Typically, when a student isn’t happy with a response to an individual request, the result is a complaint to the U.S. Department of Education’s Office for Civil Rights (OCR). The routine OCR response is to investigate, possibly make a campus visit, and resolve the complaint with a letter of resolution or an agreement.

Over the past several years the federal government and individual litigants have ramped up efforts to ensure equal access to facilities.

• The Department of Justice (DOJ) now conducts comprehensive compliance reviews of access to selected campuses and has entered several enforceable settlement agreements. Two agreements are with proprietary (trade) schools.
• Individuals are increasingly “taking it to court” and not just relying on the federal government for enforcement.
• The Department of Education made its first referral of an administrative complaint for litigation – in the University of Michigan case – to DOJ in 2008. DOJ joined in private litigation and secured a consent decree requiring changes to UM’s “Big House,” the largest university stadium in the country.
• Under the 2010 regulations, the Department of Justice can now conduct investigations and compliance reviews of public colleges and universities under title II without a referral or delegation from the Department of Education.

The DOJ has entered into numerous agreements with colleges and universities in the last few years, focusing primarily on physical access but also addressing such issues as food allergies and accessibility of electronic book readers.

In a December 2012 agreement, Lesley University was required to make reasonable modifications to ensure full and equal enjoyment of meal plan and food services for students with celiac disease and other food allergies. The university was also required to pay $50,000 to individuals affected by its earlier policies and practices. Read the agreement and DOJ’s technical assistance piece about allergies.

Previously, in a 2010 agreement, Arizona State University ensured accessibility of electronic book readers to individuals with vision disabilities. DOJ and the Department of Education issued a joint letter to colleges and universities in 2010 explaining that “requiring use of an emerging technology in a classroom environment when the technology is inaccessible to an entire population of individuals with disabilities–individuals with visual disabilities–is discrimination prohibited by the [ADA and section 504] unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner.” Letter from DOJ and Department of Education

On September 16, 2010, DOJ announced its first settlement agreement to result from its efforts to address physical access to universities. This agreement, with McNeese State University in Louisiana and the Board of Supervisors of the Louisiana System, resulted from a compliance review that began after the state attorney general’s office took the position – in private ADA litigation against the campus – that it was not required to have an accessible toilet room in its primary student union building.

Under the agreement, the university will

• Bring all newly constructed facilities into compliance with the ADA Standards
• Develop and implement a campus wide Physical Access Plan to bring all covered facilities into compliance with Title II of the ADA. The Physical Access Plan will include specific remedial actions and time tables to ensure that the university’s programs, services and activities afford program access by no later than Sept. 1, 2016;
• Display information on its website about disability access and create and/or update its campus-wide emergency evacuation, sheltering, and shelter-in-place plans for individuals with disabilities; and
• Designate an ADA coordinator.

In addition to the specific work required, the state board of supervisors has begun procedural changes to emphasize ADA accessibility rules and regulations for capital outlay projects for the University of Louisiana System.

DOJ has entered into eight similar agreements with private colleges and universities.

The agreements are available at the Americans with Disabilities Act web site.

It’s important to know that if your institution receives federal financial assistance, you’re subject to section 504 of the Rehabilitation Act and OCR’s complaint process. Almost all colleges – except for a handful of private colleges that refuse federal financial assistance – are covered. If you’re a public college, you’re also subject to title II of the ADA, DOJ’s regulation, and OCR’s complaint process.

Title III of the ADA applies to all private colleges (except those that qualify for the “religious entity” exemption) whether or not they receive federal funds. The DOJ reviews focus on private colleges. They have to comply with DOJ’s title III rule. DOJ can litigate and get civil penalties and damages for individuals. DOJ has agreements with several private colleges.

Over the years individuals have filed litigation under the ADA and section 504 and have gotten extensive relief by doing so. In one case, a community college agreed to spend at least $7.5 million for accessibility improvements to its campuses, pay damages and $1.6 million in attorneys’ fees, and check and maintain all access features on a prescribed schedule.

All institutions should have plans for evacuating your buildings in the event of an emergency.  As a matter of civil rights, you have an obligation under the ADA to ensure equal opportunity for people with disabilities. That duty extends to any plans you may have for evacuating buildings, communicating with the university community in an emergency, sheltering students or the community, or providing transportation in an emergency. DOJ includes a requirement for addressing these issues with respect to people with disabilities in almost all of its higher education agreements.