Section 504 at Fifty: Disability Policy and Practice in Higher Education — Notes

Perspective

  • Goal: Encourage a proactive, holistic approach to disability issues in higher education, moving beyond mere legal compliance to embrace the broader benefits of inclusion. This involves fostering leadership awareness, promoting thoughtful policy development, and aligning institutional practices with both the spirit and letter of legal mandates.

  • Audience: College and university attorneys, leadership (including presidents, provosts, deans), and policy makers are the primary audience. The implications and affected roles extend to students (prospective, current, and former), staff, faculty, visitors, applicants for admission or employment, and participants in health/clinical programs on campus.

  • Approach: Strive for a comprehensive balance between strict legal requirements and principles of fairness, acknowledge realistic resource constraints faced by institutions, and align disability policies with the broader institutional mission. The emphasis is on identifying and implementing actions institutions can and should take proactively, often going beyond minimal legal mandates.

  • Author background: Laura Rothstein, a distinguished law professor with several decades of extensive experience and expertise in higher education and disability law, is the author. Her work consistently highlights the practical governance, policy, and compliance implications for colleges and universities.

  • Context: The current landscape reflects fifty years since disability rights became a central concern in higher education. There is an ongoing evolution of disability law, particularly Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA), which necessitates continuous and proactive governance by higher education institutions.

Overview

  • Section 504 of the Rehabilitation Act (1973): This landmark civil rights law unequivocally prohibits discrimination on the basis of disability in any program or activity that receives federal financial assistance, laying the foundational framework for disability nondiscrimination.

  • ADA (1990) and ADA Amendments Act (2008): The Americans with Disabilities Act significantly expanded civil rights protections for individuals with disabilities. Title I addresses employment, Title II covers state and local government services (including public universities), and Title III encompasses public accommodations (including private universities). The interplay between Section 504 and the ADA is central and often complex in higher education settings, with the ADA Amendments Act of 2008 (ADAAA) specifically broadening the definition of disability to ensure wider coverage.

  • Key principle: To be protected under these laws, individuals must have a disability, which is defined as a physical or mental impairment that substantially limits one or more major life activities (e.g., walking, seeing, hearing, learning, caring for oneself). Protection also extends to those with a record of such an impairment or those who are regarded as having such an impairment. Crucially, individuals must also be