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When Can We Ask for Disability Information?

Two women, one with a head scarf, lean in to talk confidentially
Two women, one with a head scarf, lean in to talk confidentially

The Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act prohibits participants from being denied admission purely on the basis of disability.

When making choices about accepting or denying an applicant, disability information should be disregarded in the same way as any other non-discrimination status such as religion, ethnicity, or sexual orientation.

To avoid any implication of discrimination or screening out in program admission, many exchange programs will keep disability information separate from an application and not inquire about medical or identity information before a person is admitted. Otherwise it is too easy for program reviewers to act on their own stereotypes about what is safe or possible for a person with a disability, and simply deny entry into the program.

Assessing Qualifications

These U.S. non-discrimination laws, however, do not appear to prohibit international exchange programs from clearly stating essential program requirements in their informational materials or from making narrowly-tailored and disability-neutral inquiries aimed at determining whether participants are otherwise qualified for a program (i.e., able to meet program requirements like GPA or language proficiency requirements with or without accommodations).

Moreover, even in the pre-admission phase, disability laws do not appear to prohibit programs from requiring that a physician certify a participant’s ability to safely and fully participate in the program. Such forms, however, should be carefully drafted so as not to directly inquire regarding disabilities, but rather to focus on the essential program requirements. Additionally, such forms, if used, should be required of all program applicants.

An exchange program can require qualifications that are genuinely necessary for participation in the overseas program, but a decision on this point must be made reasonably and soundly, free of stereotypes and unsupported biases. The existence of widespread stereotypes and prejudice concerning disability in general, and certain disabilities in particular, means that forcing applicants to disclose their full medical histories before acceptance will act as a screening out procedure in practice, even if the questions appear to be neutrally directed to all applicants.

The mere fact of a disability or history of treatment, without more details, and in place of a careful consideration of an applicant’s other relevant information – academic achievement, language skills, life skills and travel experience – may be deemed unjustified and discriminatory. Care needs to be taken in the applicant review process.

Review Process

Non-discrimination laws require that individuals be evaluated on a case by case basis. The focus is not on mandating medical disclosure for the sake of disclosure, but to assisting the person with the disability to make a thorough and fair self-evaluation of whether he or she has, or can acquire, the qualities that the exchange program considers necessary for a successful overseas experience in a particular country.

This does not mean that the exchange program must leave the evaluation of whether a person with a disability is qualified to travel overseas and take part in overseas study entirely up to the individual.

It does mean that the program evaluation must take all factors into account, including the person’s own assessment of his or her capacity to successfully participate in the program with or without physical accommodations, auxiliary aids, and/or program modifications that she or he has come to rely on while at home.

More Information

Download the full documents from which this advice is excerpted, including National Association of College and University Attorneys 2012 Notes, in the Related Resources on legal obligations.

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