May 18, 1994 The Honorable Janet Reno United States Attorney General Washington D.C. 20530 Dear Ms.

Reno: I am writing to you concerning the letter you received from the Council of State Administrators of Vocational Rehabilitation. I am a staff attorney with the Minnesota Disability Law Center, and my specialty is ADA issues. I receive questions daily from persons with disabilities regarding the ADA and hear stories of discrimination they have experienced in, violation of the ADA. I an, also a person with a disability, I am blind. I received an education, including a law degree, with assistance from the vocational rehabilitation agency in my state. Without their assistance in paying for readers, and in providing, some other financial services, I would not have been able to get my degree. I am very distressed by the implications of this letter. I am also angered by the fact that our state vocational rehabilitation agencies are using time and money which could better be spent providing services for persons with disabilities, in the hiring of legal counsel to formulate such specious arguments as were raised in this letter. Without exception, the arguments raised are disingenuous and without merit. The first argument raised is that state-funded institutions of postsecondary education are public entities covered under Title II of the Americans with Disabilities Act (ADA.) The letter argues that to send students with disabilities to State Vocational Rehabilitation Agencies to gain services, instead of providing those services themselves, subjects the colleges receiving state funding to charges of violation of the ADA. They argue that this is true, not merely because the school fails to provide physical or program access, but also because it imposes an extra burden, in fact they refer to it as a "surcharge" for students to have to contact Rehabilitation Agencies to seek such services. Such a "surcharge", they argue, is in violation of the ADA. This argument is flawed. Services provided by Vocational Rehabilitation Agencies are generally free to students with disabilities who qualify for such

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services. Students with disabilities who are gaining an education with a goal toward future employment almost always can gain such services from these agencies. The "surcharge" imposed on persons with disabilities would occur if State Rehabilitation Agencies were allowed to stop providing such auxiliary aids as are necessary for students to gain an education, merely because such services should be provided by the college the student is attending. This would mean that the students with disabilities would be left to institute the complaint process against the University, and might not gain an education at all if they did not have the private means to pay for the services they needed, or if they could not get the college to provide such services. Persons with disabilities denied such an education, when such persons already constitute the largest group of unemployed persons, will have greatly decreased chances of productive employment. State Vocational Rehabilitation Agencies would, at best, be placing a "surcharge" on persons with disabilities in violation of the ADA. The second argument raised is that the ADA prohibits one statesubsidized agency from perpetuating ongoing discrimination perpetrated by another state-funded agency. Thus, they argue, that if they participate in providing services to students with disabilities that a post-secondary college receiving public funding should provide, that the rehabilitation agency will be perpetuating the ongoing discrimination perpetrated by the college in

question. This argument ignores the question of how students with disabilities are to gain services, including auxiliary aids, in order to complete their education, if a college cannot or will not provide that service, and the State Rehabilitation Agency will not provide the service. If a state agency refuses to provide services to a student with a disability simply because a post-secondary school should be providing those services, unquestionably the State Rehabilitation Agency itself would be perpetuating ongoing discriminatory actions against students with disabilities. The third argument raised, more of a rhetorical question actually, is: why should students with disabilities be discriminated against by not being provided services which would be provided to students without disabilities? This question is based on a flawed premise. The University has no obligation to provide additional services or pay for auxiliary aids for students without disabilities. In fact, to ask for such accommodation, a student has the obligation to produce evidence of disability and indicate what accommodation is necessary. The fourth argument raised was that post-secondary schools falling under Title III, in essence private schools, are considered public accommodations and must not discriminate against

01-03139 Honorable Janet Reno May 20, 1994 Page 3 students with disabilities in the provision of services. Again, the agencies attempt the specious argument discussed before that asking students to seek assistance from vocational rehabilitation agencies is a burden on the student with a disability. I can guarantee you that no student with a disability considers it more of a burden to seek services from a Vocational Rehabilitation Agency than they do to attempt to pay for those services

themselves or to not gain an education at all because they cannot gain such services. Finally, the letter concedes that previous cases decided under Section 504 of the Rehabilitation Act do not support these arguments, but they argue that those cases were decided prior to the passage of the ADA. The cases to which they refer indicate that, while a federally funded post-secondary school has the obligation to provide physical and program access, that a vocational rehabilitation agency, also receiving federal subsidies, cannot refuse to cover the services. The object of both Section 504 and the ADA is, after all, the provision of an education to a person with a disability, not to quibble about who will provide the service. The language incorporated into Title II of the ADA to provide a student with a disability with services whether or not the college in question refused to cover the services. The object of both Section 504 and the ADA is all, the provision of an education to a person with a disability, not to quibble about who provide the service. The language incorporated into Title II of the ADA is the same language that already existed in Section 501, and the administrative remedies are the same as well. The purpose of Title II of the ADA was to provide the same protection for persons with disabilities receiving state or locally subsidized funding, that such persons currently receive from agencies receiving federal funds. Thus far, cases brought under the ADA have used Section 504 as instructive guidance, and it is unlikely that such cases brought under the ADA would result in a different decision than that reached previously under Section 504. The Council of State Administrators of Vocational Rehabilitation should be ashamed to advocate the balancing of their budgets on the backs of persons with disabilities. Rather than attempt the decrease of services they provide to persons with disabilities, such agencies should be seeking additional ways to provide such services as persons with disabilities need to become productive citizens. No one would disagree that all post-secondary schools should provide physical and program access to persons with disabilities. Perhaps your office can advise post-secondary schools that they must make themselves accessible physically, as well as providing program access and reasonable accommodation, for students with disabilities. However, I would request that you also advise State Vocational Rehabilitation Agencies that they cannot avoid the responsibility of providing services, including auxiliary aids, to persons with disabilities, and that attempts to avoid their responsibilities in this area would constitute a violation of the ADA.

01-03140 Honorable Janet Reno May 20, 1994 Page 4 Thank you for the opportunity to respond to this letter. If you have questions, you may call me at (612) 334-5785, Extension 253.

Sincerely, Kathleen Hagen Attorney-at-Law KH:dld 01-03141