Before the 1970s, more than half of the children with disabilities in the United States did not receive appropriate educational services that would enable them to have full equality of opportunity. More than one million of these children were excluded from the public school system and did not go through the educational process with their nondisabled peers. However, with the passage of the first federal eligibility program providing funding for special education and related services, more children with disabilities were integrated into regular classroom environments. This federal program, now entitled the Individuals with Disabilities Education Act (IDEA), ensures educational opportunities for children with disabilities in public elementary and secondary schools.
In the early twenty-first century, the numbers of students with disabilities successfully completing elementary and secondary school (among other improvements for this population) is largely due to the implementation of the IDEA, which increased access for many students with disabilities to the regular education classroom with the necessary special education and related services supports these children need to prepare for postsecondary education. The success of children with disabilities in primary education inevitably led to their desire to attend colleges and universities.
Postsecondary Students with Disabilities
Increasing numbers of children with disabilities are, in fact, entering postsecondary educational institutions. In 1999 the American Council on Education found that higher proportions of students with disabilities were enrolling in four-year colleges and universities than ever before. One in eleven first-time, full-time freshmen entering college in 1998 reported having a disability. Also in 1999, the U.S. Department of Education's National Center for Education Statistics (NCES) reported that an estimated 428,280 students with disabilities were enrolled at two-year and four-year postsecondary educational institutions. The numbers of students with disabilities transitioning from high school to higher education is expected to increase even more in the decades to come because of increased implementation of federal laws.
Federal Disability Laws Applicable to Higher Education
The protections and considerable modifications and services available under the IDEA to children with disabilities in primary education do not extend to education beyond the secondary level. The IDEA only applies to children with disabilities determined eligible for special education and related services from birth through their twenty-first birthday, and its protections and services end when the child leaves secondary school - either through aging-out or graduating with a regular high school diploma. The IDEA is not, however, a basic civil rights statute, but rather an educational eligibility program for children with disabilities who are determined eligible for services under the IDEA. The protections and services afforded to children with disabilities do not cross over to higher education. However, two federal civil rights laws specifically apply to colleges and universities; these are the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA).
The Rehabilitation Act
Before the end of the 1970s, there were only a small number of colleges and universities that provided access for students with disabilities. Many of these institutions were segregated colleges and universities that specialized in serving students with a particular type of disability, such as Gallaudet University, which focuses on educating students who are deaf. The benefits of the civil rights movement for African Americans, and the growing assertion by women for equality, directly influenced people with disabilities to advocate for their rights to equality and opportunity to participate in society, including access to higher education. Many of these early advocates for access to higher education were disabled war veterans and others with disabilities who were highly assertive in forcing federal attention to physical and academic access to colleges and universities. The efforts of these individuals with disabilities led to the passage of the Rehabilitation Act.
The Rehabilitation Act applies to any entity that chooses to accept federal financial assistance for any program or service, including higher education institutions. The specific provision of the Rehab Act that applies in higher education, with respect to otherwise qualified students with disabilities, is section 504. Subpart E of section 504 specifically applies to postsecondary education settings.
In basic terms, Subpart E requires any public or private college or university that accepts federal funds for any activity to provide "program accessibility" to campus programs and services. Program accessibility is a concept that allows recipients of federal funds, in this case colleges and universities, to make their programs and activities available to individuals with disabilities without extensive retrofitting of their existing buildings and facilities by offering those programs through alternative methods. In practical terms this means that campus buildings are not required to be made accessible to, and usable by, students or others with disabilities as long as the "program" is made accessible to individuals with disabilities. For example, if the second floor of a campus science building has no elevator and a course is offered on that floor that a student who uses a wheelchair wants to take, then the course must be relocated to a classroom that is accessible for the student. Under section 504, a campus is not required to make each of its existing facilities accessible to students with disabilities, though newly constructed campus buildings and facilities are required to be usable by all individuals with disabilities.
Congress intended the section 504 program-access requirement to enable individuals with disabilities to participate in and benefit from the services, programs, or activities of public entities in all but the most unusual cases. However, section 504 only applies to colleges and universities that accept federal financial assistance of some sort, and does not apply to those institutions that do not accept federal dollars. Moreover, section 504 was not adequately enforced and, therefore, did not increase the number of students with disabilities attending postsecondary education. A more comprehensive civil rights law was needed to implement access for people with disabilities in all facets of society, including higher education. Thus, the foundation for the Americans with Disabilities Act was developed, leading to its passage in Congress by an overwhelming majority and its enactment into law on July 26,1990.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) is the most comprehensive civil rights law protecting people with disabilities in history. In terms of higher education for students, the ADA applies to every public college and university and nearly every private college or university in America, with the exception of those institutions affiliated with religious entities or organizations. Examples of exempt institutions include Notre Dame University in Indiana and Brigham Young University in Utah. All public colleges and universities are covered under Title II of the ADA, and private colleges and universities are covered under Title III of the ADA. How the ADA applies to public institutions is very different than how private institutions are covered. Understanding these specific provisions of the ADA is critical to correctly implementing the act.
Basically, the section 504 and the Title II concepts of program accessibility are the same. However, Title II of the ADA extends the program accessibility concept to all public campuses regardless of the source of funding for any campus programs, meaning that existing buildings do not need to be altered to be accessible to students with disabilities as long as the program is accessible. This may mean simply relocating courses or offering services such as retrieving books from inaccessible areas of the campus for students with disabilities. Conversely, covered private campuses, under Title III, must actively remove architectural barriers in existing buildings and facilities where such removal is "readily achievable," or provide goods and services through alternative methods where those methods are "readily achievable." In other words, a major distinction between public and private campuses is that private campuses must remove existing physical barriers whenever and wherever it is readily achievable to do so. This is a higher standard of access for private than public campuses. However, all public and private campus construction since January 26, 1992, must meet minimum federal standards for accessibility to incrementally add to accessible buildings over time.
Public and private campuses are also required to provide the necessary services and supports for students with disabilities to participate in campus activities, both academic and social. Services such as braille materials; providing sign language interpreters and readers; and allowing students with learning disabilities to take course exams in quiet environments may also be required, with certain technical stipulations, to the extent necessary for students with disabilities to participate in campus activities. However, students with disabilities must notify, and in some cases provide documentation of disability, prior to asserting the need for modifications, and they must not wait until the last minute. Furthermore, the level and extent of services that must be provided depend on whether the campus is public or private.
Bibliography
Americans with Disabilities Act of 1990. U.S. Public Law 101 - 336. U.S. Code. Vol. 42, secs. 12101 - 12213.
Henderson, Cathy. 1999. College Freshmen with Disabilities: Statistical Year 1998. Washington, DC: American Council on Education.
Individuals with Disabilities Education Act Amendments of 1997. U.S. Public Law 105 - 17. U.S. Code 20. Vol. 20, secs. 1400 et seq.
National Center for Educational Statistics. 1998. Fall Enrollment in Postsecondary Institutions 1996. Washington, DC: National Center for Educational Statistics.
Rehabilitation Act of 1973, Section 504. U.S. Public Law 93 - 112. U.S. Code. Vol. 29, secs. 791 - 794.
— FRANCES K. STAGE, MAGDALENA H. DE LA TEJA
