A Clarification of Responsibility
Section 504 of the Rehabilitation Act of 1973 requires that no (otherwise) qualified person with a disability shall be denied a benefit or opportunity or excluded from participation solely on the basis of that disability. An individual with a disability is qualified if, with or without reasonable accommodation, they meet the same eligibility requirements and standards of behavior and performance demanded of anyone else. When exploring compliance under the law, it is not uncommon for a discussion of accommodation to focus on the issue of documentation of disability — “if he/she has a disability, then we will provide accommodation.” In fact, the documentation of disability and of the need for accommodation is only the first step in the process of receiving accommodation. The question of whether an accommodation is necessary for an institution of higher education (i.e., should be provided) may not hinge on whether or not the person has a disability, but rather on whether or not the accommodation needed is reasonable.
In some instances, an individual with a disability may need no accommodation to fully meet the eligibility criteria and standards required for inclusion. In some instances, the individual with a disability may meet the criteria and standards provided that a reasonable accommodation is provided or a modification is made. In some instances, an individual with a disability may be able to meet the eligibility criteria or standards only if an accommodation is made that goes beyond what is “reasonable.” In these instances, the person with a disability is not otherwise qualified and it is not discriminatory to exclude them from the benefit or opportunity.
What is a reasonable Accommodation?
In the context of higher education, it is easier to define what is not reasonable and assume that if the accommodation needed does not clearly fall under those guidelines, it is probably reasonable! There are three kinds of accommodations that are not considered reasonable: (1) It is not a reasonable accommodation if making the accommodation or allowing participation poses a direct threat to the health or safety of others; (2) It is not a reasonable accommodation if making the accommodation means making a substantial change in an essential element of the curriculum (educational viewpoint) or a substantial alteration in the manner in which you provide your services; and (3) It is not a reasonable accommodation if it poses an undue financial or administrative burden.
Direct Threat to the Health or Safety of Others
An accommodation is not reasonable if it poses a direct threat to the health or safety of others. In order to establish a direct threat, the institution must be able to document a substantial risk of significant harm. It should be noted that the mere existence of a disability does not provide evidence of direct threat. Nor does the possibility of a difficulty arising constitute a substantial risk of significant harm.
It is important to note that under the ADA the direct threat must be to someone else. The individual with a disability has a right to choose to assume the risk to self in the same way that anyone else who participates chooses to assume that risk. A blind individual could not be denied participation in a hiking class that covers rough terrain because of a fear that he/she might trip and fall, but it might be appropriate to deny participation to this individual in a scuba diving class in which participants are paired up and responsible for monitoring each other’s safety through the visual inspection of valves and gauges.
Substantial Change in an Essential Element of Curriculum
In the academic context, an accommodation is not reasonable if it means making a substantial change in an essential element of a course or a given student’s curriculum. It is the institution’s responsibility to demonstrate both that the change requested is substantial and that the element targeted for change is essential to the conduct of the course or curriculum. Whether or not the change requested is substantial/essential may be a judgment call on behalf of the administrators and service providers charged with making those decisions but it is not unusual for the decision to be a fairly logical one.
Substantial Alteration in the Manner in Which Services are Provided
From an administrative point of view, it is not a reasonable accommodation if it means making a substantial alteration in the manner in which you offer you goods and services (in this case, educational opportunities and everything that go with them). Sometimes this discussion revolves around method of delivery, and sometimes on the opportunity being delivered.
- An institution that does not have a distance learning program, allowing students to access courses or degrees from alternative sites and/or through various electronic media is not required to create such an alternative for an academically qualified student with a disability who is unable to reach campus and participate in “hands on”, in class learning experiences.
- On the other hand, it is not unreasonable to expect institutions of higher education to provide textbooks and handouts in alternate media for students with disabilities who cannot use standard print. It is not a substantial alteration in the delivery of opportunity. The opportunity is not the chance to read a book, the opportunity is have access to materials to be used in learning and studying and the institution must see that this opportunity is provided equally to all students regardless of disability.
(4) Undue Financial or Administrative Burden
An accommodation is not reasonable if it creates an undue financial or administrative burden for the institution. HOWEVER...
- Title II of the ADA (which would encompass all public postsecondary institutions) indicates that an accommodation is not reasonable if it is an undue financial burden but indicates that when examining the cost of provision for auxiliary aids and services the government will be looking at the total resources available in the situation. In other words, it will not be the budget of the Biology Department, or the School of Science, or State University that is evaluated, but the budget of the State of _______ against which the yardstick of “undue financial burden” will be measured.
- In 20 years of case law and findings under Section 504 (which includes public and private institutions), the federal government has never allowed an institution of higher education to refuse to provide auxiliary aids or services solely on the basis of cost. Never.
On the other hand, there may be instances in which a request for accommodation constitutes an undue administrative burden:
- A request from an individual with multichemical sensitivity that no construction work be done on campus during school terms could legitimately be viewed as “not reasonable”. The institution must be allowed to maintain and enhance its facilities in order to best serve the full campus community.
- A request from a student with a disability to have the institution reschedule the offering of a needed class to dovetail with the student’s transportation arrangements (in other words, offering the class during daytime hours instead of in the evening) is not reasonable (but a request for priority scheduling for the student with a disability to assure placement in the one offering of that class that meets during the day is reasonable).
When a Request is Deemed Unreasonable...
It is important to remember that the institution is only required to make reasonable accommodations to assure equal access to opportunity for persons with disabilities. If the request for accommodation is judged to be unreasonable (as detailed above), it may be refused. However, a request for an accommodation that is not reasonable does not effect the obligation to provide needed accommodations that are reasonable. Saying “no” to a request that is not reasonable should never be viewed as the end of a discussion of accommodation options. If the individual has a documented disability and needs accommodation to assure access, then the institution is obligated to work with that student to determine whether there is some reasonable accommodation that can be devised to provide the access limited by the disability. The institution must engage in an interactive process.