Individuals with disabilities deserve the same advantages and opportunities as others. Recognizing this, Congress enacted the Americans with Disabilities Act (ADA), which prohibits discrimination against the disabled and applies across all areas of public life. And since a solid education can put an individual on the path to a bright future, the law applies to public schools and public colleges. These academic institutions cannot discriminate against disabled students. This means a student with a disability has the right to an education, just as a student without a disability does.
Students with disabilities are successfully learning and thriving at academic institutions nationwide. But sometimes, discrimination takes place and prevents a student from getting the education they deserve. There may be inaccessible restrooms, a student may be barred from bringing a service dog into a building, or a school may not allow a child who uses a wheelchair to go on a field trip. Regardless of where you are located, if you or your family member have a disability and have experienced discrimination by an academic institution, you should not give up. You need to be proactive. You need a qualified attorney with not only knowledge of the ADA but also experience fighting for the educational rights of students from kindergarten through college. You need the Lento Law Firm on your side. Their Education Law Team has helped students across the country enforce their right to an education. Call us at 888-535-3686 or contact us online.
What Are the ADA's Protections for Students?
The ADA says that a qualified individual with a disability cannot be excluded from participation in or be denied the services and programs of a public entity and cannot be subjected to discrimination by a public entity. According to the ADA, a “public entity” is a state or local government or any department, agency, or instrumentality of a state or local government. Therefore, a public school district is a public entity, as is a publicly-funded university, community college, or vocational school. So, under the ADA, a school that receives public money from the state or local government cannot discriminate against a qualified individual with a disability.
Under the ADA, a “qualified individual with a disability” is someone who has a disability and who, with or without auxiliary aids or services, reasonable modifications to rules or practices or the removal of architectural, communication, or transportation barriers, meets the essential eligibility requirements to receive services or participate in a public entity's activities or programs. Auxiliary aids or services are things such as Braille materials and telephone handset amplifiers, for example. So, what does all of this mean? It means a student with a disability who is eligible to attend school cannot be denied an education.
What Is a Disability Under the ADA?
The ADA says that “disability” means a physical or mental impairment that limits one or more major life activities in a substantial way. Think of this definition as having three parts. First, there is a physical or mental impairment. Second, there are major life activities. Third, there must be a substantial limitation.
What Is an Impairment Under the ADA?
The law defines a physical impairment as any physiological condition or disorder, cosmetic disfigurement, or anatomical loss that affects one or more systems of the body, such as the neurologic or musculoskeletal systems. Bodily systems that can be affected also include the cardiovascular, circulatory, digestive, endocrine, genitourinary, immune, and respiratory (including speech) systems. The ADA also adds the hemic, lymphatic, and reproductive systems to this list, as well as the skin and special sense organs, which consist of the eyes, ears, nasal passages, and tongue.
A mental impairment under the ADA is any psychological or mental disorder, such as an intellectual or learning disability or a type of brain dysfunction. The law also includes an emotional or mental illness as a mental impairment.
Further, an impairment that is in remission, or one that flares up on occasion, is still a disability under the ADA if it substantially limits a major life activity when it is active.
The ADA also defines a disability as existing when a person has a record, or history, of having had an impairment. This means the law protects someone who previously had an impairment, such as cancer or a mental illness, but has recovered.
Here is a non-exclusive list of physical or mental impairments that are covered under the ADA:
- Attention Deficit Hyperactivity Disorder;
- Cancer;
- Cerebral palsy;
- Diabetes;
- Dyslexia and other learning disabilities;
- Epilepsy;
- Heart disease;
- Hearing impairments;
- Muscular dystrophy;
- Multiple sclerosis;
- Orthopedic impairments;
- Speech impairments; and
- Vision impairments.
Note that the ADA specifically states that a disability does not include the following:
- Compulsive gambling, kleptomania, or pyromania;
- Exhibitionism;
- Gender identity disorders not arising from physical impairments;
- Mind-altering substance use disorders arising from the current illegal use of drugs;
- Pedophilia;
- Transsexualism;
- Transvestism; and
- Voyeurism or other sexual behavior disorders.
What Are “Major Life Activities” Under the ADA?
“Major life activities” include, for example, breathing, caring for oneself, communicating, concentrating, doing manual tasks, eating, hearing, interacting with others, learning, performing movements such as lifting and bending, reading, seeing, sitting, sleeping, speaking, standing, thinking, walking, and working.
Bodily functions are also major life activities that may be limited by an impairment, according to the ADA. Bodily functions include the operations of the brain, the bladder, the bowels, and the digestive system. In addition, the law considers the operation of the cardiovascular, circulatory, endocrine, genitourinary, immune, hemic and lymphatic, and respiratory systems to be major life activities. Musculoskeletal and neurological functions, reproductive functions, and normal cell growth are major life activities that may be limited by an impairment as well, according to the ADA. The functions of the special sense organs are also included as major life activities, as is the skin.
What Does “Substantially Limits” Mean Under the ADA?
The ADA says the phrase “substantially limits” should be construed broadly, as the law aims for the generous inclusion of individuals. There is no hard and fast rule, and each person is to be assessed on an individual basis.
To be considered substantially limiting, an impairment does not have to stop or seriously restrict a person from performing a major life activity. An impairment will be a disability if it substantially limits someone's ability to perform a major life activity as compared to most of the general population, according to the law. The comparison does not require medical, scientific, or statistical evidence.
Because the focus is on whether an impairment substantially limits a major life activity, what someone can do, earn, or achieve is not considered. For example, a student with a learning disability may earn good grades but may be substantially limited in the major life activity of learning because he or she takes more time and effort to read, write, and learn.
Further, an individual who has an impairment may use helpful things such as hearing aids or cochlear implants, low vision devices, medicine, medical equipment, mobility devices, prosthetic limbs, or oxygen therapy equipment. The ADA says these things will not be taken into account to determine whether the impairment substantially limits a major life activity. However, the benefits of ordinary eyeglasses or contact lenses are considered.
Under the ADA, aside from glasses and contacts, a few more factors will be considered when determining whether an impairment substantially limits a major life activity. The difficulty, time, and effort it takes someone to perform a major life activity will be taken into account, as will pain, negative medication side effects, and treatment regimen burdens.
It can be confusing to think of impairments and how they can substantially limit major life activities, so here are some examples:
- Blindness substantially limits vision;
- Cancer substantially limits normal cell growth;
- Cerebral palsy substantially limits brain function;
- Deafness substantially limits hearing;
- Diabetes substantially limits endocrine function;
- Epilepsy substantially limits neurological function;
- HIV substantially limits immune function;
- An intellectual disability substantially limits brain function;
- Missing limbs substantially limit musculoskeletal function and
- Multiple sclerosis substantially limits neurological function.
It is important to understand that under the ADA, the main question is whether a public entity such as a school or college has complied with its legal obligations and whether discrimination has taken place. The question of whether someone's impairment substantially limits a major life activity is not the main focus and does not call for an extensive review.
The ADA Prevents Discrimination Against the Disabled
As stated above, the ADA prohibits a public entity such as a public school system from discriminating against a qualified individual with a disability. A public entity cannot deny such a person the right to participate in its programs or obtain the benefit of its services.
That is the general rule, and here are some details. The ADA's prohibition means that a public entity cannot give a disabled person the chance to participate in a service or obtain a benefit that is not equal to the service or benefit offered to an individual without a disability. Further, a public entity such as an academic institution cannot give a disabled individual a benefit or service that does not give that person the same opportunity to achieve the same result as others or to reach the same achievement level as others.
A public entity is also prohibited from giving a disabled person or a group of disabled persons as a class different or separate aids, benefits, or services than are provided to others. This is the rule unless the different or separate aids, benefits, or services are as effective as those given to others.
A public entity such as a school or school district cannot perpetuate discrimination against a disabled individual by providing any assistance to an agency, group, or person that engages in disability-based discrimination when providing services as part of a public entity's programs.
The ADA also says that a public entity such as a school system cannot, whether directly or through a contractual arrangement, use any criteria or administration methods that result in a disabled person being subjected to disability-based discrimination. A public entity must administer its services, programs, and activities “in the most integrated setting appropriate to the needs” of people with disabilities, according to the law.
The ADA further states that a public entity such as an academic institution cannot apply any type of eligibility criteria for services or programs that screen out a disabled person or any group of disabled individuals as a class. This is the case unless the eligibility criteria in question are necessary for the provision of the service or program at issue. For example, a school cannot require children with disabilities to provide their medical history even though other students are not asked for this information. This would be an ADA violation unless the school could show that the policy was necessary.
In addition, if a public entity administers a licensing or certification program, it cannot do so in a way that causes someone with a disability to experience disability-related discrimination.
A public entity can put into place legitimate safety requirements that are necessary for the safe operation of activities, programs, and services. The entity, however, must make sure that the safety requirements are based on actual risks and not on stereotypes about people with disabilities, the law states.
In addition, when hiring a contractor through the procurement process, a public entity cannot use selection criteria that subject disabled individuals to disability-related discrimination. If a public entity such as a school district is choosing the location of one of its facilities, it cannot make a choice that ends up excluding disabled individuals or otherwise subjecting them to discrimination.
The ADA even takes its protections for the disabled a few steps further. The law says a public entity such as an academic institution cannot exclude or deny equal benefits to an individual based on his or her relationship with a person who is known to have a disability.
A public entity has to make reasonable modifications to its policies, practices, or procedures when necessary to avoid disability-related discrimination, according to the ADA. Here is an example. A school does not allow students to eat in the classroom but may make an exception for a child with diabetes who needs to eat frequently to keep glucose levels steady. This is the case unless the public entity shows that making the modifications would fundamentally alter the nature of the service, program, or activity at issue.
Under the ADA, when a public entity such as an educational institution takes steps to provide nondiscriminatory treatment to persons with disabilities, that entity cannot cover the cost of these measures by placing a surcharge on a disabled person.
A public entity must keep any equipment that is used by people with disabilities in working order and readily available, according to the ADA. With regard to facilities, such as school buildings, any features that are used by the disabled have to be in working order and readily available. For example, access to an elevator that can be used instead of stairs must not be blocked. The only exception to the rule is for temporary interruptions due to maintenance.
In short, a public entity such as an academic institution cannot limit a disabled person's enjoyment of any right, privilege, advantage, or opportunity that is enjoyed by others. However, note that the ADA does not require a public entity such as a school to provide certain types of personal devices or services of a personal nature to someone with a disability. This means a school does not have to provide wheelchairs, prescription glasses, or hearing aids or help with dressing, eating, and toileting.
As discussed, the ADA imposes rules that public entities such as schools have to follow. But nothing prevents a public entity from offering disabled individuals any benefits, services, or advantages that exceed those required by the ADA. Lastly, an individual with a disability does not have to accept any accommodation, opportunity, or benefit provided by a public entity such as a school.
Service Dogs for School Students Under the ADA
A public entity such as a school can allow a service dog to accompany a disabled individual to all facilities used by members of the public, according to the ADA. A public entity can make two inquiries to determine whether a dog qualifies as a service animal. A public entity can ask whether the dog is required because of a disability and can ask what task it is trained to do. A public entity cannot ask these questions when it is apparent that the dog is trained to perform tasks for a disabled person. For example, if it is apparent that a dog guides a blind individual, the public entity should not make inquiries. Further, a disabled person does not need documentation to prove a dog has been certified, licensed, or trained to be a service animal.
A public entity is not responsible for a service dog's care or supervision. A disabled person must keep the service dog under control. The dog should have a harness or leash unless the person cannot use one or unless the use would interfere with the dog's ability to perform a task. If this is the case, the individual is required to use signals or commands to keep the dog under control.
The ADA says a public entity can ask a disabled person to remove the dog from the premises if it is not housebroken or is out of control. If the entity asks for the dog's removal, the person must be given the chance to stay and participate in services and programs.
A public entity cannot impose a surcharge on a disabled individual who uses a service dog. However, if the service dog causes damage, the public entity can charge the person for repairs. This is the rule as long as the public entity normally charges people for any damage they cause.
Note that the ADA does not consider an emotional support animal, whether a dog or other species, to be a service animal. An emotional support dog is not a service animal because its presence gives the person comfort, and comfort is not a disability-related task.
Mobility Devices for Students Under the ADA
The ADA says that a public entity such as a school or college must allow an individual with a mobility disability to use a manually-powered mobility device in any areas that are open to pedestrians. Manually-powered mobility devices include, for example, canes, crutches, walkers, and wheelchairs. According to the law, wheelchairs are allowed regardless of whether they are manually driven or power-driven.
The ADA also says a public entity has to make reasonable modifications to its policies so an individual with a mobility disability can use a power-driven mobility device. A power-driven mobility device is any driven by batteries, fuel, or another type of engine, such as a golf cart or Segway®. This is the case unless the device cannot be operated within safety requirements, and the ADA has special rules regarding the use of these items.
What Do I Do if My School Discriminates Against Me on the Basis of Disability?
In spite of the ADA's mandates, discrimination sometimes takes place. A publicly-funded school, college, or vocational school may not follow through on its promise to make an accommodation that will allow a disabled individual to attend. An academic institution may treat disabled students differently and may not give them all the advantages that are available to persons without disabilities. A school may exclude a disabled student from certain activities. Disabled individuals may find themselves at odds with a school for any number of reasons. If you or your family member are experiencing disability-related discrimination by a school or college, regardless of your location or grade level, you need knowledgeable, experienced help. The Lento Law Firm will be at your side, fighting to enforce the ADA. Their Education Law Team has experience helping school students nationwide with ADA issues and other disability-related problems that can arise at an educational institution. The Lento Law Firm Team is not afraid to fight for your rights. Call us at 888-535-3686 or contact us online.
