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The ADA is an extension of the Civil Rights Act of 1965. Since the ADA is essentially an anti-discrimination act, the Office of Civil Rights investigates complaints.
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To be protected by the ADA the individual must have a disability relative to the general population. In some cases the courts have ruled that a person can be considered to have a disability because that individual is substantially limited in the ability to perform a major life function in relation to those of similar education and training. In Bartlett v. New York State Board of Law Examiners (2F Supp.2d 388 S.D. N.Y.1997), Marilyn Bartlett, a 49-year-old woman with a cognitive disorder that impairs her ability to read, earned a PhD in educational administration from New York University, a law degree from Vermont Law School, and had met all of the prerequisites to sit for the New York Bar Examination. Because of her substantial learning disability she sought accommodation while taking the bar exam. The courts initially ruled that she did not have a disability because she was able to function better than the average person. After several years of litigation it was decided that she did have a disability because she required considerably more time to process information than persons with the same education and training, that is, other students who have completed the necessary training to take the bar examination. Her success in other venues was attributed to her own ability to mitigate her disability by using more time to complete assignments and prior examinations.
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The process of qualifying an individual as disabled under the ADA requires current, detailed, and professional documentation. Institutions are required to provide accommodations only to those individuals who meet the essential functions of the educational program. Accommodations need only address the interactions between functional impairments and task demands.
Not all students who were eligible for special education services in elementary and secondary school are eligible for consideration for services in post-secondary education. There are several differences between IDEA and the ADA.
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Under IDEA students are eligible for services if they meet one of more of the categories defining a disability.
Under the ADA the qualification for identification as a person with a disability is based in "substantial impairment in a major life activity, such as but not limited to walking, speaking, learning."
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Under IDEA the local educational agency teachers and school specialists are responsible for proactively identifying the children who have disabilities.
Under the ADA students are responsible for notifying the appropriate persons at the university that they have a disability and are in need of academic adjustments and accommodations.
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Under IDEA the school district is responsible for all testing necessary to determine whether the student has a disability.
Under the ADA students are responsible for providing the documentation necessary to support their functional limitation and need for accommodation. Because the ADA requires a definition of the functional limitations of the student for a particular task or educational program, the IEP that was prepared in secondary school is usually not acceptable for this purpose. The documentation must be relatively recent, particularly for those impairments that could change over time, such as emotional impairment. Most programs require documentation to be within three years of entering the institution. Schools can assist students who are preparing for entry into college by providing a psychological examination and report that meets the requirements of the ADA as a part of the transition planning as the student prepares to leave high school. Many college students do not have medical insurance to support the necessary testing. They may be living out of the area covered by their HMO and therefore not have access to coverage for the necessary testing.
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Under IDEA schools are required to provide the necessary special education and related services to enable the child to learn.
Under the ADA the institution is responsible only for providing access to the programs and services provided for students without disabilities. They are not required to provide reduced class size, transportation, remedial services, or therapeutic services. For example, the institution is required to provide physical access to buildings. They are not required to provide physical therapy or a personal aide to provide assistance to the student. If such services are required, the student is responsible for providing them.
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Under IDEA schools may alter the nature of the education program to meet the needs of the student and the individual potential of the student.
Under the ADA the institution is not required to reduce or alter its standards to accommodate the needs of the student. For example, a student at Tufts University Medical School (Wynne v. Tufts University School of Medicine, 932 F2nd 791 1st cir 1992) wanted an accommodation because of his learning disability. He reported that he had difficulty taking multiple-choice examinations. He requested that he be allowed to take his qualifying examinations in essay form. The school denied the requested accommodation stating that the rapid decision-making to discrete choices or alternatives was an important and essential function of being a physician. Altering the test would be changing the essential function of the examination. The courts ruled for the institution. A similar case involved a group of students with learning disability at Boston University (Guckenberger v. Boston University 974 F Supp.106, 154-55 D Mass 1997). They requested that they not be required to take a foreign language that was required for all students in the bachelor's program. Boston University argued that the ability to use and understand a language other than English was an essential component of the university's liberal arts program. The students were required to complete the language requirement.
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Under IDEA an IEP is developed for each student to define the special education and related services that will be provided to the child.
Under the ADA there are no IEPs. The student is responsible for meeting the essential standards of the educational program with or without reasonable accommodations. The institution is not required to provide special education or academic tutoring. The institution is required to make all programs and services accessible to the student, including residence halls and recreational facilities. However, they are not required to change or lower the standards for a program to accommodate the functional ability of the students. For example, if a student has a medical condition that limits the number of hours a day the student can be in a practicum setting, the program may extend the period of time that is usually used to complete the practicum. However, they are not required to reduce the number of practicum hours that student would need to complete in the setting, since to do so would lower the requirements for the program.
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