Higher Education's Obligations Under Section 504 And The American with Disabilities Act
Office for Civil Rights
Revised October 1996
Section 504 of the Rehabilitation Act of 1973
In 1973, Congress passed Section 504 of the Rehabilitation Act of 1973 (Section 504), a law that prohibits discrimination on the basis of physical or mental disability (29 U.S.C. Section 794). It states:
The Office for Civil Rights in the U.S. Department of Education (Department) enforces regulations implementing Section 504 with respect to programs and activities that receive funding from the Department (34 C.F.R. Part 104 ). The Section 504 regulation applies to all recipients of this funding, including colleges, universities, and postsecondary vocational education and adult education programs. Failure by these recipients to provide auxiliary aids to students with disabilities that results in a denial of a program benefit is discriminatory and is prohibited by Section 504.
Title II of the Americans with Disabilities Act of 1990, (ADA) 42 U.S.C. . 12131 et seq., prohibits state and local governments from discriminating on the basis of disability. The Department enforces Title II in public colleges, universities, and graduate and professional schools. The requirements regarding the provision of auxiliary aids and services in higher education institutions described in the Section 504 regulation are generally incorporated in the general non-discrimination provisions of the Title II regulation (see 28 C.F.R. Part 35).
Postsecondary School Provision of Auxiliary Aids
Subpart E of the Section 504 regulation contains the following requirement relating to a postsecondary recipient's obligation to provide auxiliary aids to qualified students who have disabilities:
34 C.F.R. 104.44 (d)(1). Section 35.160 (b)(1) of the Title II regulation states:
It is, therefore, the institution's responsibility to provide these auxiliary aids and services in a timely manner to ensure effective participation by students with disabilities. If students are being evaluated to determine their eligibility under Section 504 or the ADA, the recipient must provide auxiliary aids in the interim.
Postsecondary Student Responsibilities
A postsecondary student with a disability who is in need of auxiliary aids is obligated to provide notification of the nature of the disabling condition to the institution and to assist the institution in identifying appropriate and effective auxiliary aids. In elementary and secondary schools, teachers and school specialists may have arranged support services for students with disabilities. However, in postsecondary institutions, the students themselves must identify the need for an auxiliary aid and give adequate notice of the need. The student's notification should be provided to the appropriate representative of the institution who, depending upon the nature and scope of the request, could be one or more of the following: the institution's Section 504 or ADA coordinator, the appropriate dean, a faculty advisor, or professor. Unlike elementary or secondary recipients, postsecondary recipients, in response to a request for auxiliary aids, may make reasonable requests that the student provide supporting diagnostic test results and professional prescriptions for auxiliary aids. An institution also, on its own, may obtain a professional determination of whether requested auxiliary aids are necessary and, if so, what kind.
Examples of Auxiliary Aids
Some of the various types of auxiliary aids and services may include:
- taped texts - voice synthesizers - note takers - assistance in filling out - interpreters forms - readers - specialized gym - viedotext displays equipment - television enlargers - calculators or keyboards - talking calculators with large buttons - electronic readers - reaching device for - Braille calculators, library use printers, or typewriters - raised-line drawing kits - telephone handset - assistive listening devices amplifiers - assistive listening systems - closed caption decoders - telecommunications devices - open and closed captioning for deaf persons
Technological advances in electronics have vastly improved participation by students with disabilities in educational activities. Institutions are not required to provide the most sophisticated auxiliary aids available; however, the aids provided must effectively meet the needs of a student with a disability. An institution has flexibility in choosing the specific aid or service it provides to the student, as long as the aid or service selected is effective. These aids should be selected after consultation with the student who will use them.
Effectiveness of Auxiliary Aids
No aid or service will be useful unless it is successful in equalizing the opportunity for a particular student with a disability to participate in the educational program or activity. Not all students with a similar disability benefit equally from an identical auxiliary aid or service. The regulations refers to this complex issue of effectiveness in several sections. The specific reference to the effectiveness of auxiliary aids in the Section 504 regulation states:
34 C.F.R. 104.44 (d)(2). There are other references to effectiveness in the general provisions of the Section 504 regulation which state, in part, that a recipient may not:
34 C.F.R. 104.4 (b)(iii) and (iv). For comparable provisions in the Title II regulation, see 28 C.F.R. .. 35.130 ((b)(1)(iii) and (iv).
The Section 504 regulation also states:
34 C.F.R. 104.4 (b)(2). The institution must analyze the appropriateness of an aid or service in its specific context. For example, the type of assistance needed in a classroom by a student who is hearing-impaired may vary, depending upon whether the format is a large lecture hall or a seminar. With the one-way communication of a lecture, providing the service of a note taker may be adequate; but in the two-way communication of a seminar, an interpreter may be needed. Public institution also should be aware that under Title II of the ADA, in determining what type of auxiliary aid and service is necessary, the institution must give primary consideration to the requests of individuals with disabilities.
Cost of Auxiliary Aids
Covered institutions are responsible for the provision of effective auxiliary aids to students who are disabled. If an aid is necessary for classroom or other appropriate (non-personal) use, the institution must make it available, unless provision of the aid causes undue burden. A student with a disability may not be required to pay part or all of the costs of that aid or service. An institution may not place a limit on its expenditure for auxiliary aids or services or refuse to provide auxiliary aids because it believes that other providers of these services exist, or condition its obligation to provide auxiliary aids on the availability of funds. In many cases, an institution may meet its obligation to provide auxiliary aids by assisting the student in obtaining the aid or obtaining reimbursement for the cost of an aid from an outside agency or organization, such as a state rehabilitation agency or a private charitable organization. However, the institution remains responsible for providing the aid.
Personal Aids and Services
An issue which is often misunderstood by institutions and students is the provision of personal aids and services to postsecondary students. Personal aids and services, including help in bathing, dressing, or other personal care, are not required to be provided by postsecondary institutions. The Section 504 regulation states:
34 C.F.R. 104.44 (d((2). Title II of the ADA similarly states that personal services are not required.
In order to ensure that students with disabilities are given a free appropriate public education, local education agencies are required to provide many services and aids of a personal nature to students with disabilities when they are enrolled in elementary and secondary schools. However, once students with disabilities graduate from a high school program or its equivalent, educational institutions are no longer required to provide aids, devices, or services of a personal nature.
A covered postsecondary institution may not deny a service to a student with a disability if that service is offered to nondisabled students. Students with disabilities must be given equal access to regular medical treatment and health services offered by the institution. For example, if a college's health care unit offers a cholesterol test, a student with a disability who requests this service must have it provided.
The provision of personal services relating to certain individual academic activities is not required of postsecondary institutions. Personal attendants and individually prescribed devices are the responsibility of the student who has a disability and not of the institution. For example, readers may be provided for classroom use but institutions are not required to provide readers for personal use or for help during individual study time.
Questions Commonly Asked by Colleges and Universities and Students
Q: What are a college's obligations to provide auxiliary aids for library study? A: Libraries and some of their significant and basic materials must be made accessible by the recipient to students with disabilities. Students with disabilities must have the appropriate auxiliary aids needed to locate and obtain library resources. A postsecondary school must ensure that its library's basic index of holdings (whether formatted on-line or on index cards) is accessible. For example a screen and keyboard (or card file) must be placed within reach of a student using a wheelchair. If a Braille index of holdings is not available for blind students, readers must be provided for necessary assistance. Articles and materials which are library holdings and are required for course work must be accessible to all students enrolled in that course. This means that if the material is required course work, then the text must be read for a blind student, or provided in Braille or on tape. A student's actual study time and use of these articles are considered personal study time and the institution has no further obligation to provide additional auxiliary aids. Q: What if an instructor objects to the use of an auxiliary or personal aid? A: Sometimes postsecondary instructors may not be familiar with Section 504 or ADA requirements regarding the use of an auxiliary or personal aid in their classrooms. Most often, questions arise when a student uses a tape recorder. College teachers may believe recording lectures is an infringement upon their own or other students' academic freedom, or constitutes copyright violation. The instructor may not forbid a student's use of an aid if that prohibition limits the student's participation in the school program. The Section 504 regulation states: A recipient may not impose upon students with dis- abilities other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings that have the effect of limiting the participation of disabled students in the recipient's education program or activity.
34 C.F.R. 104.44 (b). In order to both allow a student with a disability to use an effective aid and protect the instructor, the institution may require the student to sign an agreement so as not to infringe on a potential copyright or to limit freedom of speech.
Q: What if students with disabilities require auxiliary aids during an examination? A: A student may need an auxiliary aid or service in order to successfully complete a course exam. This may mean that a student be allowed to give oral rather than written answers. It also may be possible for a student to present a tape containing the oral examination response. A test should ultimately measure a student's achievements and not the extent of the disability. Q: Can postsecondary institutions treat a foreign student with disabilities who needs auxiliary aids differently than American students? A: No, an institution may not treat a foreign student who needs auxiliary aids differently than an American student. A postsecondary institution must provide to a foreign student with a disability the same type of auxiliary aids and services it would provide to an American student with a disability. Section 504 and the ADA require that the provision of services be based on a student's disability and not on other criteria, such as nationality. Q: Are institutions responsible for providing auxiliary services to disabled students in filling out financial aid and student employment applications, or other forms of necessary paperwork? A: Yes, an institution must provide services to disabled students who may need assistance in filling out aid applications or other forms. If the student requesting assistance is still in the process of being evaluated to determine eligibility for an auxiliary aid or service, help with this paperwork by the institution is mandated in the interim. Q: Does a postsecondary institution have to provide auxiliary aids and services for a non-degree student? A: Yes, students with disabilities who are auditing classes or who otherwise are not working for a degree must be provided auxiliary aids and services to the same extent as students who are in a degree-granting Program.
For More Information
For more information on Section 504 and the ADA and their application to auxiliary aids and services for disabled students in postsecondary schools, please contact the Civil Rights Office that serves your area.
To obtain additional assistance, see OCR's list of its 12 offices, which contains the address and telephone number for the OCR office that services your area.
Last update August 27, 1997