Legal Updates on Exchange Participants with Disabilities
Updates have been made to some of MIUSA's legal references about the "presumption against extraterritoriality" in U.S. federal disability rights laws and implications for study abroad and international students.
The Disability Rights Education and Defense Fund offered a memo in Fall 2010 with updates on Americans going abroad and international participants to the United States include:
- American schools or universities must take some proactive steps to encourage their overseas program partners and organizations to provide physical and program modifications, auxiliary aids, and other accommodations.
- Mandating medical disclosure should not be for the sake of disclosure, but to assist the applicant to make a thorough and fair self-evaluation of whether she has, or can acquire, the qualities that the university or exchange program considers necessary for a successful overseas experience in a particular country.
- A U.S. university or school on American soil that is being asked to place a student with a disability cannot use the fact that the foreign student is not yet on American soil to somehow immunize itself against being subject to federal law.
Find the two documents linked off the webpage for MIUSA's 2005 publication of Rights and Responsibilities: A Guide to National and International Disability Related Laws for International Exchange Organizations and Participants.
The National Association on College and University Attorneys published a NACUANotes article in April 2012 "Federal Disability Laws: Do they translate to study abroad?" which points to:
- "Under certain factual scenarios, Section 504 and the ADA do apply to study abroad programs.”
- “Unfortunately, the recent ADA Amendments offered no
clarification with respect to whether the ADA and Section 504 apply to
programs taking place outside of the United States. There is at least a
colorable argument that they do not apply abroad, but for the reasons
discussed below, institutions should strongly consider designing and
administering study abroad programs with the presumption that those laws
- “Specifically, there are significant mission-related, image-related, and practical considerations that favor proceeding as if disability discrimination laws apply to study abroad programs.”
In the second part of the NACUANotes they address:
- “Moreover, even in the pre-admission phase, disability laws do not appear to prohibit institutions from requiring that a physician certify a student’s ability to safely and fully participate in the program. Such forms, however, should be carefully drafted so as not to directly inquire regarding disabilities, but rather to focus on the essential program requirements. Additionally, such forms, if used, should be required of all program applicants.
- “It does mean, however, that institutions will be faced with additional
questions such as, 'At what point can we inquire about a student’s
disabilities in order to arrange for accommodations?' And, 'To what
lengths must we go to accommodate a student with a disability who is
studying abroad?' Those issues are discussed more fully in the article.
Read the full NACUANotes article on the Catholic University of America's General Counsel Website