is responsible for the service animal. Those responsibilities include feeding the animal, veterinary care, grooming, cleaning up animal waste and being responsible for any property damage that may occur from the service animal. The college is not responsible for those items, nor is a roommate responsible for those items in the event a service animal is housed with a roommate who is not also the handler of the service animal.
The handler must be in full control of the service animal at all times.7 This can include using a leash, a tether, a harness, hand signals or voice commands depending on how the service animal is trained. A service animal is not allowed to wander, unless it is performing a task related to the student's disability.
Those exceptions include, if allowing a service animal would fundamentally alter the nature of a service or program. A classic example is a sterile environment such as a hospital or laboratory where animal fur could contaminate the environment. Other exceptions include if the service animal is not housebroken or is a direct threat to the health or safety of others, or if the service animal is out of control and the handler fails to take control on a repeated basis.8 These instances are typically handled on a case-by-case basis and require a repeated history of disruptive behavior or if corrective measures are not taken seriously.
A college or university may have restrictions on the presence of a service animal, including that the service animal have vaccinations and municipal licensing or tags, which are generally required under municipal laws. As previously stated, the college can also require the handler to clean up the waste and fur of the service animal. If the student and animal are living with a roommate in a residence hall, consent from that roommate should be required to avoid the possibility of pairing a roommate with allergies or uneasiness of living with a dog in small quarters. A college or university can also require that the handler of a service animal notify the college in the event there is an incident such as a bite or destruction of property caused by the service animal. Breeding the service animal on campus can also be prohibited. A college or university can also require that inspection of fleas, ticks, or pests within offices or residence halls occur periodically, as well as the prohibition of disruptive behavior such as repeated barking, sniffing, licking or blocking of ingress or egress creating a fire hazard.
It is also important to note that while an educational institution might want to create a separate housing area or designate a specific dorm for students with disabilities and service animals, this practice would likely provoke discrimination lawsuits and additional legal concerns from the Office of Civil Rights (OCR).
Emotional support animals under the Fair Housing Act
For colleges and universities that have campus housing, the Fair Housing Act (FHA)9 requires reasonable accommodations for students with disabilities requiring emotional support animals, sometimes referred to as assistance animals. Under the FHA, a student needing an emotional support/assistance animal is an accommodation to a "no pets" policy under a college's typical housing policies.10
An emotional support animal, similar to a service animal, is not intended to be a pet. An emotional support animal provides emotional support that alleviates any identified symptoms or effects of a person's disability. For example, a dog or cat whose presence is necessary to alleviate post-traumatic stress disorder or provide comfort during anxiety attacks. Regulations do not limit an emotional support animal to any specific animal. Dogs, cats, ferrets, pigs, rabbits and even birds have qualified.
If a disability is not readily apparent, which is often the case with PTSD or anxiety, college staff may ask for documentation of the disability and the disability-related need for the assistance animal in college housing. If the disability is not known, a college may request the individual to provide documentation of his or her disability from a reliable third party, such as a physician, social worker, psychiatrist or other mental health worker. A college cannot require medical records beyond the reliable third party's documentation. This is typically a highly individualized assessment.
The request for an assistance animal can be denied if it presents an undue financial or administrative burden, or fundamentally alters the nature of the housing provider's services.
The request can also be denied if the assistance animal poses a direct threat to the health and safety of others that cannot be reduced by another reasonable accommodation, or if the assistance animal would cause substantial damage to property of others that cannot be reduced by other reasonable accommodations.
Impermissible restrictions on emotional support animals include limiting the breed and size, or having weight restrictions. Increased fees or deposits are not permitted.
However, permissible restrictions include obtaining advance consent and notice of the presence of the emotional support animal in campus housing. As with a service animal under the ADA, vaccination and municipal licensing can be required, as well as cleanup of animal waste and fur. Because the emotional support animal is permitted under the FHA as a reasonable accommodation in college housing, restrictions on the presence of the emotional support animal outside of campus housing is permissible. Also, requiring suitable restraints when the animal is not with the owner is permitted.
The pregnant student and Title IX accommodations
Another reasonable accommodation required by the law, but often overlooked by colleges and universities, includes accommodations for pregnant students. Title IX of the Education Amendments of 1972 (Title IX) prohibits discrimination on the basis of sex, which includes pregnancy in educational programs and activities (this includes parental status, too).11
All public and private colleges and universities receiving federal funds must comply with Title IX. Title IX prohibits discrimination based on pregnancy or pregnancy-related conditions, including pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery from pregnancy or childbirth.12
A college or university's obligations under Title IX to the pregnant student include allowing pregnant students to continue to participate in classes and extracurricular activities. Title IX allows, but does not require, a pregnant student to participate in special classes for students who are pregnant, but only if those special programs provide the same opportunities as a school's regular programs. There is also no requirement that a doctor provide a note or permission to participate in a class or program, unless it is required for all students with temporary medical conditions. A college or university must also excuse absences due to childbirth or pregnancy. A doctor stating the medical reasons for excused absences can be required by the college.
Reasonable accommodations for a pregnant student include allowing the student to return to the same academic or extracurricular status as before the temporary medical leave began.
A college or university must also give the pregnant student the opportunity to make up missed work while out due to the pregnancy or childbirth, and the college or university must give the pregnant student the same services and opportunities to students with other temporary medical conditions. Finally, the college or university must protect the pregnant student from any form of harassment, including comments, jokes, rumors, gestures, etc., if such acts interfere with the student's ability to participate or benefit from the school's educational offerings.
Colleges or universities must have a policy against pregnancy and sex discrimination that provides a grievance procedure through a Title IX officer or the equivalent. The school's policy must not allow any form of retaliation in the event a pregnant student asserts her rights.
If a reasonable accommodation is provided to a pregnant student, the college or university must inform faculty or staff of that request and the college's granting of the accommodation. An institution should not allow any "professor-specific" rules or accommodations with respect to a pregnant student. It should be incumbent on the student to notify the college or university of the status and request for accommodation, not the professor, if a pregnant student seeks an accommodation after voluntarily disclosing her pregnancy status.
Common forms of reasonable accommodations for a pregnant student include making up missed work, flexibility in scheduling classes and labs, alternative paths to degree completion through individualized programs, including lab work, group projects or clinical rotations. More common and less substantive accommodations include bathroom breaks, excused absences, no lifting over 10 pounds, not requiring standing for prolonged periods of time, providing a separate table and chair, providing disability parking and access to elevators, and rescheduling tests or quizzes due to doctor's appointments or pregnancy-related sickness.
The goal under Title IX is to ensure that the pregnant student does not drop out, but stays enrolled in school. Staying enrolled through reasonable accommodations is preferred over receiving poor grades because that student cannot participate in school to the same degree due to her pregnancy.13
Technological accommodations for disabled students to achieve academic success
Colleges and universities must be aware of legal requirements for accessibility to computer-assistive technology for students with disabilities, as well as reasonable accommodation requests from disabled students for assistive technology.
Title II of the ADA governs state-funded schools, and Title III of the ADA governs private colleges and vocational schools. If a school receives federal funding, regardless of public or private status, §504 of the Rehabilitation Act requires schools to make programs accessible to students with disabilities. Between the ADA and the Rehabilitation Act, most colleges and universities will be required to provide reasonable accommodations and accessibility to computer-assistive technology for students with disabilities.14
In postsecondary education, a student with a disability must be provided reasonable accommodations upon request, including the removal of architectural, transportation or communication barriers, or the provision of accommodations through the use of auxiliary aids or services.
These modifications, including the provision of technological aids, must be provided when they are necessary for a qualified disabled student to have an equal opportunity to participate in, and reap the benefits of, an educational program or activity.15
These decisions are typically made on a case-by-case basis, and will be required by the college or university without additional fees charged to the student unless it is an undue burden administratively or financially to the institution, or if the accommodation is somehow a threat to the student or others. A college or university may provide different or separate aid, benefit or service to a student with disabilities versus those offered to students without disabilities, but only if that aid, benefit or service is equally as effective.16
Reasonable accommodations, in the traditional college and university context, could include note-taking assistance, interpreters or special classroom seating. Colleges and universities, however, can offer other accommodations such as new computer technologies to assist the student in achieving academic success.17 Examples of unreasonable accommodations include personal tutors and "substantial modifications" to programs and curriculum, such as part-time attendance and at-home test taking.18
To the extent a college or university provides technology to the general student population, including access to interactive websites, e-readers or other computer-aided devices, the technology must be accessible to students with disabilities. Also, when a student with a disability voluntarily requests the use of different technology to assist him or her in achieving academic success, the college or university must assess that request and determine if the request is reasonably related to the student's disability and determine if such technology will overcome the functional limitations of the disabled student.
For example, many colleges and universities have faced threats of lawsuits by students and the OCR for using e-readers that were not functional for blind students because the devices lacked accessible text-to-speech (TTS) functions. The menus and controls were displayed visually only, with no audio option, so blind students could not operate the settings, select books or even turn on the TTS feature. This type of emerging technology was "cutting-edge" and provided non-blind college students with the ability to traverse campus free of books and access multiple books with one device. But it was not functional for blind students.
Colleges and universities will often overlook these legal requirements, resulting in potential liability to the student, or class of students, as well as creating the possibility of investigations by the Department of Education and the OCR.
Reasonable accommodations requested by a student under the ADA, §504 of the Rehabilitation Act or the Fair Housing Act require a depth of knowledge and careful analysis of the legal principles governed by a myriad of statutes, regulations and public policies. To the extent a college or university needs assistance in drafting policies or procedures on any of these accommodations or ascertaining reasonable accommodation requests, legal counsel with experience in higher education laws and regulations should be consulted.
42 U.S.C. §12102; 29 C.F.R. §1630.2(g); 45 C.F.R. §84.3(j).
42 U.S.C. §12131 et seq.; 28 C.F.R. Parts 35 and 36.
29 U.S.C. §794.
28 C.F.R. §35.104; 28 C.F.R. §35.136.
28 C.F.R. §35.136(i).
28 C.F.R. §35.136(f).
28 C.F.R. §35.136(d).
28 C.F.R. §35.136(b).
42 U.S.C. §3601 et seq.
See U.S. Department of Housing and Urban Development (HUD), Office of Fair Housing and Equal Opportunity, FHEO-2013-01, "Service Animals and Assistance for People with Disabilities in Housing and HUD-Funded Programs (April 25, 2013).
34 C.F.R. §106.40(b).
See Department of Education, Office of Civil Rights Pamphlet, "Support the Academic Success of Pregnant and Parenting Students" (June 2013).
28 C.F.R. §36.202(a) and (c); 28 C.F.R. §35.130(a).
28 C.F.R. §35.104.
28 C.F.R. §35.130(b)(1)(iv); 34 C.F.R. §104.4(b)(1)(iv).
28 C.F.R. §35.130(b)(1)(iii); 34 C.F.R. §104.4(b)(1)(iii).
See McGregor v. Louisiana State University Bd. of Supervisors, 3 F.3d 850 (5th Cir. 1993).
DARREN K. SHARP is a co-leader of Armstrong Teasdale's higher education industry team and advises colleges and universities about Title IX, Title VII, ADA/FHA requests for reasonable accommodations as well as FERPA and Clery Act issues. He also routinely counsels colleges and universities concerning contracts with vendors and other third parties. Sharp has successfully handled bench and jury trials in state and federal courts, appeals at the state and federal levels, and arbitrations involving various business and employment disputes.
Contact Information: Darren K. Sharp // Partner and Co-leader of the Higher Education Industry Team Armstrong Teasdale // 816-472-3174 // dsharp@armstrongteasdale.com // http://www.armstrongteasdale.com/darren-sharp/ // https://www.linkedin.com/in/darrenksharp/
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