Students with disabilities who attend institutions of higher education have been protected against discrimination on the basis of their disability since the passage of the Rehabilitation Act of 1973.1 Since then, other laws such as the Americans with Disabilities Act of 1990,2 and a set of amendments that strengthened its protections in 2008,3 have radically changed the landscape of inclusion and access at colleges and universities across the country. Because of the complexities and obligations of these laws, disability accommodation has become a full-fledged profession in higher education, with most institutions having designated coordinators for disability services or similar professional positions on their campus as a central resource for students who request accommodations or have difficulty with access barriers.4

Despite the ramping up of services and resources by institutions, disability-related discrimination complaints, including complaints about unsatisfactory or inadequate accommodation, remain the second largest category of complaints lodged with the U.S. Department of Education Office of Civil Rights (OCR) – totaling 5,936 disability-related complaints in FY 2016 alone.5 Additionally, both major disability discrimination laws create a private right of action.6

Since the potential liability can be significant and the ordeal of an OCR investigation or compliance review can be intense, college and university administrators are well-advised to audit their institution’s training, policies and procedures on accessibility and accommodation. More importantly, these statutes are merely the legal floor for inclusion and access. Making our educational institutions more welcoming is a noble public service with plenty of room to go above and beyond in the interest of equal access and basic fairness.

INTRODUCTION
Section 504 of the Rehabilitation Act of 1973 states, “No otherwise qualified individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Since federal financial aid, obtained by students through completion of the Free Application for Federal Student Aid (FAFSA) is routed to students through nearly every college and university in the country, this law binds almost all accredited colleges from coast to coast.7, 8 The later passage of the Americans with Disabilities Act of 1990 (ADA) added extra clarity and rigor to the legal floor for inclusion of people with disabilities, and both laws have since evolved in important ways. Title II of the ADA applies to all state and local government entities, including public institutions of higher education, and Title III of the ADA applies to places of public accommodation, which includes private institutions of higher education. There is a specific exemption from the ADA for postsecondary institutions that are controlled by religious organizations, but no such exemption for the applicability of Section 504.

In 1998, a new Section 508 was added to the Rehabilitation Act9 requiring recipients of federal funds to make their electronic information and technology accessible to people with disabilities, and the ADA was amended in 2013 to protect persons with a broader array of disability impairments than the original interpretation of the statute.

These and similar laws are crucial because of the sizable postsecondary education gap between disabled and nondisabled persons. According to the Bureau of Labor Statistics, 16.4 percent of people with a disability have completed a bachelor’s degree, compared with 34.6 percent of people without disabilities.10

Despite being wholly different statutes, Section 504 and the ADA have largely overlapping language and applicability to postsecondary institutions. A cursory reading of the statutes and their implementing regulations will result in finding identically phrased definitions and expectations in many sections, and this is largely because the earlier law was used as a template in the drafting of the latter in order to avoid conflict. The ADA, importantly, tackles far more challenges than Section 504 by applying its protections beyond the federal government and its funding recipients, to nearly all areas of American public life including public and private places that are open to the general public. Because of their largely concurrent nature, and simultaneous applicability to many entities, courts usually interpret provisions in Section 504 consistently with provisions in the ADA.

WHAT IS A DISABILITY?
In order to be protected against discrimination an applicant or student must be a “qualified individual with a disability.”11 The term “qualified” means a person with a disability who has the capability, with or without the provision of reasonable modifications, of fulfilling the essential requirements of the program. Institutions can still have academic entrance exams or admissions requirements, merely, those admission requirements must not have the effect of disqualifying persons because of their disability. A school should not ask applicants if they have a disability, as such an inquiry is irrelevant to any legally permissible admission criteria. On the other hand, it is perfectly permissible for an institution to elicit students to disclose, after their admission, if they have a disability so that proper accommodations and auxiliary aids can be put in place. No student should be required to disclose anything in regard to a disability.

The term “disability” is defined as “...[A]ny person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”12 Major life activities include a broad range of activities such as caring for oneself, walking, standing, breathing, studying and concentrating, among many other normal human activities. Major life activities also include producing normal cells and having a typically functioning circulatory system, endocrine system, etc. If the function of any of these life activities is “substantially limited” by a physical or mental impairment, then they are considered a person with a disability under the law. The Department of Justice says that the phrase “substantially limits” shall “be construed broadly, in favor of expansive coverage.” The implementing regulation itself states, “‘Substantially limits’ is not meant to be a demanding standard.”13

This definition of disability is so expansive as to surprise some who read the language. Rest assured, this was the explicit intention of Congress. After the Supreme Court ruling in Sutton v. United Air Lines, Inc.,14 which determined that impairments under the definition should only be considered with mitigation, and the ruling in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,15 which determined that the definition of disability needed a “demanding” standard, Congress reacted to loosen the definition so more people, and indeed more disabilities, would be covered. In the pre-2008 interpretation of the definition, it was not at all clear that students with epilepsy, HIV/AIDS, diabetes or even cancer met the requirements for coverage under the law. In the post-2008 interpretation, institutions are fully expected to err on the side of inclusion.

REASONABLE ACCOMMODATION
Institutions must make their services accessible to people with disabilities at no extra cost to those persons. This is best accomplished through inclusive design of buildings, curriculum and customer-service processes – but even the most progressive inclusive design strategies sometimes fall short of equitable inclusion. Reasonable accommodations, required under both Section 504 and the ADA, are implemented for the purpose of making services accessible. These accommodations must be reasonable and effective, and should be arrived at through an interactive process between the institution and the person with a disability, so that the implemented accommodation is custom tailored to the barriers created by the impairment (or by a failure to inclusively design the service in the first place).

Reasonable accommodations can be significant and may include academic adjustments such as course substitution, or lengthening the time period within which a degree must be completed. Where reasonable, the college or university is expected to provide auxiliary aids to students who request accommodation. These aids may include alternative format textbooks or sign language interpreters. Accommodations are also to be made available outside the academic context for any other services the institution provides, such as enrollment advice, mental health counseling and involvement in registered student organizations and activities. A reasonable accommodation request can be as simple as permission to use a laptop computer to take notes, or as complex as moving whole classes into the same building to reduce the distance a certain student must walk between classes. In each case, the modifications to practice, policy or curriculum will fit the particular circumstances so as not to give a student any undue academic advantage, privilege or benefit – but merely to make the services provided equally accessible.

The institution’s duty is to provide reasonable and effective accommodation, but not necessarily the best possible accommodation. If more than one accommodation is similarly effective, the institution can choose from among them even if they opt for one the accommodated person prefers the least. Additionally, certain accommodations may be opted against if they create an “undue burden,” i.e., “a significant difficulty or expense.” As a matter of course, OCR is always highly skeptical of any undue burden rationale unless the expense constitutes a sizable portion of the school’s overall budget. To be an undue burden, it is more helpful to think in terms of impracticability rather than mere difficulty.

Importantly, schools have the ability to designate certain academic requirements that are “essential to the instruction being pursued” and which cannot be modified, including academic requirements relating to licensing requirements that are embedded in the program.16 Schools are not ever expected to be required to lower their academic standards, nor is a reduction of academic rigor expected to form any part or parcel of an accommodation. It is important that the rationale behind which academic requirements are “essential” be rather ironclad, as both OCR and the courts can view such designations as merely pretextual, or post-hoc assertions.17

For example, a student with dyscalculia, a learning disability that inhibits cognitive function in relation to mathematics, might ask for a course substitution for a mandatory general-education algebra class for a less math-reliant
class with similar curricular outcomes such as a logic class. Many factors come into play here. The institution would be on stronger ground in asserting algebra was “essential” to the curriculum if the student were an engineering major, as opposed to a creative writing major. It is also helpful to look at what the institution has held out, prior to the request, as essential. Does the school of business advertise an emphasis on financial and accounting skills, and/or market its graduates to the workforce based on this curricular emphasis? If so, then those classes are far more defensible as “essential” parts of the curriculum.

DOCUMENTATION CRITERIA
The documentation a college or university requests from a person with a disability in relation to an accommodation request must be reasonable and limited to the need to understand the nature of the impairment that necessitates the accommodation request or auxiliary aid. There is no law or regulation that requires documentation to be requested or obtained in order for a person with a disability to show that they are eligible for the protections of Section 504 or the ADA. While institutions may request or even require reliable documentation, they should avoid hard and fast designations of what type of documentation meets the threshold for making an accommodation request.

The Association on Higher Education and Disability developed a set of guidelines in 201218 that are helpful for disability accommodation professionals in determining what types of documentation are appropriate under varying circumstances. Individuals who have a disability that is apparent or obvious should not need any paper documentation at all, as the “documentation” in their case is readily observable. For example, an amputee need not obtain a letter from a doctor proving she has had her limb removed, as understanding the nature of the impairment and the barriers created by the impairment require no such proof. An institutional representative receiving that person’s accommodation request can reasonably conclude that all physical manipulations that could have been accomplished with that limb are now mitigated, and that the requesting individual may indeed be in need of note-taking assistance, extended time for the completion of exams or other potential modifications or aids.

ANIMALS
It is important to distinguish between the two major types of protected animal classifications in accessibility law. “Service animal” is a term of art, and while the phrase is sometimes thrown around with abandon, it has a specific legal meaning in certain contexts. The U.S. Department of Justice, which is responsible for regulating Title II and Title III of the ADA (the sections that apply to government agencies and public accommodations), specifically states that a service animal is only a dog that is individually trained to do work or perform tasks for a person with a disability.19 This category of accessibility animal has the broadest protection, and must generally be permitted to accompany people with disabilities anywhere members of the public are allowed to go. Among many other possible functions, these animals include the traditional seeing-eye dog for the blind, dogs trained to alert individuals to an imminent seizure or dogs trained to intentionally lick, nuzzle or nudge individuals with post traumatic stress disorder to calm a panic attack. Because of their broad protection as service animals, persons with disabilities may bring these animals into hospital rooms, cafeterias, classrooms, dormitories or anywhere they generally need the accompaniment of the individually trained dog. They are expected to be leashed unless the tether would impair the dog from performing its function, and the only limitation on their presence is if the sterility of the environment necessitates the exclusion of the service animal (such as surgical rooms or certain scientific laboratories).

Institutional policy about service animals should instruct employees about the broad protections for service animals. Staff are not allowed to ask about the person’s disability, about how recently the dog received training and are not permitted to require that students receive permission from the university for the presence of the animal. In fact, regulations only permit for two questions to be asked when the service the animal provides is not apparent: 1) is the dog a service animal required because of a disability, and 2) what work or task has the dog been trained to perform. Institutions may not ask for documentation or request that the disabled person make the animal demonstrate its training. The animals’ presence cannot be refused for allergy reasons, and people with service animals cannot be isolated or excluded from activities or services.

Beyond Title II and III of the ADA, animals used in the context of disability assistance, accommodation or emotional support have far less specific definition. For example, the Air Carrier Act and the Fair Housing Act use the phrase “assistance animal” with minimal added guidance. Even a “service animal” in the Title I (employment) context of the ADA, which is regulated by the EEOC instead of the Department of Justice, is a more open-ended or fluid designation. This makes the creation of college and university policies fairly maddening, as each year it seems a new legal case results in a determination that adds more nuance and complexity to this rapidly shifting area of disability law. Nonetheless, having a well-developed and updated policy will assist institutions of higher education greatly in this area.

There are three pathways for assistance animals on college campuses. These animals, to be specific, are animals that may or may not be a dog, and might not be individually trained to perform a task or function for a person with a disability, but whose presence may nonetheless have an accommodating effect for a person with a disability.

The first pathway is through Title I of the ADA, the employment-related section of the law, as many students on college campuses also have on-campus jobs, including students who receive work-study money through their federal financial aid. Because the EEOC has no specific definition of a service animal, the process for requesting the presence of the animal as an employee disability accommodation takes the same form as any other accommodation request. The employer is required to engage the employee in an interactive process to determine the nature of the disability related impairment, to understand how the presence of the animal could mitigate any access barriers and to come to a final accommodation plan. This process may, if the nature of the disability is not apparent, include a proper request for documentation about the disability from the employer. If there are equally effective alternative accommodations, the employer is free to choose from among those options.

Common instances of reasonable accommodation that involve animals usually revolve around anxiety reduction and emotional support. Animals (usually with a soft coat of fur like a cat or dog) can operate as a cathartic and calming distraction for an employee who is prone to panic attacks, intense anxiety-related episodes or depressive episodes. Emotional support animals are more common in office-style workplaces as opposed to manual labor and retail. Employers can deny an accommodation request if approving it would create an undue hardship such as making the workplace unreasonably dangerous, disrupting business or if it fundamentally alters the nature of the business in a negative way. Usually the presence of an animal is not particularly disruptive or distracting.

The second pathway is a student request for having an assistance animal as a traditional disability accommodation. The Rehabilitation Act of 1973 does not have the same narrow definition of “service animal” as Title II and III of the ADA, meaning that it is still possible for a student to request the presence of an animal as an auxiliary aid to mitigate barriers created by their disability. In these cases, documentation can be requested by the institution, and if the disability is confirmed, the institution may grant the presence of the animal as a reasonable accommodation. Importantly, in this context the institution may ask about the animal’s training, about how it interacts with the disabled person and may also explore other effective alternatives as a reasonable accommodation.

The third pathway has only recently become clear, as a result of litigation involving the University of Nebraska at Kearney.20 In 2011, the Department of Justice sued that institution, alleging their denial of accommodating a student who requested an emotional support animal in her campus dormitory was a violation of the Fair Housing Act. Initially it was not clear that the FHA applied to dormitories, as the language of the act defined covered dwellings as, “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.”21 However, the FHA argues that a “family” includes a single individual. Now that the FHA has been determined to apply to college and university housing, this serves as yet another route for students with disabilities to exercise.

DIGITAL ACCESSIBILITY
The profusion of technology in course content delivery has been fundamentally changing the accessibility priorities for higher education compliance professionals. As the number of online and hybrid classes increase, the primary platform for the curriculum is shifting as well – from lectures to narrated videos, from class dialogue to web-based discussion boards. Approximately 5.8 million students are now taking at least one online course as part of their higher education experience, which accounts for just over a quarter of all students enrolled in colleges and universities across the country – a number that increases by about 4 percent each year.22 Additionally, the experience outside the classroom has become more web-based as well, with students using digital search engines to find scholarly research in peer-reviewed journals, online remote tutoring services becoming commonplace and primary interaction with college and university services such as enrollment, bill paying and graduation registration taking place through computer interfaces more often than paper transactions.

In this emerging digital education environment, text magnification and video captioning functions can be just as important as wheelchair ramps and handrails on the analog campus. Where students with mobility impairments may have found the traditional campus difficult to navigate, now students with visual and hearing impairments often find themselves the least equipped to receive their education or services in the web-based environment. Unfortunately, institutions of higher education have sometimes been slow to recognize this development. Such well-resourced institutions as the Massachusetts Institute of Technology, the University of California at Berkeley, Florida State University and Harvard University have found themselves on the receiving end of lawsuits from students who, because of a disability-related impairment, had difficulty navigating their online portals or academic curriculum.

College and university attorneys and administrators should require their information technology departments to become familiar with the implementation of the Web Content Accessibility Guidelines (WCAG 2.0) developed by a nonprofit international organization called the World Wide Web Consortium. While these guidelines did not originate from any federal regulatory agency, they have been adopted by OCR as the minimum standard for online information access for persons with disabilities. OCR is the primary regulatory body for disability access laws as applied to educational institutions. When OCR receives a complaint from a student alleging that an educational institution’s technology is inaccessible or otherwise does not meet the accessibility criteria, they are the agency that will investigate. Complainants also preserve a private right of action under the ADA and Rehabilitation Act that do not require the exhaustion of administrative remedies.

The WCAG 2.0 guidelines are not by any means a low bar. The criteria, among other things, require nontext content to be reduced to text, video captioning, contrast between text and background color, keyboard (as opposed to only mouse) control of the interface and a consistent navigation outline across webpages. Part of the goal of these guidelines is to permit low- or no-vision individuals to navigate webpages or instructional content through the use of a verbal screen reader and without the need for visual-only interactive controls such as a mouse or even the screen itself. As an experiment to see whether your web interface is functional for the blind, try to control navigation by using only the tab and return function on your keyboard. You will immediately see how technology is built primarily for sighted individuals.

OCR requires that any workarounds built into the web interface be “equally effective” as traditional use or communication. In 2013, OCR entered into a resolution agreement with the University of Montana after a complaint was filed about inaccessibility of digital and online information. One section of that resolution agreement explains just how high of a bar is expected: “Equally effective means that the alternative format or medium communicates the same information in as timely a fashion as does the original format or medium.” This means that, generally, navigation of web platforms by the disabled should be just as easy or nearly as easy as by individuals without impairments. Because of the difficulty of achieving this, colleges and universities are best advised to start auditing their web-based platforms for WCAG 2.0 compliance immediately if they have not already started.

CONCLUSION
Students with disabilities are enrolling in postsecondary education institutions at a higher rate than ever before and, in most cases, are protected against discrimination and entitled to accommodation and the provision of auxiliary aids. These accommodations might include permission to have an assistance animal under certain circumstances, as well as a vast range of other customizable arrangements that are tailor fitted to meet the barriers faced by the student as they navigate the school’s services and curriculum. As institutions shift more of the curriculum into software-based delivery mechanisms they should resolve to update their web platforms to be accessible. In the persistently evolving world of disability law, it behooves administrators at all postsecondary institutions to keep up-to-speed on these areas of civil rights equity and legal liability. Risk of a potential OCR investigation or civil litigation are motivating factors, but nothing is as motivating as the potential that a student could withdraw because they were unable to access an education to which they had a right of access.

ABOUT THE AUTHOR
Michael J. Davis is the director of compliance and safety at Southeastern Oklahoma State University in Durant. Since 2016, he has served as Title IX coordinator, equal employment opportunity officer and as a member of the institution’s Executive Team.

1. 29 U.S.C. §701 et seq.
2. 42 U.S.C. ch. 126 §12101 et seq.
3. Fram, David K. (2008). “The ADA Amendments Act: Dramatic changes in coverage,” Hofstra Labor & Employment Law Journal, 26(1), 193-221.
4. Madaus, J. (2011). “The history of disability services in higher education,” New Directions for Higher Education, 2011(154), 5-15.
5. Catherine E. Lahmon, “Securing Equal Educational Opportunity,” U.S. Department of Education (2016), www2.ed.gov/about/reports/annual/ocr/report-to-president-and-secretary-of-education-2016.pdf (last visited Feb. 4, 2018).
6. Barnes v. Gorman, 536 U.S. 181,184-85 (2002).
7. Among the few institutions that don’t participate in Title IV financial-aid programs are Hillsdale College in Michigan; Grove City College in Pennsylvania; Christendom College in Virginia; Pensacola Christian College in Florida; Patrick Henry College in Virginia; and tiny Wyoming Catholic College and Gutenberg College in Oregon, which have 150 and 22 students, respectively. At least one Orthodox Jewish institution, Yeshiva Toras Chaim Talmudic Seminary of Denver, also opts out of Title IV.
8. Ibby Caputo and Jon Marcus, “The Controversial Reason Some Religious Colleges Forgo Federal Funding,” The Atlantic (2016),
www.theatlantic.com/education/archive/2016/07/the-controversial-reason-some-religious-colleges-forgo-federal-funding/490253/ (last visited April 16, 2018).
9. 29 U.S.C. §794 (d).
10. “People with a disability less likely to have completed a bachelor’s degree,” U.S. Department of Labor (2015), www.bls.gov/opub/ted/2015/people-with-a-disability-less-likely-to-have-completed-a-bachelors-degree.htm (last visited April 11, 2018).
11. 29 U.S.C. §794.
12. Id.
13. 29 CFR 1630.2.
14. Sutton v. United Airlines, 527 U.S. 471 (1999).
15. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
16. 34 CFR 104.44.
17. Scott Jaschik, Blind Students and Health Professions Iowa Supreme Court says chiropractic college discriminated against blind student (2014), www.insidehighered.com/news/2014/06/30/iowa-supreme-court-says-chiropractic-college-discriminated-against-blind-student (last visited April 16, 2018).
18. Supporting Documentation Requests: Guidance on Documentation Practices, Association on Higher Education and Disability (2012), wp.stolaf.edu/asc/files/2012/11/AHEAD_Supporting-Accommodation-Requests.pdf (last visited March 11, 2018).
19. Service Animals, ADA Requirements: Service Animals (2011), www.ada.gov/service_animals_2010.htm (last visited April 11, 2018).
20. United States v. Univ. of Neb. at Kearney, 940 F.Supp. 2d (D. Neb. 2013).
21. 42 U.S.C. §3602(b).
22. Online Report Card - Tracking Online Education in the United States, 2015, Online Learning Consortium (2018), onlinelearningconsortium.org/read/online-report-card-tracking-online-education-united-states-2015/ (last visited April 16, 2018).

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 10 (August 2018)