OUT OF THE BOX!

WHAT THE LAW SAYS... AND THE PROFESSIONAL JUDGMENT TO APPLY IT Scott LissnerCarol Funckes

What must we do?

WHAT CAN WE DO?

OVERVIEW

Accessible environments Who’s covered?

Disability Otherwise Qualified

Non-discrimination Program, services and benefits

EFFECTIVE reasonable accommodationso Personal serviceo Student preferenceo Fundamental alterationo Undue hardship

APPLIES TO THE PROVISION OF ALL PROGRAMS, BENEFITS & SERVICES INCLUDING:

Recruitment Admissions Instruction (near, far &

blended) Housing Research Technology Job Placement Internships Library

LAW APPLIES TO PROVISION OF...

Advising & Counseling Camps, 4H …. Athletics & Intramurals Facilities & Grounds Transportation Employment & Work

Study Events (Campus

Visitors) On Line Services Student Organizations

Provide equally effective access to programs, benefits and services for

qualified individuals with disabilities in the most integrated manner possible

Section 504 of the Rehabilitation Act 34 CFR 104 & Title II of the Americans With Disabilities Act 28 CFR 35

INTERACTIVE PROCESS

Do I understand the student’s disability experience?

How does the information match with... my professional knowledge and

experience? my observations and interactions with the

student? Does available external information support

my conclusions? Do I need more information to fill gaps?o Is the accommodation necessary in order for

the student to have access?o Is the accommodation reasonable in the

context of the course or program?

WHO’S COVERED?

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DEFINTITION OF DISABILITY

A physical or mental impairment that substantially limits a major life activity

A record of such an impairment Being regarded as having such an

impairment

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MAJOR LIFE ACTIVITIES

walking standing lifting bending speaking breathing learning

caring for oneself

performing manual tasks

seeing Hearing eating sleeping

Include but not limited to:

reading concentrating thinking communicati

ng Working major bodily

functions

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WHAT IS SUBSTANTIAL?

Disability should be construed broadlyo Not Toyota’s “prevents or severely

restricts” o Not limited to activities “of central

importance to daily life” (activities of daily living) used in Toyota

Exclude ameliorative impact of mitigating measures in determining coverage (not Sutton)

Episodic conditions or those in remission are considered based on their active/acute state (not Garrett)

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LIMITED IN WHAT WAY?

Compared to others in the general population

Commonsense vs. scientific standard

How is a major life activity substantially limited? NOT what can the individual do in spite of the

impairment.

CONDITION MANNER DURATION

OTHERWISE QUALIFIED

Meets academic & technical standards What is essential? Determined on a logical / rational basis

Does not pose a “direct threat”

specific risk must be identified risk must be current, not speculative

or remote risk must be based on objective,

factual evidence

NON-DISCRIMINATION

Title II (ADA): Makes it unlawful for postsecondary institutions to exclude qualified students with disabilities from participation in or benefits of services, programs or activities

What are discriminatory acts? Unequal treatment Not providing accommodations

REASONABLE ACCOMMODATIONS

Modifications to policies, practices, procedures or environments that provides an individual with a disability equal access or opportunity

Should be directly linked to the underlying disability

MUST BE EFFECTIVE “Best ensures”

WHAT CONSTITUTES A REQUEST?

No magic words Plain English is fine Doesn’t need to be in writing Doesn’t need to come from the student Can request ANYTHING

We need to respond

PERSONAL SERVICE

Not obligated to provide personal services, i.e. individually prescribed devices, such as

wheelchairs or hearing aids personal care attendants readers for personal use or study personal transportation individual tutoring (unless provided to

other students)

STUDENT PREFERENCE

Give primary consideration to the requests of individuals with disabilities

May select an equally effective accommodation

FUNDAMENTAL ALTERATION

Academic & technical standards

Program Goals

Comparable experience

UNDUE HARDSHIP

Financial

Administrative

Extensive Substantial Disruptive