Post-Secondary Education: Distance Learning Issues

Section 504 and ADA protect individuals with disabilities (as defined under the statutes and case law) who are "otherwise qualified." This means that in the case of applicants to post-secondary programs and/or students in those programs, individuals must meet the academic and technical requirements for admission or programmatic participation. Hypothetically, in the case of long-distance learning courses, one of the technical requirements might be access to the hardware and software (and requisite knowledge of how to use it) necessary to participate in the on-line course.

Of course a post-secondary institution could intentionally create academic or technical requirements that preclude individuals with disabilities from qualifying for admission or participation - this is clearly discriminatory under the law. The requirements must be essential or fundamental to the program and the burden of proving this is on the higher education institution. But if successful at defending entrance criteria and/or participation requirements, the fact that individuals with disabilities are precluded from participation is not in and of itself discriminatory. Issues of disparate impact--policies and practices that adversely affect individuals with disabilities but are not the result of intentional discrimination-are extremely problematic. However, not all policies or programs with disparate impact constitute a violation of Section 504 or the ADA. The fact that the long distance learning course admission criteria may preclude participation by lower-income students (some of whom may have disabilities) is not discriminatory on its face. During the passage of Section 504 there was a great deal of discussion of whether individuals who were "handicapped" culturally or economically should be protected. Ultimately these individuals were excluded from coverage.

With the changes in technology and the greater number of students with disabilities in post-secondary programs, many issues in higher education would benefit from specific legal guidance from Department of Education/OCR or the courts. Until then, however, we are left with the existing principles, standards and guidelines. In order to defend criteria that screen out individuals with disabilities, higher education institutions have the burden to show that the admission criteria are essential to the program. In addition, institutions are not required under either federal law to fundamentally alter programs nor to provide accommodations or access that are unduly burdensome.