General Counsel
Overview of Title II of the Americans with Disabilities Act: Students
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Introduction to the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) protects persons with disabilities from discrimination in the areas of employment, access to state and local government programs and services, and public accommodations. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701-796) subjects colleges and universities to essentially the same requirements as the ADA. The University of Wisconsin System has adopted a policy that complies with the requirements of the ADA and Section 504. This policy details the responsibilities of University of Wisconsin System institutions and the rights of students, employees and members of the general public who have disabilities (Regent Policy 14-10). You should consult that policy or contact the Office of General Counsel or Campus Legal Counsel to answer questions that this summary of the ADA does not address.
Title II: General Requirements and Definitions
Title II of the Americans with Disabilities Act prohibits any government body, including the University of Wisconsin System, from denying any qualified individual with a disability access to or participation in any program, service or activity that the institution offers. In addition, each UW institution must provide reasonable accommodations to allow individuals with disabilities to participate in and benefit fully from the institution's programs, services and activities.
Disability means a physical or mental impairment that substantially limits one or more of a person's major life activities, a history of such impairment, or being regarded as having such impairment. As the definition states, a disability may be physical in nature or it may involve a learning or a mental impairment.
Under Title II, a qualified individual with a disability is a person with a disability who is applying for admission to or participation in a program, service or activity of the institution or who is currently participating in a program, service or activity of the institution and who, with or without reasonable accommodations, meets the essential eligibility requirements for participating in those programs, services or activities. Persons are not qualified if they present a direct threat to the health or safety of themselves or others.
A reasonable accommodation means any reasonable modification of the institution's rules, policies or practices; environmental adjustments, such as the removal of architectural or communicative barriers; or auxiliary aids and services. An accommodation is not reasonable if it would result in undue financial or administrative burdens, require a fundamental alteration to the program at issue, violate accreditation requirements, or require the waiver of essential program or licensing requirements. Because the issue of what constitutes a reasonable accommodation is often difficult to resolve, you should first contact your institution's Disabled Students Services Coordinator for assistance. If that person cannot answer your question, you should contact the System's Affirmative Action Officer. You should direct any questions that these persons cannot answer to the Office of General Counsel or to Campus Legal Counsel.
Admissions
Except in very limited circumstances, an institution must not inquire about possible disabilities before deciding whether to admit an individual. If an applicant for admission includes materials about a disability with his or her application, the institution may not consider these materials in deciding whether to admit the applicant. All institutions, however, must inform all admitted students of the procedures for disclosing disabilities and requesting accommodations.
An institution must not use admissions tests to screen out disabled applicants. An institution must administer admissions tests to individuals with disabilities as regularly as it does other admissions tests. An institution must provide reasonable testing accommodations to disabled individuals. The individual with the disability must, however, make his or her special needs known in a timely manner.
Finally, recruitment and eligibility criteria should not screen out applicants who would otherwise be qualified for admission. Eligibility criteria should be reviewed to ensure that they are fundamental and essential to the program. Institutions may be required to waive non-fundamental requirements that bar applicants with disabilities who are otherwise qualified for admission.
Documentation of Disability
Once accepted for admission, a student who wishes to receive accommodations for his or her disability must identify the disability. The institution should then require the student to provide recent, supporting documentation of the disability from an appropriate treating professional that is relevant to the requested accommodation. This documentation should include a diagnosis of the disability, the major life activities that the disability impairs, the disability's severity, any functional or educational limitations caused by the disability and recommended accommodations.
Note: The office that stores and maintains documentation of a student's disability should keep the documentation separate from other educational records and ensure that the documentation is only disclosed to those persons who have a legitimate need to know about a student's disability. Before disclosing disability documentation, a disability services employee may wish to consult the Office of General Counsel or Campus Legal Counsel.
Reasonable Accommodations
The accommodation process should be an interactive process which provides for give-and-take between the institution and the student. However, remember that, while the student's preference should be considered, the institution has the ultimate discretion to choose among effective accommodations. The institution does not have to choose the best accommodation, but rather the accommodation that is sufficient to meet the program-related needs of the student.
Complaint Process
Institutions must have a complaint process for students to appeal an accommodation decision or to file a complaint of disability discrimination or harassment.
Campus Programs and Activities
Academic requirements
In modifying academic requirements to provide reasonable accommodations for students with disabilities, institutions should ensure that the modifications do not fundamentally alter educational programs or compromise educational standards. Academic requirements that are essential to programs of instruction (such as mathematics for an engineering major) are not discriminatory under the ADA. Consult with the Office of General Counsel or Campus Legal Counsel and appropriate faculty to determine which academic requirements are essential to programs of instruction.
Tests
Students with disabilities must request test accommodations as soon as possible, preferably at the beginning of a course or according to the procedures the institution has outlined. The institution should determine appropriate accommodations individually, based on documentation of the nature of the disability.
Physical education programs.
An institution may not exclude a student with disabilities from a physical educational program if he or she can meet the fundamental requirements of the program with or without a reasonable accommodation.
Off-Campus Programs and Activities
If an institution does not wholly operate a program or activity but nonetheless requires student participation, the institution must ensure that the program or activity provides an equal opportunity for the participation of students with disabilities.
Access to Facilities
An institution does not have to make structural changes to existing facilities if other methods of accommodation will make a program or course accessible to a student with a disability. For example, moving the program, service or activity to an accessible building is acceptable. However, if there is no way to provide the program, service or activity at an alternative location, the institution will have to make existing facilities accessible. Furthermore, each new facility must be designed and constructed in such a way that it is readily accessible to and usable by persons with disabilities.