OCR Letter: Florida Department of Education

04952114.LLA
01/29/97
Archie B. Meyer, Sr.

Mr. Frank T. Brogan
Commissioner
Florida Department of Education
325 West Gaines Street
Tallahassee, Florida 32399-0400


Re: Allegation of Discrimination in the Provision of Financial Assistance; OCR Complaint #04-95-2114

Dear Commissioner Brogan:

On May 1, 1995, the U.S. Department of Education (Department), Office for Civil Rights, received a complaint filed against the State University System of Florida (University System). The Complainant alleged that the University System discriminated against himself and a class of similarly situated individuals. Specifically, he alleged that the University System is discriminating against students with disabilities in the award of Florida Public Student Assistance Grants (FPSAG), in violation of Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (ADA). The Complainant alleges that, in determining eligibility to receive an FPSAG award, the University System categorically excludes students with disabilities, who are carrying less than a full-time course load as an accommodation for a disability.

OCR is responsible for enforcing Section 504 and its implementing regulation, at 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability in programs and activities that receive Federal financial assistance. OCR also enforces Title II of the ADA and its implementing regulation, at 28 C.F.R. Part 35, which prohibit discrimination on the basis of disability by public entities (including public colleges and universities), irrespective of whether they receive Federal financial assistance.

As part of its preliminary inquiry of this complaint, OCR reviewed information regarding the eligibility criteria for a FPSAG award and the application of the criteria to students with disabilities. OCR also has consulted with the Department's Office of the General Counsel and Office of Postsecondary Education regarding requirements of the Florida State Student Incentive Grant Program, which governs the FPSAG. OCR has coordinated with these offices in preparing this letter. Of particular concern to OCR is the potential adverse impact on individuals with disabilities of FPSAG eligibility Rule 6A-20.031(c). Under this provision, to be eligible to receive an FPSAG award, a student must be enrolled in a minimum of twelve (12) credit hours of study, i.e., must be a "full-time" student. No provision is made in the FPSAG regulation for students with disabilities. Consequently, a student enrolled in fewer than 12-hours of study, as an accommodation for a disability, is automatically considered ineligible to receive an FPSAG award.

A recipient or public entity may not, on the basis of disability, deny a qualified individual with a disability an opportunity to participate in or benefit from an aid, benefit, or service. 34 C.F.R. 104.4(b)(1)(i) and 28 C.F.R. 35.130(b)(1)(i). Under the Section 504 implementing regulation, a recipient may not use criteria that have the effect of subjecting qualified individuals with disabilities to discrimination. Under the regulation implementing Title II of the ADA, a public entity may not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 34 C.F.R. 104.4(b)(4) and 28 C.F.R. 35.130(b)(8).

Additionally, the regulations implementing Section 504 and Title II require that colleges and universities make reasonable modifications in policies, practices, or procedures (including academic adjustment of nonessential requirements), as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating on the basis of disability against qualified applicants or students. 34 C.F.R. 104.44(a) and 28 C.F.R. 35.130(b)(7).

The Section 504 implementing regulation requires that in providing financial assistance to persons with disabilities, a recipient or public entity may not, on the basis of disability, provide less assistance than is provided to those without disabilities. Title II is interpreted consistently with Section 504. 34 C.F.R. 104.46(a) and 28 C.F.R. 35.130(b)(8).

Based on these provisions, member institutions of the University System must award FPSAGs to students who are carrying fewer than 12 credit hours as an accommodation for a disability and who otherwise meet the eligibility criteria for the grant, irrespective of whether the students are enrolled as full-time or part-time students.

Federal regulations implementing the State Student Incentive Grant Program, found at 34 C.F.R. Part 692, set out the eligibility requirements for State participation and student participation. Under these regulations, full-time enrollment is not an eligibility requirement for student participation. Further, the limitation of the award of state grants to full-time students is not an eligibility requirement for State participation. Thus, limiting eligibility for receipt of an FPSAG to students carrying 12 or more credit hours of study is not required by Federal regulation. Nor is the award of an FPSAG to students carrying fewer than 12 credit hours as an accommodation for a disability inconsistent with Federal regulation. In addition, the State of Florida has not demonstrated that limiting award of an FPSAG only to full-time students is essential to the State's administration of its FPSAG program.

Based on the above, OCR concludes that there is sufficient evidence to prove a violation of Section 504 and Title II as it pertains to this allegation. OCR further concludes that this circumstance appears to violate both 34 C.F.R. 104.46(a)(1)(i) (a recipient may not "on the basis of handicap, provide less assistance than is provided to nonhandicapped persons...") and 104.4(b)(4)(i) (a recipient may not use "criteria or methods of administration that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap"). In a letter from Mr. Michael Olenick, General Counsel, Florida Department of Education, dated May 15, 1995, he states that the Department's regulations governing student loan programs may conflict with the requirements of Section 504. The Florida Department of Education has agreed to take voluntary corrective action as set forth in the attached Agreement.

We wish to express our appreciation to you and your staff for the cooperation extended to my staff during the investigation of this case. If you have any questions regarding this letter, please contact Investigator.

Sincerely,

Archie B. Meyer, Sr. Regional Director

by:
Arinita Ballard, Program
Manager Compliance Division One