The ADA

Also known as Public Law 101-336, the Americans with Disabilities Act of 1990 (ADA) is a federal civil rights statute which extends protections for people with disabilities delineated in the earlier Rehabilitation Act of 1973. The ADA requires physical accessibility of newly constructed or retrofitted places of "public accommodation" after 1990.

For our purposes, the ADA has three applicable titles:

1. Title I - deals with employment.
2. Title II- deals with state and local governments including public education.
3. Title III - deals with places of public accommodation, including businesses and non-profit agencies that serve the public, and "commercial facilities." Private institutions of higher education are covered under Title III.

Title's IV and V deal with telecommunications and miscellaneous provisions and generally do not apply to education.

Technical Assistance Document at:

From an E&IT perspective, the ADA requires institutions of higher education to furnish appropriate auxiliary aids and services to ensure effective communication with qualified individuals with disabilities, unless doing so would fundamentally alter the program or service or create an undue burden.

Appropriateness must be considered on a case-by-case basis. But in general, auxiliary aids do not have to be furnished that would result in an undue burden or in a fundamental alteration in the nature of the curriculum. While deference should be given to a student's preferred accommodation strategy, your institution is not required to provide the best accommodation; only an effective and reasonable accommodation.

The term "effective communication" does not appear in the ADA, but has been used by the DOJ to settle ADA disputes. Generally, communication is considered effective if it is timely, accurate, and appropriate to the disability and significance of the message being communicated.

A "fundamental alteration" is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered. In higher education, this definition is usually applied when considering the essential elements of the curriculum.

Institutions of higher education are not required to compromise the essential elements of the curriculum as long as those elements have been identified through a "reasoned deliberative process." This means that the essential elements of a degree program or course of study cannot be determined in an "arbitrary or capricious" manner.

The term "undue burden" is not defined in the ADA. However, the DOJ has issued numerous rulings which use the term, and defines "undue burden" as "significant difficulty or expense."

At the time of this writing, no case has ever successfully been defended by an institution of higher education on the basis of undue burden. This is because the DOJ considers the overall financial resources of the "site" when determining "undue burden." In the case of higher education, the site is usually the state in which the institution is located.