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RIGHTS AND RESPONSIBILITIES • MOBILITY INTERNATIONAL USA 

A guide to national and international disability-related laws for international exchange orgranizations and participants

Edited by Susan Sygall and Michele Scheib

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ACKNOWLEDGMENTS 

Mobility International USA (MIUSA) would like to acknowledge Mary Lou Breslin, Marilyn Golden and Silvia Yee from the Disability Rights Education and Defense Fund (DREDF) and Ward Newmeyer, former ADA/504 Compliance Officer at University of California, Berkeley, for writings, comments and insights that have helped to make this publication a useful information tool for international educators and exchange program participants. MIUSA also appreciates the contributions of Arlene Kanter, Professor of Law at Syracuse University, for her analysis of recent case law. We also extend our thanks to Bob Herman of Paralyzed Veterans of America for his helpful reviews. 

We also wish to thank Marie Alice Arnold, Alona Brown, Karen Keen, Johana Schwartz and Jane Falls for their contributions to the institutional and personal experience stories in this booklet.
 
MIUSA is grateful for the work of consultants Brett Campbell for his assistance in editing and Lillian Winkler-Rios for her contribution in the design of this publication. 

MIUSA also appreciates Amicis Arvizu, Lorna McLeod, and Tracy Scharn formerly of the National Clearinghouse on Disability and Exchange, for assistance in editing of this updated edition of Rights and Responsibilities. 

We also extend our thanks to the contributors to the first edition of Rights and Responsibilities— Dee Aronson, Julie Ann Cheshire, Mary Ann Higgins, Pamela Houston, John Meyer, Carole Patterson, Rodney Reeves and Pat Wright—without whom this publication could not have been developed. 

Rights and Responsibilities was produced by the National Clearinghouse on Disability and Exchange, which is funded by the Bureau of Educational and Cultural Affairs (ECA) of the United States Department of State. We would like to extend a special thank you to David Levin of ECA for his assistance and support in bringing this project to fruition.

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INTRODUCTION 
By Susan Sygall, Executive Director, Mobility International USA 

I remember the advertisement in the University of California, Berkeley student newspaper as clearly as if I had seen it yesterday. It said, “Be an ambassador of goodwill – do a semester abroad – all expenses paid. For graduate or undergraduate students.” I contacted my local Rotary Club to get more information about what seemed like an incredible opportunity. This was 1975 and I was delighted that the information booklet I received said, “Persons with disabilities are encouraged to apply.” Just knowing I would not be turned down merely because I use a wheelchair was all the encouragement I needed. I applied, received a full scholarship and had one of the best years of my life studying in Australia at the University of Queensland. 

Upon my return, I conducted a survey of numerous university and non-affiliated exchange programs. I learned that very few people with disabilities had participated in any type of international exchange. I knew that this must change – in order for people with all types of disabilities to gain a global perspective, become future leaders and be successful in whatever careers we choose, we need to have access to the same array of international educational activities that nondisabled people have. 

My experience and convictions gave birth to an idea, which later became an organization. With the assistance of many friends and colleagues, we established Mobility International USA (MIUSA) in 1981. Since then, MIUSA has coordinated more than 150 youth, young adult and professional exchanges involving people with and without disabilities. Outbound exchanges have taken place in countries as diverse as Azerbaijan, Bulgaria, China, Mexico and Japan. Inbound exchanges have involved people with disabilities from all over the world. While offering these exchanges, MIUSA has worked throughout our 23-year history to increase the number of people with disabilities participating in all types of international exchange programs. 

The Americans with Disabilities Act (ADA), a landmark civil rights law, has opened many doors for people with disabilities and continues to have a positive impact on the international exchange field. The passage of the ADA in 1990 bolstered our message that a person cannot be denied access to an educational opportunity based solely on his or her disability. This publication explores different insights on the interpretation of the ADA and its impact on international educational exchange policy. 

In 1995, MIUSA began the National Clearinghouse on Disability and Exchange. This project, sponsored by the Bureau of Educational and Cultural Affairs (ECA) of the United States Department of State, works to increase the inclusion of people with disabilities in the broad range of international educational exchange, volunteer abroad and research opportunities available worldwide.


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The Clearinghouse provides training, publications, referral to international and disability resources and one-to-one advising to ensure that: 
a) Individuals with disabilities learn about any exchange for which they are qualified, and 
b) International exchange organizations and educational institutions have the information needed to include people with disabilities in their programs. 

We have been encouraged year by year by the disability community’s growing awareness of exchange opportunities and by the increasing number of people with disabilities participating in exchanges. 

I know the powerful impact an international exchange experience can have on an individual, a community and, yes, I would even say, the world. I look forward to seeing the Clearinghouse project and publications such as this one dramatically change the face of the international exchange world--where people with and without disabilities participate equally side by side through volunteering, studying, working or researching abroad--taking advantage of all that the world has to offer.

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RIGHTS AND RESPONSIBILITIES
A GUIDE TO NATIONAL AND INTERNATIONAL DISABILITY-RELATED LAWS FOR INTERNATIONAL EXCHANGE ORGANIZATIONS AND PARTICIPANTS

Published by the National Clearinghouse on Disability and Exchange (NCDE), a project funded by the Bureau of Educational and Cultural Affairs of the United States Department of State and managed by Mobility International USA. 

The contents of this guide were developed by the NCDE, which is sponsored under a cooperative agreement from the U.S. Department of State. However, those contents do not necessarily represent the policy of the U.S. Department of State, and you should not assume endorsement by the federal government. 

All information in Rights and Responsibilities: A Guide to National and International Disability-related Laws for International Exchange Organizations and Participants is subject to change without notice. To the best of its ability, Mobility International USA (MIUSA)/ National Clearinghouse on Disability and Exchange (NCDE) verified the accuracy of the information prior to publication. Although efforts have been made to ensure accuracy, MIUSA/NCDE does not guarantee the accuracy of the book. MIUSA/NCDE cannot be held liable for inaccuracy, misinterpretation or complaints arising from this book. Any listing of an organization, company, service or resource should not be construed as an endorsement. 

Please contact MIUSA/NCDE with suggestions or corrections. 

Reprinting of materials is prohibited without express written permission from MIUSA/NCDE. 

Copyright © 2005 Mobility International USA/ National Clearinghouse on Disability and Exchange. 

ISBN: 1-880034-47-6 

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TABLE OF CONTENTS 

Acknowledgments I 
Introduction II 

The Americans with Disabilities Act: What International Program Coordinators Need to Know 3

The Rights and Responsibilities of Program Participants 9 

The Civil Rights of Travelers with Disabilities: The Impact of the Americans with Disabilities Act and Other Disability Civil Rights Laws 15

International Law and Policy 29

The Right of Students with Disabilities to Equal Participation in Study Abroad Programs 41

The Presumption Against Extraterritoriality: Case Studies 53

Study Abroad Experiences Offer Unique Opportunities and Challenges for Students with Disabilities 77

Meeting the ADA Challenge: A U.S. Student in Spain 83

Arranging for Sign Language Interpretation Abroad: A Disability Service Provider Perspective 89

Collaboration between Home and Host Universities 95

Accommodating Exchange Students in the United States 101

A Short Overview of the Americans with Disabilities Act 107

Resources and Publications 115


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THE AMERICANS WITH DISABILITIES ACT: WHAT INTERNATIONAL PROGRAM COORDINATORS NEED TO KNOW 

International exchange allows participants to explore different cultures, meet diverse people and enjoy new places, and the Americans with Disabilities Act (ADA) upholds the right of people with disabilities to participate in these important and life-changing opportunities. As growing numbers of people with disabilities are applying to and participating in exchange programs alongside their nondisabled peers, some exchange professionals may wonder what their responsibilities are as they prepare to include participants, whether those participants are blind, Deaf, have mobility impairments or hidden disabilities. The ADA requires U.S. exchange organizations to make appropriate accommodations for people with disabilities. (In addition, programs may be subject to Section 504 of Rehabilitation Act if they receive federal funds.) That may mean building a ramp at the U.S. headquarters, hiring an American Sign Language (ASL) interpreter or persuading an affiliate program that accommodating a blind student is both possible and valuable to the program. With flexibility and planning in advance, creating an accessible program can be a rewarding experience for everyone involved. 

THE APPLICATION PROCESS 

During the application process for international exchange programs, applicants must be considered solely on the basis of their qualifications, regardless of disability. Once an applicant has been accepted, the process of facilitating appropriate accommodations can begin. Exchange organizations should ask all participants, regardless of whether they have a disability, about what they need to have a successful exchange experience. 

Program staff should review policies to be sure requirements have not been established that would exclude applicants based on disability. Program policies can be changed in minor ways to accommodate participants with disabilities. For example, while an exchange program may require all delegates to carry their own luggage, this requirement might be waived for someone who has difficulty with balance or carrying heavy

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loads. This individual might instead be asked to attend to his or her luggage and make sure that, with someone’s assistance, it arrives at its final destination. 

What happens if someone applies for a site that seems inaccessible? Each person needs to self assess what challenges and compromises he or she is willing to accept in order to have a successful international experience. A site that works well for one person may not work as well for another, even if their disability is the same. An asset that people with disabilities bring to an international experience is that they are generally accustomed to being flexible in dealing with everyday needs and can often make adjustments to handle unexpected challenges. The exchange professionals’ role during the application process is to provide objective information about a program site to the applicant so that person can make an informed decision about whether the site will suit his or her desires and abilities. While it is fair for the exchange professional to gather information for and discuss access issues with an applicant who expresses concerns about accessibility, the time for discussion of what accommodations will allow a participant with a disability to succeed in a program is after the application has been accepted. Whatever the situation, communication between exchange professionals and the person with a disability is key to success. 

ACCESSIBILITY ABROAD 

Although accessibility varies outside the United States, organizations can still plan for inclusive programs. A U.S. organization that is actively involved in setting up and running an exchange program in another country may be expected to select sites and partners and provide services in a way that is as accessible as possible. In some settings, countries and programs, full accessibility by U.S. standards will not be possible, but organizations can offer creative accommodations and assistance to improve program access. This can be done as needed, when establishing new partnerships or renewing overseas agreements. 

Exchange organizations should make clear to their foreign affiliates and contracting partners the expectation that people with disabilities should be able to participate equally. While this may be a new concept in some countries, U.S. organizations can help educate foreign affiliates about methods for including people with disabilities. 

[SIDEBAR]
University of California (UC), Berkeley Application and Accommodation Forms The UC Berkeley Programs for Study Abroad office has an outstanding record and excellent process for including people with disabilities in international programs. Its documents, from publicity flyers to application forms, reflect a clear nondiscrimination policy. 

Students who identify themselves as having a disability are given a timeline and informed what they need to do to expedite the accommodation process. This collaborative approach involves students, advisors, disability services and student health service personnel. These professionals are involved early in the process and are able to provide encouragement and support for students with disabilities. 

Other exchange organizations should note that the UC Berkeley forms: 
• Encourage students with disabilities to apply to UC Berkeley Study Abroad programs 
• Are provided for everyone who applies to a study abroad program, whether or not the applicant has a disability 
• Make clear that all participants have an equal chance and that everyone is welcome to apply to a UC Berkeley study abroad program 
• State that accommodations will be provided for people with disabilities as appropriate.
[END OF SIDEBAR]

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To make a good-faith effort to comply with the ADA, exchange programs should pull together a team to assess general program accessibility and research necessary background information at each overseas site. This team should include people with disabilities from local disability organizations, which can serve as an added resource. With this information, program advisors can present applicants with a realistic picture of what they can expect from their experience in terms of accessibility. Having clear and accurate information about the exchange site and host community, the participant can make informed decisions about how to approach the situation. The participant and exchange coordinator can then figure out how to make adaptations to deal with inaccessibility. Fostering open communication and collaboration between people with disabilities interested in exchange programs and program coordinators is a formula for success. 

SUGGESTIONS FOR EXCHANGE PROGRAMS 
Work to improve diversity by increasing the number of people with disabilities involved in programs. Raising the participation of people with disabilities by 50% over the next two years is a good initial goal. 

• Work with the college or university disabled students services office or local independent living center for ideas about how to recruit and accommodate people with disabilities. This office or center can suggest ideas for publicizing popular programs within the disability community and can assist with the accommodation process. 
• Make sure to create an accessible program office. Purchase a TTY, a telephone device with a keyboard enabling Deaf, hard of hearing and speech-impaired people to communicate by telephone to inquire about exchange programs. 
• Ensure that the office is wheelchair accessible. Have publicity brochures, newsletters and applications available in large print, Braille, on audiotape and/or computer disk for people who are blind or visually impaired. Ensure that online forms are accessible. 
• Highlight a statement that appropriate accommodations will be made for people with disabilities in all advertisements and brochures. 
• Make sure the materials are presented in a way that makes it clear that people with disabilities are welcome in programs. Include 

[SIDEBAR]
Any qualified family can be a homestay for a person with a disability. Organizations can use simple checklists to determine the accessibility features of a home when the family signs up to host exchange participants. This objective information will be on hand and can be referred to in matching a prospective participant with the homestay family. Contact the National Clearinghouse on Disability and Exchange for sample homestay assessment forms. 

Specifically recruit families with disabled members as a regular part of your homestay family pool. Participants with and without disabilities can be placed with these families as they reflect an important aspect of diversity in any community and country. 

For more detailed information on recruiting and preparing homestay families for hosting disabled participants, see Building Bridges: Including People with Disabilities in International Exchange Programs, available through the National Clearinghouse on Disability and Exchange.
[END OF SIDEBAR]

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images of people with disabilities in outreach materials and use language like: “People with disabilities are encouraged to apply.” 
• Recruit people with disabilities as a part of regular recruiting strategies. Find homestay families in each program that have people with disabilities in their households. 
• Make sure that facilities used for program orientations and activities are accessible. 
• Expand organizational resources to include disability-related books and contacts. Create a listing of people with disabilities who can provide support and information. 
• Recruit volunteers and job applicants with disabilities. Have a person with a disability on an advisory board or board of directors. 

INTERNATIONAL PARTICIPANTS WITH DISABILITIES IN THE UNITED STATES 
The ADA prohibits discrimination against all people with disabilities in the United States. Therefore, all exchange participants from other countries involved in programs in the United States are protected against discrimination by the ADA. Since the ADA is a unique law, international visitors will need to become familiar with its protections and with community resources available to them as a result of the ADA. Local disability groups can help with this education and orientation process. 

FOR MORE INFORMATION
 
Local resources for learning more about the ADA include independent living centers, rehabilitation centers, hearing and speech centers, state vocational rehabilitation offices, special education departments within school districts, local disability advocacy groups, state commissions serving blind people and university disabled students services offices. 

[SIDEBAR]
The information in this chapter is for the purpose of working together for the inclusion of people with disabilities in programs abroad, but recognizes these efforts may not be always fully covered legally outside the United States according to some interpretations of the Americans with Disabilities Act (ADA). These interpretations state that the ADA has limitations in that it legally lacks jurisdiction over extraterritorial conditions, meaning it does not necessarily include coverage as is provided in the United States for U.S. citizens with disabilities when they are not physically on U.S. soil. However, whether organizations run their own programs overseas or contract with local partners to run their programs in another country, exchange organizations are covered by the ADA as it relates to the employment provisions of the ADA, and have a responsibility under the law to serve people with disabilities to the extent that it does not conflict with the host country’s laws. Another interpretation that challenges the view of extraterritorial restrictions and concludes that the ADA is applicable overseas is presented in a later chapter of this book.
[END OF SIDEBAR]


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THE RIGHTS AND RESPONSIBILITIES OF PROGRAM PARTICIPANTS


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THE RIGHTS AND RESPONSIBILITIES OF PROGRAM PARTICIPANTS 

People with disabilities have the right to participate in the international exchange program of their choice whether that be a small private exchange program in South America or a program run by a large university in Europe. Participants with disabilities need to be flexible and prepare for life overseas, as accessibility and attitudes abroad are different than in the United States. By working closely with the staff of exchange organizations, the individual will have the best opportunity for successful participation. 

Below are some general guidelines for people with disabilities interested in participating in international exchange. 

Self-identification. Participants with disabilities can choose whether to identify themselves as people with disabilities. Those who do not choose to self-identify should be aware that programs may not be required to accommodate anyone who has not made his or her needs known in a timely manner. 

Document the disability. Participants with disabilities who self-identify and request accommodations may be required to provide documentation that includes a professional assessment of their disability and necessary accommodations. Documentation should be current; some colleges and universities require it to be no more than three years old. The cost of testing and documentation is usually borne by the participant. Disabled student services offices on campuses can be helpful in documenting a disability and pinpointing accommodation options for students. 

Qualifications. A person with a disability must meet all general program qualifications in order to be accepted to an international exchange program. Academic, age and experience-related qualifications must be satisfied as they would be for any applicant. A program cannot create requirements that, by nature, measure whether a person has a disability or that cause a “disparate impact” on people with disabilities.

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Modification of policy. A participant can ask that requirements or policies be modified to accommodate a disability. Modification of policy is a reasonable request if the changes do not fundamentally alter the nature of the program itself. For example, a program that requires students to speak the language of the host country could modify that policy for a participant who isn’t able to speak because of a speech or hearing disability. The participant, however, would be required to show proficiency in communicating in the host language through written, signed or other means of communication. 

Flexibility. Participants with disabilities who collaborate with advisors and program administrators are most likely to be successful in making an international experience accessible. Participants should be clear about their needs and what they can do in order to make the situation workable. Access abroad will not be the same as in the United States, but with planning, programs can meet participant needs at an overseas site. 

Advance preparation. Advance planning is the key to having a successful international experience as a person with a disability. Some types of accommodations might take months to arrange. Program staff should be given enough lead time to make the necessary accommodations. The process may be lengthy, depending on what accommodations each individual might need. 

Providing accommodations. Organizations must make reasonable and affordable accommodations requested by participants with disabilities. However, organizations are not required to make accommodations that place an undue financial burden on the organization or fundamentally alter rudimentary elements of the program. The overall size of an organization or institution is taken into account when determining if an accommodation will pose an “undue burden.” Participants, other than employees, are not generally covered by U.S. civil rights laws once they are outside of the United States, but the application, preparatory activities, and planning that occur in the United States are covered. 

As a participant is presented with descriptive information about the program site, program activities and host country, he or she will be thinking about what kinds of accommodations will make the situation workable. An exchange organization should establish a process in which the participant works with the international advisor and overseas staff to determine which accommodations are necessary in

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order to have a successful exchange experience and which are desirable but not essential. 

These guidelines are important considerations when staff and participants work together to arrange for accommodations and services in all aspects of an international program. Please see the chapter titled “Study Abroad Experiences Offer Unique Opportunities and Challenges for Students with Disabilities” and the stories that follow it in this publication for examples of how programs and individuals have worked together to arrange for successful exchange experiences. 

For further questions about participant rights, contact the National Clearinghouse on Disability and Exchange and/or the Disability Rights Education and Defense Fund. Contact information can be found in the Resources section of this publication. Also see the next chapter, titled, “The Civil Rights of Travelers with Disabilities: The Impact of the Americans with Disabilities Act and Other Disability Civil Rights Laws.”

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THE CIVIL RIGHTS OF TRAVELERS WITH DISABILITIES: THE IMPACT OF THE AMERICANS WITH DISABILITIES ACT AND OTHER DISABILITY CIVIL RIGHTS LAWS

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THE CIVIL RIGHTS OF TRAVELERS WITH DISABILITIES: THE IMPACT OF THE AMERICANS WITH DISABILITIES ACT AND OTHER DISABILITY CIVIL RIGHTS LAWS 
by Marilyn Golden, Disability Rights Education and Defense Fund (DREDF)

Editor’s Note: The information featured in the following chapter will be useful for both individuals and organizations planning travel arrangements related to international exchange programs. 

Travelers with disabilities face many barriers. Whether it’s an explicit refusal (“I’m sorry, but we can’t accommodate the handicapped”) or an implicit one (like steps or narrow doors), the travel destination is the last place anyone wants to run into obstacles. 

Fortunately, laws protect people with disabilities in some of these situations. Inside the United States, and occasionally, outside it, travelers with disabilities enjoy a variety of legal protections from discrimination and exclusion, thanks to a network of U.S. federal civil rights laws, some state laws and laws in other countries. Of course, a law does not automatically guarantee that everything will be free of barriers or discrimination. But barriers have begun to come down, and when there is legal protection, if illegal discrimination does occur, the traveler has recourse— there’s something that can be done about it. 

This chapter discusses some of the most important ways disability rights laws affect travel. Be aware that there may be many more particulars that address any specific travel situation but which are beyond the scope of this chapter. Consult the resources listed at the end of this section for further details. 

IN PUBLIC PLACES AND PROGRAMS 

For many years, disabled travelers had to travel with caution. Going to scenic areas, historic sites, theaters, restaurants, hotels and stores in new cities was a gamble—maybe you could get in, and maybe you couldn’t. 

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But in the United States, barriers, while still prevalent, have begun to disappear. The Americans with Disabilities Act (ADA) and other laws require all newly constructed, privately funded buildings to be accessible, with elevator exemptions for only the smallest buildings. The same laws require that in many, if not most cases, when nonresidential buildings are altered, the altered area must be made accessible and a path of travel to the altered area must be provided. In publicly funded facilities, such as museums and historic sites maintained by local, state or federal governments, the rules are very similar, but even the smallest buildings are not exempt from the requirement for elevators. 

Perhaps most important, in existing, privately funded buildings that are not otherwise being altered, like existing hotels, theaters, restaurants and stores, barriers must be removed if the removal is readily achievable. “Readily achievable” is defined as easily accomplishable and able to be carried out without much difficulty or expense. The readily achievable standard is a flexible one. Larger facilities with more resources, like stadiums and airports, are expected to remove more barriers than small, individually owned stores. 

Barrier removal may include the following: 
• providing a ramp 
• adding grab bars in a restroom 
• rearranging toilet partitions to increase maneuvering space 
• lowering a telephone 
• installing a paper cup dispenser at an existing inaccessible water fountain 
• removing high-pile, low-density carpeting 
• adding Braille and raised letter markings on elevators 
• adding flashing alarm lights 
• creating designated accessible parking spaces 
• rearranging display racks, furniture, equipment, tables or desks to enlarge passageways 
• lowering shelves 

Even if barriers are difficult to remove, facilities are still required to provide their goods and services to people with disabilities through alternative methods such as curb service, if the alternative methods are readily achievable. Alternative methods can include such measures as having a staff person bring goods to an individual who cannot climb a store’s steps because of a mobility impairment or who cannot tolerate the scented products in a store because of chemical sensitivity. 

[SIDEBAR]
AIRPORT SECURITY 
Steps Taken to Ensure that New Security 
Requirements Preserve and Respect the Civil Rights of People with Disabilities 
The Air Carrier Access Act (ACAA) and the Department of Transportation’s implementing rules prohibit discriminatory treatment of persons with disabilities in air transportation. Since the terrorist hijackings and tragic events of September 11, the Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA) have issued directives to strengthen security measures at airline checkpoints and passenger screening locations. In securing our national air transportation system, where much of FAA’s and TSA’s efforts have been directed to date, steps were also taken to ensure that the new security procedures preserve and respect the civil rights of passengers with disabilities. [The following] provides information about the accessibility requirements in air travel in light of strengthened security measures by providing a few examples of the types of accommodations and services that must be provided to passengers with disabilities. The examples listed below are not all-inclusive and are simply meant to provide answers to frequently asked questions since September 11 concerning the air travel of people with disabilities. 

CHECK-IN 
• Air carriers must provide enplaning and deplaning assistance requested by passengers with disabilities, including assistance beyond the screener checkpoints, but have discretion in how this assistance is provided. Individuals who wish to assist passengers with disabilities beyond the screener checkpoint may be required to present themselves at the airlines’ check-in desk and receive a pass allowing them to go through the screener checkpoint without a ticket.
[END OF SIDEBAR]

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In existing government-run facilities that are not otherwise being altered, such as museums and historic sites, the rules are even stronger. Structural barriers must be removed or the program must be changed in a way that provides accessibility for people with disabilities, unless the government in charge can show that the changes would pose an undue burden (defined as a significant difficulty or expense) or a fundamental alteration of the program. Even if such difficulty, expense, or fundamental alteration can be demonstrated, the government in charge must still remove whatever barriers would not pose the undue difficulty or fundamental alteration. If a site is officially designated as historic and accessibility improvements would threaten or damage its historic character, access is still required, although it may be provided in somewhat less stringent ways (such as a steeper ramp or a separate entrance). In the few cases where even this would be historically damaging, facilities may be allowed to provide displays or other ways for people with disabilities to participate in the program. 

Of course, many people with disabilities face barriers which are not structural in nature. People with communication impairments face the absence of sign language interpreters and TTYs (telephone devices with keyboards enabling Deaf, hard or hearing and speech-impaired people to communicate by telephone). A lack of written materials in Braille, in large print, on a computer disk or on tape for people with visual impairments is also a barrier. The law requires that auxiliary aids and services of this type be provided unless it would be an undue burden (defined as a significant difficulty or expense) or a fundamental alteration. Even if such a difficulty exists, an alternative auxiliary aid that removes the communication barrier, which is not an undue burden or fundamental alteration, must be provided if one exists. 

Not only must a facility’s structural and communication barriers be removed, but the programs and services held inside must also remove obstacles and change policies that limit participation by people with disabilities. It is important to remember that these rules affect not only locations, like restaurants, hotels, theaters and stores, but also programs, including travel agencies, car rental agencies, exchange programs and financial aid programs. 

Goods and services must be provided to an individual with a disability in the most integrated setting appropriate to the needs of the individual. For example, a blind person may refuse to participate in a  

[SIDEBAR]
SCREENER CHECKPOINTS 
• Ticketed passengers with their own oxygen for use on the ground are allowed beyond the screener checkpoints with their oxygen canisters once the canisters have been thoroughly inspected. If there is a request for oxygen at the gate for a qualified passenger with a disability, commercial oxygen providers are allowed beyond the screener checkpoints with oxygen canisters once the canisters have been thoroughly inspected. Commercial oxygen providers may be required to present themselves at the airlines’ check-in desk to obtain passes allowing them to go through the screener checkpoint without tickets. 
• The limit of one carry-on bag and one personal bag (e.g., purse or briefcase) for each traveler does not apply to medical supplies and/or assistive devices (including service animals and their equipment). Passengers with disabilities generally may carry medical equipment, medications, and assistive devices on board the aircraft. 
• All persons allowed beyond the screener checkpoints may be searched. This usually will be done through the use of a hand-held metal detector, when possible. Passengers may also be patted down during security screenings, and this is even more likely if the passenger uses a wheelchair and is unable to stand up. Private screenings remain an option for persons in wheelchairs.
[END OF SIDEBAR]

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special museum tour that allows people to touch sculptures if he or she prefers to tour the museum at his or her own pace with the museum’s recorded tour. 

It is illegal to apply eligibility standards that screen out people with disabilities unless they are necessary for the provision of goods and services. For example, a cruise ship generally cannot require a wheelchair user to bring a traveling companion. This requirement may have great impact on travel programs. For example, if a travel program excludes a disabled individual because he or she lacks a particular physical skill, illegal discrimination has occurred, unless the program can show that the physical skill that was the basis for the exclusion is necessary in order to conduct the program. For example, there may be an organized backpacking trip during which participants hike eight miles a day for five days. If one person who wants to join the group can hike only two miles a day, excluding this person may be legitimately necessary for the operation of the program, and would not be illegal. On the other hand, the same program may wish to exclude a visually impaired hiker because the program’s administrators fear that this hiker cannot keep up or would create too great a supervision problem for the trip guide. Programs must make decisions based on an individualized analysis of this particular hiker, including his or her abilities and the accommodations he or she generally uses in hiking, not based on speculation or generalizations. If the program cannot show that the exclusion is necessary, such decision would constitute illegal discrimination. 

A program may exclude someone with a disability based on legitimate safety requirements only if it can show that these requirements are based on actual risks and on facts about particular individuals, not on stereotypes or generalizations about individuals with disabilities. For example, a scuba diving program can require that all participants demonstrate a certain level of swimming ability, if it can demonstrate that there are actual risks to conducting the program with someone who cannot meet that level of swimming ability. 

Programs must make reasonable modifications in policies, practices and procedures when necessary to afford goods and services to people with disabilities, unless the program can show that the modification would fundamentally alter the nature of the goods and services being offered. For example, if a hotel’s reservation system is such that the hotel cannot guarantee the availability of an accessible room, then if a person with a disability who needs an accessible room tries to reserve such a room in advance, the hotel must modify its reservation system to ensure the 

[SIDEBAR]
SCREENER CHECKPOINTS 
• Passenger flow through the screener checkpoints should be controlled to allow a passenger to maintain visual contact with his/her personal property while he/she is being screened. 
• Service animals, once inspected to ensure prohibited items are not concealed, are permitted on board an aircraft. Any equipment (including, but not limited to, harness, backpack, leash or collar) that is carried on the animal will be manually inspected. If necessary, remind the security screeners that the service animal’s belongings should not be removed during the manual inspection. 
• Assistive devices such as walking canes, once inspected to ensure prohibited items are not concealed, are permitted in the passenger cabin. Assistive devices such as augmentative communication devices and Braille note takers will go through the same sort of security screening process as that used for personal computers. However, passengers that have special equipment that cannot go through the x-ray machine should notify the screeners and request a physical/visual inspection of the equipment. A slate and stylus are permitted on board the aircraft after inspection; however, it may be necessary to advise the security screener of the purpose of the slate and stylus and that it facilitates the passenger’s communications.
[END OF SIDEBAR]

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availability of the accessible room. Also, people with disabilities who use service animals such as guide dogs and service dogs must be served and/or allowed to participate like all other patrons or tourists. It is illegal to impose a surcharge on a disabled person to cover the cost of measures taken to comply with the ADA. For example, a hotel which charges a $25 deposit on the rental of a VCR cannot charge a $300 deposit for a TTY. It is also illegal for a program to refuse participation by a disabled person because of insurance company requirements. 

Programs and facilities are not required to provide customers or participants with personal devices, such as wheelchairs or hearing aids. Nor are they required to offer services of a personal nature, including feeding, toileting and dressing, unless these services are customarily provided to clients without disabilities, such as in a hospital where all patients are assisted in dressing. 

IN TRANSPORTATION 
Laws like the ADA and the Air Carrier Access Act have greatly improved travel conditions in the United States for people with disabilities. 

AIR TRAVEL 
Air travel, for example, has changed markedly. U.S. airlines and their contractors may not discriminate against individuals with disabilities. Non-U.S. air carriers are also covered by U.S. law if they stop in the United States, although detailed regulations for foreign carriers have not been issued by the U.S. Department of Transportation at the time of this writing. Airplanes themselves have become somewhat more accessible, including some movable armrests and cabin storage space for folding wheelchairs on many airplanes. On most flights, on-board wheelchairs are available for reaching the restroom, although their use generally requires assistance. Airline personnel on aircraft without a level-entry jetway are required to assist passengers with disabilities to board using lifts. 

The law also requires the removal of communication barriers. For example, airlines must make TTYs available during the same hours telephone service is available to the general public. On-board safety briefings must be accessible to people with hearing impairments by means of captioned or signed video presentations, where videos are present. The procedures for flying have also become more amenable to travelers with disabilities. For example: 

[SIDEBAR]
SCREENER CHECKPOINTS 
• Syringes are permitted on board an aircraft once it is determined that the person has a documented medical need for the syringe. To show a documented medical need, a passenger must have in his or her possession medication that requires the use of a needle or syringe. The medication must have a professionally printed label identifying the medication or a manufacturer’s name or a pharmaceutical label. 
• Personal wheelchairs and battery-powered scooters may still be used to reach departure gates after they are inspected to ensure that they do not present a security risk. Any backpack, sidepack or other item that is carried on or under the wheelchair should be placed on the x-ray belt for inspection. 
• Personal wheelchairs that are folding, collapsible, or breakdown will still be allowed to be stowed on board an aircraft, i.e. in the passenger cabin of aircraft that have closets or other facilities capable of such stowage, except where this practice would be inconsistent with Department of Transportation regulations governing carry-on items and/or the transportation of hazardous materials.
[END OF SIDEBAR]

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• While airlines may offer people with disabilities an early opportunity to board the aircraft, they may not require that they do so. 
• Airlines may not limit the number of people with disabilities on any one flight. 
• Airlines must permit a service animal to accompany a passenger on a flight and must accept credible verbal assurances of the passenger that the animal is a service animal. 
• Airlines may not refuse transportation to, require medical certificates of, or impose restrictions on a passenger on the basis of a communicable disease or infection unless the disease or infection has been determined by a federal public health authority to be transmissible during the normal course of air travel (AIDS and HIV infection have not been determined to be transmissible under the normal course of air travel). 
• Airlines may not leave a passenger unattended on the ground or in a boarding wheelchair for more than 30 minutes. 

Airlines may not require people with disabilities to provide advance notice of their disability-related needs except in the following situations, in which cases airlines may require 48 hours advance notice and one hour advance check-in: 

• Transportation for a motorized wheelchair on an aircraft with fewer than 60 seats 
• Provision by the airline of hazardous materials packaging for a wheelchair battery 
• Special dietary needs 
• Special situations such as oxygen or respirator hook-up 
• Accommodation for a group of ten or more people with disabilities traveling as a group, such as a sports team. 

There have also been improvements in airplane storage and treatment of personal equipment. For example: 

[SIDEBAR]
SCREENER CHECKPOINTS
• Air carriers must return wheelchairs and other assistive devices to passengers with disabilities as close as possible to the door of the aircraft upon request. Passengers with disabilities can assist by checking-in their assistive devices and/or wheelchairs at the gate rather than at the ticket counter. If an assistive device or wheelchair is checked-in at the gate, it would have already cleared security and can be brought directly to the aircraft. If an assistive device or wheelchair is checked-in at the ticket counter, it would need to be screened before it can be brought to the passenger at the arrival gate. 
• Air carriers must ensure that qualified individuals with a disability, including those with vision or hearing disabilities, have timely access to information (such as new security measures) that the carriers provide to other passengers. For example, on flights to Reagan Washington National Airport, persons are verbally warned to use the restrooms more than half an hour before arrival since after that point in time passengers are required to remain in their seats. This can be accomplished through use of carrier personnel or alternative formats, such as visual messaging. 
[END OF SIDEBAR]

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• Wheelchairs and other assistive devices will be checked and returned as close as possible to the door of their aircraft, unless inconsistent with transportation of hazardous materials. 
• Wheelchair users must have access to their own mobility equipment at airports where they change airplanes. People who use mobility equipment cannot be required to check their wheelchairs, crutches, etc. through to the final destination of the flight. Batterypowered wheelchairs shall be accepted as baggage where compartment size permits. 
• Motorized wheelchairs may require check-in one hour early, and must be secured in an upright position where possible. Carriers shall provide battery packaging upon request, and shall not drain batteries. Passengers may provide written directions concerning assembly and disassembly of wheelchairs. 
• People with disabilities cannot be required to sign a waiver for damage or loss for wheelchairs or other assistive devices. 
• Mobility equipment such as a wheelchair is not counted as baggage and cannot trigger a surcharge. 
• Ventilators, respirators and non-spill batteries must be allowed on aircraft. 

One limitation is that people with certain types of disabilities may not be seated in exit rows, the rows of seats on airplanes that are directly beside emergency evacuation exits. 

Intercity Bus Travel 

Air travel is not the only form of transportation affected by the ADA and other disability civil rights laws. These laws have also had an effect on transportation in the United States by bus, train and boat. 

For example, intercity buses may not deny service to a person with a disability and must provide an accessible vehicle if given 48 hours advance notice. Providers may not require advance notice for assistance in loading mobility equipment. Moreover, bus drivers must stop at accessible stations and/or rest stops to allow people with disabilities to use the restroom. 

[SIDEBAR]
HOW TO FILE A COMPLAINT 
Members of the public who feel they have been the subject of discriminatory actions or treatment by air carriers may file a complaint by sending an email, a letter, or a completed complaint form to the Aviation Consumer Protection Division (ACPD) of the Department of Transportation. ACPD’s e-mail address is airconsumer@ost.dot.gov mailing address is: Aviation Consumer Protection Division, U.S. Department of Transportation, Room 4107, C-75, Washington, DC 20590. Complaint forms that consumers may download and/or print are available at http://airconsumer.ost.dot.gov/problems.htm. 

Above airport security information issued on 10/29/01 and revised on 12/06/01 and 06/27/02 by the Office of the Assistant General Counsel for Aviation Enforcement and Proceedings and its Aviation Consumer Protection Division (http:// airconsumer.ost.dot.gov/rules 20011029.htm).
[END OF SIDEBAR]

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Amtrak 
The ADA has also made travel by Amtrak train more accessible to people with disabilities. The ADA provided a timetable by which Amtrak must include more wheelchair-accessible cars with wheelchair-accessible restrooms on each train. Improvements are also required at Amtrak stations. 

Tour Buses and Charter Buses 
More tour and charter buses are now accessible as well, thanks to the ADA. Tour and charter bus companies are generally required to ensure that their newly purchased buses are accessible. Companies that have not bought new buses since the ADA’s requirements went into effect in 1990 are generally not required to have accessible vehicles. As time goes on, more and more have purchased vehicles and now are subject to the requirement for accessible vehicles. 

Local Transportation by Bus 
The accessibility of surface transportation within cities in the United States may be one of the areas most affected by disability civil rights laws. 

Newly purchased buses since 1990 must be equipped with lifts or ramps. A large percentage of buses in the United States are now lift- or rampequipped. Transit agencies are also subject to a number of other nondiscrimination requirements. For example, they must maintain lifts and ramps in good repair. They may not require a disabled individual to transfer out of his or her wheelchair to a bus seat. They must allow people with mobility impairments who do not use wheelchairs (such as people with walkers and crutches, and people with other limitations in their ability to walk) to use the lift or ramp to board a bus. They may not rule particular bus stops off limits to people with disabilities. They must call out stops on the bus frequently to allow people with visual impairments to orient themselves and know when to disembark. 

In addition, transit agencies must provide transportation to individuals with disabilities who cannot use the regular fixed route bus or train systems called paratransit. This usually takes the form of calling a centralized number in order to arrange for a vehicle to make a pick up. Visitors to a city who are eligible for this service because they cannot use the regular bus or train systems must be provided with service for up to 21 days every year, without going through lengthy eligibility determinations, as long as they can demonstrate that they are not residents and that they have a disability. After 21 days, visitors may be required to have a formal eligibility determination made by the transit agency. Those who are visiting a 

[SIDEBAR]
AIRLINE ACCESS HOTLINE 
A toll free hotline was established in 2003 to provide assistance on the spot or for upcoming trips in resolving disability-related air travel problems. The purpose of the seven days a week real-time assistance is to facilitate airline compliance with Department of Transportation’s rules by suggesting to the passenger and the airline involved alternative solutions to the problem. For example, there have been a number of incidents in which hotline duty officers have contacted air carriers and convinced them to accept service animals and electric wheelchairs on board flights, to stow folding wheelchairs in the cabin, and to provide requested wheelchair assistance. The hotline operators also respond to requests for printed consumer information about air travel rights for people with disabilities under the Air Carrier Access Act and the Department’s implementing regulations 14 CFR Part 382. 

Call the Toll Free Hotline 7 a.m. to 11 p.m. EST 
1-800-778-4838 (Voice) 
1-800-455-9880 (TTY) 
Air travelers who want the Department of Transportation to investigate a complaint about a disability-related issue still must submit their complaint to the Aviation Consumer Protection Division in writing via e-mail at airconsumer@ost.dot.gov.
[END OF SIDEBAR]

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city and wish to use public transportation, and will be visiting longer than 21 days, should apply for resident eligibility upon arrival. 

The ADA has many other transit requirements. Consult the Resources chapter of this publication for further details. 

Local Transportation by Rail 
The ADA has also affected local rail transit such as subway systems, commuter rail, and light rail systems like streetcars. These systems were required to have one car per train accessible by 1995. New cars and stations must all be accessible. This requirement is being phased into existing stations in key locations over a period of years. For people who, due to their disabilities, cannot use the regular train system, paratransit is required (see above). 

Taxi Cabs 
Taxi companies are not required by law to provide wheelchair accessible vehicles, such as vans with lifts. But in some cities, accessible taxis are available nevertheless. Whether taxis are wheelchair accessible or not, taxi cabs and the companies that operate them are subject to the nondiscrimination requirements of the ADA. Therefore, they cannot discriminate by refusing to give a ride to an individual with a disability, to stow the wheelchair in the car’s trunk, or to accept a passenger because the passenger has a service animal such as a guide dog or service dog. 

OUTSIDE THE UNITED STATES 

The laws discussed so far in this chapter are U.S. laws, which primarily affect conditions inside the United States. There are many countries outside the United States which also have disability non-discrimination laws, some of which may assist travelers with disabilities and/or make conditions more accessible to them. It behooves disabled travelers to investigate what legal protections they may have abroad. See the chapter on International Law and Policy for more details. 

U.S. disability civil rights laws have limited impact outside the United States, but there are a few circumstances in which they come into play. The strongest function of the ADA outside the United States is in its employment protections for U.S. citizens who work for American companies, their subsidiaries or firms controlled by Americans outside the United States. However, the ADA provides an exemption from coverage for any action that would violate the law of the foreign country in which the workplace is located.

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HOW TO REPORT DISCRIMINATION 

It is important to remember that despite the effect these laws have had, a law is only a piece of paper unless it is implemented. No law can instantly change nationwide discriminatory practices, but it provides an incentive, because with a law in place, a disabled individual who is the victim of discrimination has a tool in his or her hands to bring about enforcement. 

While many businesses and other entities covered by the requirements of these laws have complied with them in good faith, others have not. Like other constituencies covered by civil rights laws, such as people of color and women, people with disabilities will continue to experience discrimination at times, even though nondiscrimination laws are in place. In order to change the discriminatory conditions they face, people with disabilities will need to exercise their right to advocate for themselves and/or to use the enforcement provisions that these laws include. 

Therefore, it is important that people with disabilities be well-informed about their rights. Those who experience discrimination have a number of recourses available to address the discriminatory situation. Many people feel that the only tool at their disposal will be a lawsuit, and they may be concerned about the time, expense or knowledge necessary to carry this out. However, there are many ways to pursue rights, including ways that are cheaper and faster than lawsuits, and in which you can receive assistance in bringing about enforcement. Below is some basic information about enforcement. Please see the Resources chapter for further assistance. 

Another form of pursuing rights, in addition to the methods described below, is to seek some form of alternative dispute resolution such as mediation. Many people with disabilities are increasingly turning to mediation. Some mediators have become more knowledgeable about the ADA and other disability civil rights laws. It is important to be sure that the mediator is someone who is knowledgeable about the rights guaranteed by disability civil rights laws. 

The Air Carrier Access Act 
Those who feel they have been discriminated against under the Air Carrier Access Act have a number of choices as to how to address the situation. First of all, at each airport, every airline must designate one or more complaints resolution officials (CROs) to be available for receiving complaints of discrimination. A CRO must provide a written statement

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in response to a complaint of discrimination at the airport within 10 days of that complaint. This response must inform the individual who made the complaint of the right to pursue further enforcement action with the Department of Transportation. 

Each airline must establish a procedure for resolving written complaints. A written complaint to an airline should include whether a CRO was contacted, the date of the contact and the CRO’s response. A carrier must respond, within 30 days, to written complaints postmarked within 45 days of the alleged violation. 

Any person seeking information or who believes that an airline has violated the law may contact the following office for assistance: 

Aviation Consumer Protection Division 
U.S. Department of Transportation 
400 7th Street, SW 
Room 4107, C-75 
Washington, DC 20590 
Disability hotline: (800) 778-4838 (voice) 
or (800) 455-9880 (TTY), 7 a.m. to 11 p.m. Eastern time, 7 days a week 
E-mail: airconsumer@ost.dot.gov 
Web: http://airconsumer.ost.dot.gov 

The Americans with Disabilities Act (ADA) 

Complaints Against State or Local Government 
Anyone who feels he or she has been discriminated against under the ADA by a state or local government may file a complaint under Title II of the ADA. (See below for ADA complaints against private entities.) Title II complaints may be filed either: 
• With the state or local government entity which is believed to have discriminated, if it has more than 50 employees, 
• With a federal agency enforcing the ADA in the particular area of discrimination, or with the Department of Justice, if one is unsure of what agency to file with, or 
• As a lawsuit in federal district court. 

A complaint must be filed within 180 days of the incident of discrimination, unless the time for filing has been extended by a federal agency for good cause.

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Complaints Against Federally Funded Programs 
If the agency believed to be responsible for the discrimination is an agency of the federal government, or an agency receiving federal funding, a complaint may be filed under Section 504 of the Rehabilitation Act of 1973. 

To obtain a copy of the “Title II of the ADA / Section 504 of the Rehabilitation Act Discrimination Complaint Form,” or to find out more about enforcement, contact the ADA regional Disability and Business Technical Assistance Centers at (800) 949-4232, (voice/TTY) or the U.S. Department of Justice ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY). 

Complaints Against Private Programs or Businesses 
People who feel they have been discriminated against under the ADA by a business or other private entity, rather than a government entity, may file a complaint under Title III of the ADA. Complaints may be filed either: 
• As private lawsuits in federal district court, or 
• As written complaints to the Department of Justice. 

To obtain a copy of the form “How to File a Title III Complaint,” or to get more information about enforcement, contact the ADA regional Disability and Business Technical Assistance Centers at (800) 949-4232 (voice/TTY) or the U.S. Department of Justice ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY). 

Amtrak 
If the discrimination occurred with Amtrak, one might first wish to contact Amtrak’s Customer Satisfaction Office at (202) 906-2121 to discuss the complaint. Complaints against Amtrak may be filed with: 

Federal Railroad Administration 
ROA-10 
Office of Civil Rights 
1120 Vermont Avenue, NW 
Washington, DC 20590 
(202) 493-6010 (voice) 
Web: www.dot.gov/citizen_services/disability/complaints.html

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INTERNATIONAL LAW AND POLICY

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INTERNATIONAL LAW AND POLICY 
By Mary Lou Breslin and Silvia Yee, Disability Rights Education and Defense Fund (DREDF)

International and country-based disability anti-discrimination laws, standards and instruments: Can they help individuals with disabilities working, studying and traveling abroad, and the international exchange professionals working to place these participants? 

During the past two decades people with disabilities have achieved various country-based and international anti-discrimination and human rights reforms. Travelers should acquaint themselves with any laws that exist in the countries they will be visiting, and learn how to use them strategically and effectively to ensure fair and equal treatment during their period of work, study and other opportunities abroad. The purpose of this chapter is to: 

• Provide a brief introduction to the state of disability and human rights law internationally; 
• Discuss how various laws and instruments operate; 
• Suggest ways the laws can be used both formally and informally to resolve problems or issues; 
• Illustrate, using questions and answers, how travelers could use the laws in a few countries to obtain accommodations or resolve disputes; and 
• Provide a partial list of country-based anti-discrimination laws. 

INTRODUCTION 

Throughout the past two decades disability-related anti-discrimination and human rights law and policy reform has taken place along parallel paths: at the international level primarily through the United Nations, and at the country level where the United States has played a leadership role. 

In 1993 the United Nations adopted the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which set forth voluntary steps countries should take to fulfill the promise of equality established in the World Programme of Action created during the period leading up to the United Nations Decade of Disabled Persons (1982-1993). 

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Responding to increasing pressure from the international disability community, in 2001 the UN General Assembly created an Ad Hoc Committee to consider creating a comprehensive international convention to protect and promote the rights of people with disabilities. Any convention ultimately proposed by the Committee must be ratified by UN members before it can come into effect. Existing UN treaties on such issues as human rights and the rights of women and children recently have been interpreted to recognize disability, thus offering new tools to advance broad social reforms for individuals with disabilities. At the regional level, the Organization of American States (OAS) was the first intergovernmental organization to adopt a binding human rights treaty that defined disability-based discrimination—the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities of 1999. 

Since the enactment of the landmark Americans with Disabilities Act (ADA) in 1990, which showed that disability anti-discrimination laws were not only possible but practicable, over 45 countries have enacted or adopted some form of disability rights law or instrument. 

Taken together, these advances represent a shift in the way people with disabilities are perceived and treated by societies around the world. This shift from disability programs and polices grounded in medical or charity models to a social model that integrates people with disabilities into mainstream society. 

HOW DO LAWS, STANDARDS AND OTHER INSTRUMENTS OPERATE? 

Laws, standards and other instruments set forth specific provisions outlining the government’s intentions concerning implementation and enforcement within the constitutional framework of a country or in relation to other regional or international guidelines. They also specify who and what is covered, what actions are required and prohibited, and whether or not enforcement mechanisms and remedies exist. There are various ways for disability rights to be incorporated within domestic and international laws. 

In some instances countries have set forth specific rights for individuals with disabilities, or explicitly incorporated disability within a broad non-discrimination guarantee, in a newly drafted or amended

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constitution. South Africa, for example, included disability rights when the new constitution was drafted after the fall of apartheid. By recognizing disability in the constitution, a nation establishes the highest possible legal basis for ensuring that individual rights are guaranteed in the broadest circumstances. While incorporating disability into the constitution represents a fundamental advance, meaningful implementation of the intent of the constitution is challenging without additional legal guidance, standards and interpretations. It is difficult, therefore, to obtain a resolution to an individual claim of discrimination in countries where the sole legal basis calling for non-discrimination resides in the constitution. Recognizing the importance of an enforcement component, in 2002 South Africa began enforcing the intent of the constitution with respect to the employment rights of people with disabilities through its Human Rights Commission. 

In other countries, existing laws have been amended to establish certain rights for individuals with disabilities in such areas as employment or education, or calling for barrier removal under certain circumstances. Country laws can sometimes be tools for resolving problems. Where the laws have been in place for a period of time, it is likely that schools, colleges, employers and others required to comply are aware of their legal obligations and, therefore, more willing to be cooperative when the need for an accommodation or other issue arises. However, provisions can and do vary widely from country to country. 

UN and regional standards, instruments and conventions may apply across countries, but in general, will not be useful tools for individuals who require relatively speedy solutions to problems they might encounter on international exchanges. The standards and conventions, however, play a role in reforming discriminatory institutional practices and policies, and in shifting the public’s understanding of disability. They are integral tools of the international law reform movement; therefore, exchange participants with disabilities and those working with them should be aware of them. 

INTERNATIONAL STANDARDS AND INSTRUMENTS 

The United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities provide detailed guidance on steps UN member states should take to ensure equality of opportunity and treatment for people with disabilities. Because it is non-binding, member states are not formally required to comply with its directives. Furthermore, it does not provide for individually enforceable rights. Therefore, the 

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Standard Rules, though a statement of rights for people with disabilities, are only enforceable in countries that have adopted it at the country level, and only in accordance with whatever mechanisms that country has elected to apply to it. In general, the Standard Rules are not a tool to quickly secure a resolution to an individual incident of discrimination. Other UN human rights treaties have been interpreted to recognize disability, but their means of enforcement requires a lengthy and complex process that also is not appropriate for resolving issues quickly. Similarly, the OAS Treaty does not provide any mechanism for individuals to seek a resolution to a discrimination claim. 

COUNTRY-BASED LAWS 

Disability laws enacted at the country level also vary widely with respect to who is protected from discrimination, what entities are required to comply, what actions such entities must take to avoid discrimination, enforcement procedures, and required remedies. The ADA contains strong enforcement mechanisms and, therefore, provides a basis for comparison with other laws. For instance, the ADA allows individuals to file an administrative complaint or go to court themselves. It also requires that designated federal agencies investigate most complaints. If they find that an individual has been discriminated against, the business, school, employer or other entity must remedy the problem. The ADA has limited coverage in certain situations, as other countries’ laws do. For example, the ADA applies to most social institutions but limits coverage of religious institutions and does not cover employees working for companies with 14 or fewer people. 

LEARNING THE RIGHTS OF PEOPLE WITH DISABILITIES 

Successfully resolving issues and disputes that arise before or during short term work, study and other visits abroad depends on three factors: 

• Knowing the rights people with disabilities have; 
• Contacts with disability interest groups in the host community; and 
• A willingness by people with disabilities to negotiate on their own behalf. 

Individuals who are considering embarking on a program of study, work or other visits abroad and offices sponsoring programs abroad should attempt to learn the basics about host countries’ various anti-discrimination laws. While they might never pursue a formal complaint, if such recourse is even available, becoming familiar with the various provisions

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of laws could provide them with an advantage in any future negotiation with a host sponsor. When conducting basic research, it is important to remember that a variety of documents comprise “the law.” These can include the law itself, its regulations and guidance issued by executive branches of government or related commissions or governing bodies. In some countries, including the United States, the United Kingdom, Canada and most Commonwealth countries, judicial interpretations of written law can also be used in determining the extent of a country’s legal protections. In some instances provisions covering people with disabilities will be included in broad human rights, employment or other laws. Here are a few basic questions to answer and areas of coverage to look for in a host country’s law(s): 
• What types of entities does the law cover? Employers, schools, places of business? 
• Are people with all disabilities entitled to use the law or only people with certain disabilities? 
• Are foreign visitors covered by the law? 
• Does the law allow an individual to file a complaint? 
• If an individual can file a complaint, where is it filed and what is the timeline for investigation? 
• Does an enforcement agency exist that can help a traveler resolve a problem covered by the law? 
• What steps, if any, are covered entities required to take to ensure that discrimination does not occur? Examples could include barrier removal, provision of accommodations, modification of policies or provision of aides and services. 

Not all country laws have a provision that allows an individual to file a complaint or seek a remedy to their individual problem. For example, Germany passed an anti-discrimination law in 2002 but it does not include a provision for individuals to seek remedies to discrimination. Conversely, the United Kingdom’s 1995 Disability Discrimination Act (DDA) does provide for such a right, much as the ADA does. Some countries have laws that only cover public employers while others cover only medium-sized, private employers. The DDA, for example, exempts employers with 14 or fewer employees from coverage. Therefore, if an individual is planning a paid internship with an employer in the United Kingdom who has 10 employees, the DDA would not apply to that individual. Some laws, like the ADA, specify steps an institution such as a school or college must take to provide accommodation to students who require it, though typically some restrictions exist as well. For example, New Zealand’s 1993 Human Rights Act states that students with disabilities can be refused admission if they require special services or 

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facilities that in the circumstances cannot reasonably be made available. It appears that the burden of proving the reasonableness of needed services or facilities rests on the student. 

How Can Exchange Participants and Those Working with Them Use the Law Formally and Informally to Resolve their Problem or Issue? 

It is especially important to determine if the law establishes an official body or organization charged with providing enforcement information and assistance. For example, the United Kingdom’s DDA is enforced through the U.K. Disability Rights Commission, which answers questions, attempts to resolve disputes, investigates complaints and provides some direct representation. Such organizations can be a good resource for travelers if they experience a problem related to their disability. 

Similarly, it is important to identify any disability advocacy groups located in or near the locations of the study or work program. Local groups will be familiar with the practical application of the country law, and the most effective mechanisms for resolving a problem, e.g., polite inquiry, appeal to a particular individual or board, or forceful negotiation that invokes the law. Furthermore, local disability leaders will have personal relationships within the community that can prove most valuable. In situations where no law exists and a problem or conflict arises, it is even more important to have local advocacy support readily available since the outcome will rely on the good auspices of the host and the established effectiveness and reputation of the local group or organization. In any situation, knowledge of the law provides an advantage even though a resolution to the problem might be reached without direct reference to it. 

HYPOTHETICAL CASE EXAMPLES 

If an Australian university hosts an American exchange student, is that student afforded any protections by the Australian Disability Discrimination Act (ADDA)? Would she or he be entitled to accommodations? 

The rights of people with disabilities are protected in Australia by the ADDA. All Australian universities have student service units, generally referred to as A&E Units, which facilitate the inclusion of people with disabilities in university life. The university services are available to any student attending the university—whether local or international, including exchange students. Students with disabilities should be in contact with the unit when they apply for an exchange program, both in order to clarify what support is needed and available, and to forestall any 

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concern that the university might have about the ability of the student to participate in the program. Should discrimination take place, e.g., the student’s needs were not accommodated, she or he could file a complaint that invoked the ADDA. 

If a university in the United Kingdom hosts an American exchange student, is that student afforded any protections by the Disability Discrimination Act (DDA)? Would she or he be entitled to accommodations? 

Since September 2002 students with disabilities, including exchange students over the age of sixteen, have been covered by the DDA. Discrimination is prohibited in postsecondary education admissions, enrollment, related services and in any services specifically for students. This includes not only teaching and learning but also opportunities and facilities such as student outings, leisure facilities and canteens, libraries and learning centers, work experience and student accommodation. Accommodations, referred to as adjustments, involving “auxiliary aids and services” (that is, additional aids or services, such as additional software for a partially sighted student or extra tutoring for a student with dyslexia) are required as of September 2003. Adjustments involving changes in physical features are required after September 2005. If a dispute arises, the U.K. Disability Rights Commission can facilitate a resolution, or the visitor can file a formal complaint, though the length of time required to resolve a formal complaint might be longer than the individual’s planned stay. However, this could still be useful for programs planning to send other students in that it could set a precedent and help smooth the way for future participants with disabilities. 

Is an individual with a disability who has completed a study abroad program and plans to travel in Ireland protected from discrimination by businesses such as restaurants and shopping facilities? 

Ireland’s 2000 Equal Status Act prohibits disability discrimination in the supply of goods, services and facilities. There are some exemptions, however. Business owners and providers are exempted from paying more than nominal costs in all circumstances related to the provision of a service or facility to a person with a disability. Nevertheless, it may be discriminatory not to take all other reasonable measures to accommodate the needs of a person with a disability. In light of this restriction, travelers should not expect to find significant architectural accessibility to businesses offering goods and services. Should prohibited discrimination take place, such as a physically accessible restaurant denying service to a wheelchair user, the person who has experienced discrimination can seek assistance from Ireland’s Office of Equality Investigations,

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which will assist with and investigate complaints. In light of the length of time it might take to resolve a complaint, travelers who experience such discrimination may choose to advocate with the restaurant owner directly by explaining the requirements of the law. 

What should a high school student with a disability planning a three-month course of study in Costa Rica know about his or her legal rights in that country? 

Igualdad de Oportunidades Para las Personas con Discapacidad—Ley 7600, the Equal Opportunities Law For Persons With Disabilities—Law 7600, enacted in Costa Rica in 1996 prohibits all forms of discrimination against people with disabilities. In all education programs, the law requires that no student with a disability be excluded from any activities, that evaluations be conducted and that adapted education curriculum be provided if needed. It also requires accessibility and necessary support services. If a student encounters a disability-related problem in a secondary education program that cannot be resolved informally, she or he should contact Costa Rica’s Ministry of Public Education, which is in charge of enforcing the law in the area of education. Through advocacy and negotiation most problems can be resolved. As with most shortterm problems, the student should also contact the local disability advocacy group for advice and assistance. 

PARTIAL LIST OF DISABILITY ANTI-DISCRIMINATION LAWS 

The following list is published at www.dredf.org where either the text of the law, a summary or an abstract is available in English. Many of the laws are also presented in their original language. 

Argentina: Ley 22.431, y decreto reglamentario 498/83 
Australia: Disability Discrimination Act 1992 
Bolivia: Ley no. 1678 (1995) 
Brazil: Constitution (1988) 
Canada: Constitution-Charter of Rights & Freedoms (1982); the 
Canadian Human Rights Act; and the Employment Equity Act 
Chile: Ley no. 19.284 (1994) 
China: Law of the People’s Republic of China on the Protection of 
Disabled Persons 
Colombia: Ley 361 DE 1997 
Costa Rica: Ley no. 7600 (May 29, 1996) 
Ecuador: Ley Sobre Discapacidades no. 180 (1992)

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Ethiopia: The Rights of Disabled Persons to Employment Proclamation, no. 101/1994; and Labour Proclamation, no. 42 of 1993 
Fiji: Constitution (1988) 
Finland: Constitution (2000) 
France: Code Penal; Code de Travail; Loi no. 91-663 (July 13, 1991); Decree no. 98-543; Decree no. 99-756; Decree no. 99-757; and the Accords de Branch (25 March 1993) 
Gambia: Constitution (1996 Draft) 
Germany: Constitution (1949, amendments to 1998); and the Severely Handicapped Persons Act (1986) 
Ghana: Constitution (1992); and The Disabled Persons Act 1993 
Guatemala: Law of Attention to Persons with Disabilities, 135-1996 
Hong Kong: Ordinance on Disability, c. 478 (1990) 
Hungary: Constitution (1949, amendments to 1997); and the Equalization Opportunity Law (Act no. XXVI of 1998) 
India: Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 (no. 1 of 1996) 
Ireland: Employment Equality Act (no. 21 of 1998); Equal Status Act, 2000; and the National Disability Authority Act, 1999 
Israel: Equal Rights for People with Disabilities Law, 5758-1998 
Japan: Human Resources Development Promotion Law 
Jordan: Law for the Welfare of Disabled Persons, no. 12 of 1993 
Korea: Welfare Law for Persons with Disabilities (no. 4179, Dec. 30, 1989); Act Relating to Employment Promotion, etc. of the Handicapped (no. 4129, Jan. 15, 1990); and The Special Education Promotion law (amended on Jan. 7, 1994) 
Luxembourg: Loi Sur les Travailleurs Handicapes (Nov. 12 1991); and Code Penal (ss. 444 & 453-58) (1997) 
Madagascar: Loi no. 97-044 Sur les Personnes Handicapees; and Code de Travail (1994) 
Malawi: Constitution (1994); and Law no. 48 of 1971 
Mauritius: Training and Employment of Disabled Persons Act, 1996 
Namibia: Labour Act 1992; and the National Vocational Training Act, no. 18, 1994 
New Zealand: Human Rights Act, 1993 
Nicaragua: Ley no. 202 (1995) 
Nigeria: Nigerians with Disability Decree 1993 
Panama: Codigo de la Familia, Ley no. 3, May 17, 1994 
Paraguay: Labour Code of 1961; and the Political Constitution of 1992 
Philippines: Magna Carta for the Disabled 
South Africa: Constitution-Bill of Rights (1996); and the Employment Equity Bill (B60-98) 
Spain: Act No. 8, To Promulgate a Worker’s Charter

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Sri Lanka: 1996 Protection of Persons with Disabilities Law 
Sweden: Act Concerning Support & Service for Persons with Certain Functional Impairments, SFS 1993: 387; and the Law on a Ban Against Discrimination Disabled Persons in Working Life, 1999- 132 
Switzerland: Constitution (2000) 
Thailand: 1991 Rehabilitation of Disabled Persons Act 
Uganda: Constitution (1995) 
United Kingdom: Disability Discrimination Act 1995; Disability Rights Act 1999; and Northern Ireland, Disability Discrimination Regulations 1996 
Venezuela: Ley para la Integracion de las Personas Incapacitadas (Aug. 15, 1993) 
Zambia: The Persons with Disabilities Act 1996 
Zimbabwe: Disabled Persons Act 1992

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THE RIGHT OF STUDENTS WITH DISABILITIES TO EQUAL PARTICIPATION IN STUDY ABROAD PROGRAMS

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THE RIGHT OF STUDENTS WITH DISABILITIES TO EQUAL PARTICIPATION IN STUDY ABROAD PROGRAMS* 
By Arlene S. Kanter, Professor of Law, Syracuse University College of Law

The number of students with disabilities attending postsecondary institutions has increased in recent years, now totaling approximately 9% of all college freshmen.1 Students with disabilities, as well as students without disabilities, have the right to be treated equally by their schools from the admissions process through graduation. 

Two federal laws, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) prohibit colleges and universities from discriminating against students with disabilities and require them to provide reasonable accommodations to eligible students. But how far does this anti-discrimination mandate extend? Does it extend to schools and programs beyond the borders of the United States? Must a college accept a student with a disability into a semester abroad program if that student would require accommodations to participate? Is a college required to pay for a sign language interpreter to accompany a student participating in a program overseas? Must the classrooms and facilities on the campus of U.S. universities overseas be accessible to students with disabilities? The purpose of this article is to answer these and other questions related to the rights of students with disabilities to participate in educational programs overseas.2 

WHICH STUDENTS ARE COVERED? 

Section 504 of the Rehabilitation Act prohibits discrimination against qualified students with disabilities by programs or activities that receive federal financial assistance. Most colleges and universities now receive federal aid, often in the form of student loans, and those colleges and universities are bound by Section 504’s prohibition against discrimination. Under Section 504, a qualified student with a disability is one who meets the academic and technical standards required for admission to, or participation in, the college’s educational program or activity.3 Further, public colleges and universities are prohibited from discriminating against students with disabilities under Title II of the ADA, which  

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prohibits discrimination by states and state entities.4 Title III of the ADA requires that all places of public accommodations, including facilities operated by private colleges and universities, must comply with the requirements of Title III’s accessibility mandate. 

Section 504 and the ADA include essentially the same threshold definition of an “individual with a disability.” Individuals entitled to protection under these laws are individuals whose mental or physical impairments substantially limit one or more of their major life activities, individuals with a record of such impairments, and individuals who are regarded as having such impairments.5 “Major life activities” include “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 6 In light of recent Supreme Court cases, however, the scope of coverage of the ADA and even Section 504 may be narrowed. The determination as to whether an individual’s impairment substantially impacts a major life activity should be made in light of any mitigating measures the individual may employ.7 

Moreover, neither Section 504 nor the ADA protects individuals with disabilities who pose a direct threat to others8 or those who currently use illegal drugs.9 But both the ADA and Section 504 apply to Americans employed overseas. 10 Several federal courts have found that the Rehabilitation Act generally applies to federal employment, even when such employment frequently takes the employee overseas, such as in the U.S. Foreign Service. 11 

Although postsecondary educational institutions have no legal obligation to identify students with disabilities, schools are required to inform applicants for admission of the availability of auxiliary aids, services and academic adjustments, and the name of the person designated to coordinate the college’s efforts to carry out the requirements of Section 504.12 After admission, in order to receive accommodations, the student must make his or her disability known and request accommodations in a timely manner. 13 After a student requests an accommodation, the college or university may inquire about the student’s disability for the purpose of determining whether certain academic adjustments or auxiliary aids or services may be needed. 

A student who requests academic adjustments or auxiliary aids because of a disability may also be required to provide documentation of the disability and the need for the services or accommodations

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requested to the school’s disability office. The documentation may include the results of medical or psychological diagnostic tests or other professional evaluations to verify the need for academic adjustments or auxiliary aids. 

Once a student satisfies the statutory requirements for coverage under Section 504 or Title II or Title III of the ADA, the university or college must provide the requested accommodations unless they would “result in a fundamental alteration in the nature of a service, program, or activity or would result in undue financial and administrative burdens.”14 Other chapters in this publication provide additional details on the requirements of these laws. In recent years, however, a pattern of inconsistent approaches by administrative agencies and at least one federal court has emerged with respect to the requirement of accommodating students with disabilities seeking to participate in study abroad programs. 

STUDY ABROAD PROGRAMS AND STUDENTS WITH DISABILITIES 

Study abroad programs have become increasingly popular. In recent years, the number of students participating in study abroad programs has more than doubled, from 71,154 in 1991-92, to 154,168 in 2000- 01, or an increase of 116%. 15 In fact, some would say study abroad programs have become an integral part of undergraduate education, and a popular recruiting tool. In the field of higher education today, study abroad programs have expanded to provide students the opportunity to gain skills and new insights, cross-cultural awareness and potential employment advantages in the global economy.16 

Until recently, there was little guidance provided to students with disabilities about whether or not they have the same rights to accommodations overseas as they do on campuses within the United States. Even now, with three decisions by different district offices of the Office of Civil Rights (OCR) of the United States Department of Education and one federal court decision, the issue remains unresolved. 

The first federal court to decide the extent of a student with a disability’s right to receive accommodations by her college in its study abroad program is Bird v. Lewis and Clark College. In the spring of 1996, an American student at Lewis and Clark College was accepted into the college’s program in Australia. The student uses a wheelchair, and once she arrived in Australia, she alleged that she was not provided with the accommodations she had requested.17 Although she was permitted to

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attend the program, she was not permitted to participate in all of the activities and was carried, rather than provided with alternate means of transportation and accessibility.18
 
The district court in Bird concluded that Section 504 clearly applies to the school’s overseas program, recognizing that once a university accepts federal funds, it is obligated to ensure that the university does not discriminate against its students with disabilities. As the district court wrote, “[t]he ongoing requirement of adherence to the Rehab[ilitation] Act and the ADA did not evaporate when Lewis and Clark College faculty accompanied Lewis and Clark College students on a Lewis and Clark college sponsored program overseas.”19 The district court reasoned that although the requested accommodations were to be provided outside of the United States, the plaintiff was an American student who attended an American university’s overseas program, taught by American faculty, who were employed by an American college, which is incorporated within the United States, and was doing business in the United States. Accordingly, the court concluded that the student was entitled to protections under Section 504 and the ADA.20 Rejecting the college’s argument that neither Section 504 nor the ADA apply to conduct or persons overseas, the court held that if Section 504 and the ADA were not applied extraterritorially, “students on overseas programs would become the proverbial ‘floating sanctuaries from authority’ not unlike stateless vessels on the high seas.”21 And even stateless vessels, the court continued, “may be subject to United States jurisdiction where defendants are all citizens or resident aliens of the United States.”22 On appeal, the court of appeals found no need to reach the issue of extraterritoriality in its decision affirming the lower court’s decision.23 

In addition to Bird v. Lewis and Clark, the U.S. Department of Education (ED) has decided three cases, each from a different regional ED Office of Civil Rights (OCR), and each reaching a different conclusion, based on different reasoning. A case in 2001 involved a request by a deaf student at Arizona State University (ASU) for sign language interpreter services in order to attend an overseas program in Ireland. OCR upheld the school’s decision to deny interpreter services to the student, concluding that Section 504 of the Rehabilitation Act and Title II of the ADA may not be applied extraterritorially, or beyond the borders of the United States.24 OCR wrote that neither the ADA nor Section 504 “prohibit discrimination on the basis of disability in overseas programs.”25 Accordingly, the OCR held that ASU was not required to provide auxiliary aids or services, including notetakers and interpreters, to an ASU student during his year of study in Ireland, notwithstanding the fact that

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the student was eligible to receive such services and did in fact receive them as a student at ASU.26 In this case, the OCR seemed to find persuasive the fact that unlike the college in Bird, ASU was not itself operating the program in Ireland. Thus, while it may be true that a student attending an overseas program that is not part of an American university may not be entitled to protection under American laws, the OCR in this case should have at least conducted an inquiry regarding the relationship between the foreign program and the American university, as did the federal district court in Bird.27 

In a second case, decided in 1990 by a different OCR regional office, the OCR upheld another university’s decision to deny accommodations to a student overseas, but for different reasons than in the ASU case. In this case, the OCR upheld St. Louis University’s decision to deny a student request for a Macintosh computer as an auxiliary aid to accommodate his learning disability while he was a student at the university’s program in Spain.28 But in this case, unlike in the ASU case, the OCR conceded that Section 504 may apply to students participating in study abroad programs when it reached the merits of the case, and upheld the university’s denial of the student’s request for the computer. The OCR did not uphold the university’s decision solely on the basis that the requested accommodations would be provided overseas, but instead concluded that the student’s request for access to a Macintosh computer (instead of access to the IBM computer that was made available to him) did not amount to a violation of Section 504. 29 According to the OCR, “[p]rovision of an IBM computer was an effective auxiliary aid to accommodate the injured party’s difficulties with punctuation and spelling. Further, the University offered the [student] use of a Macintosh computer almost six weeks after school started.”30 Therefore, because this case was decided on the specific facts involving the student’s request for a particular type of accommodation, it should not provide a precedent for other schools to deny accommodations to students studying abroad. 

In a third case, decided in 1992, between the time of the decisions in the St. Louis University and the ASU cases, the OCR of a third regional office reached an entirely different result than in these other cases. In this case, the OCR held that St. Scholastica College, a private college in Minnesota, was obligated under Section 504 to