NAICU Washington Update

Revised Disabilities Act in the Works

Congress is likely to consider a rewrite of the Americans with Disabilities Act (ADA) this summer. Legislators see a need for clarification in a number of areas because of conflicting court opinions regarding congressional intent and an excessively narrow Supreme Court interpretation of who is protected by the ADA. The ADA applies to colleges both as employers and as providers of educational services.

The greatest change being considered is the definition of disability. In response to court cases narrowing the definition and raising the standard for qualifying as disabled, the new law would create a class of protected individuals aligned with the approach of other civil rights statutes. Disability advocates have felt that, because the ADA has a different construction than other civil rights laws, the courts have overly focused on whether individuals have a severe enough disability, rather than whether they experienced discrimination because of their disability.

Last July, Rep. Steny Hoyer (D-Md.) and Sen. Tom Harkin (D-Iowa), introduced companion bills, H. R. 3195 and S. 1881 to restore the intent and protections of the Americans with Disabilities Act of 1990. While employers expressed multiple concerns about that legislation, recent negotiations between the disability community and business has lead to a compromise agreement that both sides believe is fair. This gives the legislation new impetus for consideration this summer. Both sides are working together for swift enactment of the agreement.

The draft legislation broadens the definition of who is covered. In a major concession to the business community, the agreed-upon language maintains the term "substantially limits a major life activity," and further defines that to mean "materially restricts." However, it also includes an illustrative, non-exhaustive list of these activities that includes cognitive activities (learning, reading, concentrating), as well as physical activities and major bodily functions. At the most fundamental level for colleges, though, experts believe it should not change college curriculum or academic standards.

Most college disability offices seem to believe that there will be changes because of this law, but they don't see the changes as dramatic for most colleges. They say that most colleges and universities have been generous in providing accommodations for their students and their employees, and have seldom limited their services to some of the courts narrower interpretations of the law.

They do caution that the revised bill could increase the number of students approaching the disability office for assistance. Under the proposed legislation, instead of proving their disabilities, students would need to prove sufficient need for a reasonable accommodation.

One area where institutions could face increased accommodation requests is from students with learning or concentration issues. If granted, these might include a quiet testing environment, longer test time, or note takers. Some of the most expensive accommodations - wheel chair access, deaf interpreters, and Braille books, for example - are already in place at most colleges and universities.

We encourage presidents to have their legal counsel review the legislation as it moves through the process to determine how it would affect their institutions, both as employers and as providers of a learning environment.

We will keep you apprised as the bill moves through the legislative process. There has been no major public action recently, but we know committee staff are working on the draft. The House bill has 245 co-sponsors, and the Senate bill has three - Sens. Arlen Specter (R-Pa.), Ted Kennedy (D-Mass.) and Ted Stevens (R-Alaska).

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