Federal Law

Students should take responsibility for their academic needs and limitations. Acknowledging and recognizing a disability is nothing to be ashamed of. This will allow them to identify areas in which they should consider requesting accommodations that may level the playing field. It will also make it easier to communicate about their accommodations to instructors, other students and anyone from whom they may need assistance.As soon as a student is accepted into NDSU, it is recommended that they register with Disability Services where they will discuss their barriers and possible accommodations. This will be one of the first steps in the student becoming their own advocate. Students will develop independence by taking responsibility for requesting and making appropriate arrangements to ensure success in classes.

There is a big difference between entitled to education and right to equal access to education. Unlike elementary and secondary schools, post-secondary education offers access rather than entitlement to academic programs. There are several laws that address how students are to receive a fair and equal education. These laws are different for students in K-12 than they are for post-secondary institutions.

EDUCATION FOR ALL HANDICAPPED CHILDREN ACT

This act, commonly known as Public Law 94-142, provided that any child with a disability was “entitled to a free and appropriate education” in public school systems. This law, along with its numerous re- authorizations, reflects the nation’s commitment to educating all its children, whether they have disabilities or not.Fundamentally, 94-142 and its successors (including the Individuals with Disabilities Education Act of 1990 and IDEA Improvement Act of 1997) said that public schools, with your parent input and appropriate assessments, would determine what was most appropriate for their child’s education. Then they were required to provide that education.

Now, however, the child has reached adulthood under the law, and the rules of the game have changed. The principles of 94-142 and IDEA, including the required IEP (Individualized Education Program), no longer apply. Note: 504 Plans, under which many students are now served in high schools, are no longer valid either.

AMERICANS WITH DISABILITIES ACT

In 1990, Congress passed the Americans with Disabilities Act. This law, based on section 504 of the Rehabilitation Act of 1973, is a civil rights law. It prohibits discrimination on the basis of disability as long as the person is otherwise qualified. In the case of publicly funded colleges and universities, ADA affirms the right of a student witha disability to a level playing field.That means that a college or a university must ensure access to all students who are otherwise qualified. Access means much more than ramps and elevators and wide parking spaces. It also means access to information and to technology. Therefore, colleges and universities must make reasonable accommodations for a student’s disability, in order that they may be able to demonstrate their ability.However, civil rights laws and the reasonable accommodations they call for are in no way intended, nor are they able to, guarantee success. At most, a student can expect an equal chance to do the same work as their peers.In higher education, the individual with a disability bears the burden of proof. Unlike public schools, there are no requirements for providing evaluation of individuals with disabilities. The person with a disability must themselves provide documentation of a disability. In public schools, whether under IDEA or Section 504, the school is responsible for adequate and regular assessments. This is no longer the case once a student leaves high school and attends a college or university.

A 504 Plan from a high school -- or for that matter, an IEP -- is in no way obligatory upon any institution or entity outside of the school in which it was developed. There are no requirements for any plan under Section 504 or the ADA with respect to higher education, employment or other areas of public life. Therefore, there are no more meetings each year with counselors, teachers, etc. There is nothing to sign.

FREE AND APPROPRIATE EDUCATION

“Free and Appropriate Education” (FAPE), first put forth in law under special education legislation in 1975, no longer applies. Though it is still referenced as a requirement for high school under regulations governing Section 504, there are no such references with respect to higher education in any federal regulations for either Section 504 or the ADA. Rather, higher education carries with it all the necessary costs, and students with disabilities must pay the same as their non-disabled peers. In higher education then, FAPE is not regarded as a part of 504’s nondiscrimination prohibitions. In all areas outside of public schools, nondiscrimination is accomplished by means of barrier removal, including “reasonable accommodations.”The term “otherwise qualified individual with a disability” carries a different connotation and subsequently greater weight and responsibility on the part of the individual than may have been the case in high school and certainly elementary school. It means that students must meet academic standards. In public schools, this refers only to the age of the individual as being appropriate for elementary or high school. In higher education, it ultimately refers to a student’s academic proficiency and ability to demonstrate learning. “Placement” and “least restrictive environment” are no longer considerations. Placement in an environment which is restrictive or protective in any way would be a violation of an individual’s civil rights and counter to the spirit of Section 504 and the ADA.Some services provided to high school students under Section 504 may not be provided in higher education because they in fact reduce the academic standards. Shortening assignments or reduced exam questions, for example, is viewed as compromising academic standards and therefore is not “reasonable” to request in college.In higher education, therefore, students with disabilities must possess higher-level skills in all aspects of learning – skills and strategies appropriate with the academic expectations in higher education and, later, professional careers. These necessitate more sophisticated strategies in many cases. Reasonable accommodations can create a level playing field, but once achieved, students must then demonstrate their skills and knowledge adequately.

Top of page