This article is from today's Chronicle of Higher Education, and discusses how new DOJ regulations may affect accommodations in higher ed.
Proposed Federal Regulations Would Ease Up on Colleges' Responsibilities Under Disability Law
As Congress considers a bill that would bolster the Americans With Disabilities Act, the Justice Department has proposed new regulations that would limit the accommodations universities and other entities must provide under the existing law.
The lengthy new regulations, which detail requirements for handicapped-accessible seating and qualifications for service animals, among other issues, are scheduled to be published today in the Federal Register.
Compared with current regulations, the proposed update decreases the proportion of seats an "assembly area" must make accessible to people who use wheelchairs. Now that figure is about 1 percent, with the exact proportion depending on the size of the venue. A stadium of 5,000 seats, for example, must provide space for 51 wheelchairs. Stadiums larger than that must provide one more space for every 100 additional seats. Under the proposed new regulations, a stadium of 5,001 seats would have to provide space for 36 wheelchairs. One more space would be required for every 200 additional seats a stadium has. For a stadium with a 50,000-person capacity, that would mean 261-as opposed to 501-handicapped-accessible spots.
"That seems like a step backwards to me," said L. Scott Lissner, who coordinates disability-law compliance for the Ohio State University system. "I don't know of any past examples that actually reduced the standard of access."
At Ohio State's football stadium, Mr. Lissner said, wheelchair-accessible seating is in high demand. "We're easily filling 2 percent" of all seats, he said.
The proposed revisions of regulations, he said, were driven by professional arenas, which tend to draw fewer fans with disabilities than do college stadiums.
The new regulations, if unchanged after a public comment period, would be roughly comparable to the terms of a recent settlement between the federal government and the University of Michigan at Ann Arbor. This spring, in response to a lawsuit over handicapped-accessible seating in its football stadium, the university agreed to provide 329 spots-or a third of a percent of its 107,000 seats-for fans in wheelchairs.
The proposed new regulations on seating would modify the ADA Standards for Accessible Design, an attempt to consolidate several building codes, Mr. Lissner said. As of now, depending on facilities' age and the source of funds for their construction, colleges may be complying with the Americans With Disabilities Act, the Architectural Barriers Act, the Uniform Federal Accessibility Standards, and the American National Standards Institute's guidelines. If the changes pass, Mr. Lissner said, "all of the buildings will be under the same set of standards on campus."
Residence halls, whether operated by or on behalf of a college, would have to meet existing accessibility guidelines for "transient lodging," according to the proposed regulations. Apartment-style housing, on the other hand, would be subject to existing requirements for residential dwelling units. Prior rules did not specify how to classify campus housing for compliance purposes, the Justice Department said.
Service animals are another focal point of the new regulations. The proposed rules distinguish service animals from "emotional-support animals," which they say are not covered by federal disability law.
"Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals," the Justice Department said in an early copy of the proposed regulations posted online.
Support animals, like ferrets and snakes, have been a sticking point for colleges, where students have asked to keep them in residence halls and take them to class.
"The arguments have been made with increasing frequency in recent years that lots of animals other than traditional service animals should qualify," said Michael R. Masinter, a professor of law at Nova Southeastern University. The new regulations would define service animals as those that are specially trained to perform a demonstrable task. That definition may still include "psychiatric-service animals" that remind their owners to take medication or that interrupt incidents of cutting or other self-mutilation.
"The regulations permit one to ask what service the animal has been trained to perform," Mr. Masinter said. "That's a fair question."
Certain animals are explicitly prohibited. They include "nonhuman primates," as well as "reptiles, rabbits, farm animals (including horses, miniature horses, ponies, pigs, and goats), ferrets, amphibians, and rodents."
The bill pending in Congress, the ADA Restoration Act (HR 3195 and S 1881), has concerned some higher-education officials because it defines disabilities more broadly than have a handful of recent court decisions (The Chronicle, June 13). When the legislation, now stalled, becomes final, the group it defines will be eligible for the accommodations the new regulations-and maybe more to follow-propose.
Those, however, are just the minimum requirements, Mr. Masinter pointed out. "All of these laws serve as a floor of what schools may provide," he said. "Schools are always free to go further than where the law requires them to go in accommodating students with disabilities."