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Compliance

Section 504 of the Rehabilitation Act of 1973 (Section 504)

I. PURPOSE

Section 504 of the Rehabilitation Act of 1973 (Section 504) is intended to eliminate discrimination against individuals with disabilities in programs or activities that receive federal financial assistance.

II. HISTORY

On September 26, 1973, Congress passed the Rehabilitation Act of 1973, largely in response to civil rights activists advocating protections for persons with disabilities. Section 504 has been amended several times over the years to better define “program or activity,” to replace the term “handicap” with “disability,” and to make minor updates to the act.

III. APPLICABILITY TO BYU–HAWAII

Section 504 requirements apply generally to all the operations of a college, university, or postsecondary institution that receives federal financial assistance from the U.S. Department of Education (ED). As a recipient of federal financial assistance, BYU–Hawaii must comply with Section 504.

IV. REQUIREMENTS

A. Definition

For purposes of Section 504 and this memo, the term “person with a disability” refers to (1) one with a physical or mental impairment that substantially limits one or more major life activities of the individual, (2) one who has a record of such an impairment, or (3) one who is regarded as having such an impairment.

B. General Requirements

Institutions subject to Section 504 must not exclude, deny benefits to, or otherwise discriminate against qualified persons with disabilities on the basis of their disability.
Specific acts of discrimination include, but are not limited to, the following:

  1. Denying an opportunity to participate in or benefit from any aid, benefit, or service provided;
  2. Affording an opportunity to participate in or benefit from any aid, benefit, or service that is not equal to that afforded other individuals;
  3. Providing a less effective aid, benefit, or service;
  4. Providing different or separate aid, benefits, or services (unless such action is necessary to provide aid, benefits, or services that are as effective as those provided to others);
  5. Limiting the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving an aid, benefit, or service;
  6. Selecting a facility’s location with the purpose or effect of excluding persons with disabilities, denying them benefits, or subjecting them to discrimination; and
  7. Using criteria or administration methods that have a discriminatory effect or purpose.

1. Assurance

A university that receives federal financial assistance must submit an assurance that the university’s program or activity will comply with Section 504. The assurance obligates the university during the period it receives federal financial assistance.

2. Section 504 Coordinator

Additionally, a university that employs at least fifteen people must designate at least one employee to coordinate the university’s efforts to comply with Section 504.

3. Notices

A university that employs fifteen or more people must notify participants, beneficiaries, applicants, and employees that it does not discriminate on the basis of disability. The notification must identify the Section 504 coordinator and state, where appropriate, that the university does not discriminate in admission, access, treatment, or employment. Universities can make notification through posting notices, publishing in newspapers and magazines, placing notices in university publications, and distributing written communications. If a university makes recruitment materials or other publications available to participants, beneficiaries, applicants, or employees, it must include the notification in those materials. Importantly, the university must adopt and implement procedures to ensure that anyone can find out about the existence and location of accessible services, activities, and facilities.

4. Grievance Procedures

A university that employs fifteen or more individuals must adopt grievance procedures that incorporate appropriate due process standards and provide for prompt and equitable complaint resolution regarding persons with disabilities.

5. Recordkeeping

Universities must maintain records “in such form and containing such information, as the responsible Department official [. . .] may determine to be necessary[,]” and such records must be available to department officials. Universities must submit compliance reports to the responsible department official, as determined necessary by that official.

C. Admissions

Qualified persons with disabilities may not be denied admission or be subjected to discrimination in admission or recruitment processes on the basis of disability. A university must not use any admissions test that has a disproportionately adverse effect on students with disabilities. Furthermore, the university must ensure that

  1. Admissions tests are administered in a way that accurately reflects the applicant’s aptitude rather than the applicant’s disability,
  2. Admissions tests designed for persons with disabilities are offered as often as are other admissions tests, and
  3. Admissions tests are administered in facilities accessible to persons with disabilities

Universities may not make preadmission inquiries as to whether an applicant has a disability, but they may confidentially inquire about disabilities that may require accommodation.

D. Financial Assistance

When a university provides financial assistance to qualified individuals with disabilities, the university may not, on the basis of the disability, do the following:

  1. Provide less assistance than it would to nondisabled persons,
  2. Limit eligibility for assistance,
  3. Otherwise discriminate, or
  4. Assist any entity or person that provides assistance in a manner that discriminates against qualified persons with disability on the basis of that disability.

E. General Academic Accommodations

Students with disabilities may not, on the basis of a disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under academic, research, occupational training, housing, health insurance, counseling, financial aid, and other services outlined in the law. Universities may not, on the basis of a disability, exclude any qualified person with a disability from any course or other aspects of its educational experience. Universities must use the most integrated settings they can in their programs and activities.

Universities must modify their academic requirements as necessary to ensure that the requirements do not discriminate against, or have the effect of discrimination on, a qualified student with a disability on the basis of the disability. Modifications may include changing the length of time permitted for completing requirements and substituting specific courses mandatory for requirement completion.

Universities may not impose rules on qualified students with disabilities that would limit their participation in the program or activity.

F. Nonacademic Services

Universities may not discriminate on the basis of a disability in providing physical education courses and athletics as well as in counseling and placement services; however, universities may offer separate or different opportunities in accordance with federal regulations. A university that provides extracurricular activities, such as intramural athletics, must provide equal opportunity to students with disabilities. If a university provides significant assistance to a social organization (e.g., a fraternity or sorority), it must make sure that the membership practices of the organization do not permit discrimination on the basis of a disability.

G. Testing Accommodations

Like the Americans with Disabilities Act (ADA), Section 504 requires a university, during course examinations, to provide methods that will accurately measure a “student’s achievement in the course,” rather than reflecting that student’s disability. However, if the test claims to measure sensory, manual, or speaking skills, no such accommodation must be made. Universities should provide students with disabilities with necessary auxiliary aids (e.g., taped texts, interpreters, or readers).

H. Employment

Qualified persons with disabilities may not be discriminated against, on the basis of disability, in recruitment, hiring, promotion, rates of pay, job assignment, leaves of absence, fringe benefits, training, or employer-sponsored activities. A university must make reasonable accommodations (e.g., making facilities accessible or modifying work schedules) to known physical or mental limitations of otherwise qualified persons with disabilities unless doing so would impose an undue hardship. Universities may not deny employment to a qualified person with a disability because of the need to make reasonable
accommodation for the applicant/employee.

Universities may not use any employment tests or selection criteria that screen out or tend to screen out persons with disabilities unless the score or criterion is evidently job-related for that position or unless alternative job-related tests or criteria are evidently not available. Universities that use tests for employment purposes must make sure that the test results accurately reflect the applicant’s or employee’s job skills and not his or her impaired sensory, manual, or speaking skills. Pre-employment medical examinations and inquiries as to whether or not an individual has a disability and as to the nature or severity of that disability are prohibited; however, universities may ask pre-employment questions about an individual’s ability to perform functions related to the job

All employment-related requirements under Section 504 apply to student employees. If a university assists another entity in providing employment opportunities to its students, it must make sure that such opportunities, as a whole, are made available in accordance with Section 504.

I. Facilities

Persons with disabilities must not be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination at a university because facilities are inaccessible to or unusable by them. Importantly, universities do not need to make each existing facility or every part of a facility accessible to and usable by persons with disabilities, as long as the university’s programs and activities, when viewed in their entirety, are readily accessible. Universities may establish or maintain compliance by such methods as redesigning equipment, reassigning classes or other services to accessible buildings, altering existing facilities, and constructing new facilities.

In the case of new construction or alterations, a university must ensure that the facility or part of the facility is readily accessible to and usable by persons with disabilities. Facilities must be designed, constructed, and altered in accordance with sections 3–8 of the Uniform Federal Accessibility Standards (UFAS). However, the Department of Education (“ED”) is planning to revise its Section 504 regulations to formally adopt the U.S. Department of Justice’s 2010 ADA Standards for Accessible Design (2010 ADA Standards) and, thus, will permits institutions to meet the 2010 ADA Standards instead of UFAS as a means of complying with Section 504.

J. Housing

If a university provides housing to nondisabled students, it must provide housing that is comparable, convenient, and accessible to students with disabilities at the same cost. Likewise, if a university works with another person or organization to make housing available to its students, the university must strive to ensure that such housing is, as a whole, made available to persons with disabilities.

V. PENALTIES

Failure to comply with Section 504 may result in suspension or termination of a school’s federal financial assistance. The assistant secretary for the Department of Education’s Office for Civil Rights may also enforce any action deemed necessary to remedy the effects of discrimination.

VI. RELATED MEMOS

Animals on Campus Policy