Who is Protected Under Title II?

This chapter will examine the issue of who is entitled to protection under Title II of the ADA. The regulation prohibits discrimination against any "qualified individual with a disability." Determining whether a particular individual is protected by Title II begins with understanding what is considered a disability under Title II (and what is not). Next, the chapter addresses the question, "Who is a _qualified individual with a disability?" It then identifies other persons covered by the ADA because of their association with persons who have disabilities or because they have been retaliated against for their participation in Title II activities. Finally, it discusses circumstances that would exclude someone from coverage as a person with a disability.

WHO IS A PERSON WITH A DISABILITY?

People commonly refer to disabilities or disabling conditions in a broad sense. For example, poverty or lack of education may impose real limitations on an individual's opportunities. Likewise, being only five feet in height may prove to be an insurmountable barrier to an individual whose ambition is to play professional basketball. Although one might loosely characterize these conditions as disabilities in relation to aspirations of the particular individual, the disabilities covered by Title II are limited to those that meet the ADA's legal definition--__those that place substantial limitations on one or more of an individual's major life _activities.

A Three-Pronged Definition

The ADA uses a three-pronged definition of disability.

For the purposes of coverage under the ADA, a person with a disability is defined as an individual who meets any of the three conditions outlined in the statute cited on the right. Each component of the definition is explained in the regulations. Note that the ADA's definition of a person with a disability is essentially the same as the definition of a person with a disability under Section 504.

42 U.S.C. ? 12102(2)

The term _disability means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

Persons with Physical or Mental Impairments

The first prong of the definition covers those persons who currently have actual physical or mental impairments that substantially limit one or more major life activities. The focus of

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this part is on the individual, to determine if he or she has a substantially limiting impairment.

__What is an _impairment? The phrase __physical or mental _impairment has been defined by the provision of the regulation cited on the left to include physiological conditions that affect body systems as well as mental or psychological disorders. Title II provides only representative examples of conditions, contagious and noncontagious diseases, or infections that would constitute physical or mental impairments; the list is not meant to be exhaustive. Some examples provided include: epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction, HIV disease (symptomatic or asymptomatic), tuberculosis, alcoholism, and orthopedic, visual, speech and hearing impairments.

__What is not an _impairment? Simple physical characteristics such as left-handedness, skin color, or age, or uncomplicated pregnancy do not constitute physical impairments and therefore cannot be considered disabilities under Title II. Similarly, disadvantages attributable to environmental, cultural, or economic factors are not the type of impairments covered by Title II. The definition also does not include common personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder. The ADA also excludes several other conditions. These are discussed later in this chapter.

28 C.F.R. ? 35.104(1)(i)

The phrase __physical or mental _impairment means--

(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine;

(B) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Examples: Are these conditions impairments?

3. Sophia, a high school senior, is the oldest of six children. Her mother, a single parent, cleans houses for a living, and barely makes enough money to feed and clothe the family. Sophia wants to go to college, and in order to do

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so she works long hours after school and on weekends at a fast-food restaurant to make money. Sophia's heavy work schedule interferes with her studies, but she feels she has no choice. Although Sophia's economic situation does put her at a disadvantage, it is not a mental or physical impairment.

__Substantial limitation of major life _activities. Another key concept under the first prong of the definition is that an impairment must substantially limit a major life activity to constitute a disability. The phrase _major _life _activities refers to functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, working, and learning [28 C.F.R. ? 35.104]. Note that __learning is considered a major life _activity.

If a student's impairment substantially limits his or her ability to learn, then that student has a disability under Title II of the ADA.

28 C.F.R. ? 35.104(2)

The phrase _major _life _activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

The above list of major life activities is not meant to be exhaustive. Specific activities that are equivalent to those listed in terms of their impact on, or importance to, an individual's life also may be considered major life activities. For example, other major life activities would include sitting, lifting, and reaching. Generally, there is little controversy about what constitutes a major life activity. They are understood to include "those basic activities that the average person in the general population can perform with little or no difficulty" [Appendix to 29 C.F.R. Part 1630, at 395 (1994)].

In contrast, determining whether or not an impairment _substantially _limits a major life activity is more difficult and must be done on an individual basis. To be considered a disability, an impairment must significantly restrict the performance of a major life activity in comparison to most people in terms of:

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limiting effect of the impairment. For instance, a person with a hearing impairment that severely limits his or her hearing is an individual with a disability, even if that person's hearing significantly improves when he or she wears a hearing aid.

Examples: Do these impairments substantially limit a major life activity?

1. Li is a third-grade student who had behavior problems and was a low achiever in first and second grades. In her current class, Li is easily distracted, frequently inattentive, and often disruptive. She generally fails to follow directions, and she has difficulty focusing on and completing tasks. Her academic performance overall is below grade level, and she is close to failing reading and math. Li's teacher referred her for evaluation by the school district's placement team. Li was diagnosed as having attention deficit disorder (ADD), which has an adverse impact on her ability to learn. Li has a disability under the ADA.

2. Greg is a third-grader who was generally well behaved and a good student in first and second grades. Although he often daydreams, shifts from one activity to another, and occasionally loses his work, Greg still manages to do well on his in-class and homework assignments. Because of his daydreaming and inattentiveness, his mother decided to have him evaluated by a private physician. The physician noted that Greg displays some behaviors similar to those of children with ADD, but on a more limited and less severe basis.

However, Greg's academic performance seems not to be significantly affected. Even if Greg does have ADD, he does not have a disability under the ADA, since his ability to learn is not substantially limited. Thus, there is insufficient justification for evaluating Greg for special education and related services.

3. Juan was injured in a traffic accident. His legs are permanently paralyzed. Juan is considered to be a person with a disability because he has a physical impairment that substantially limits the major life activity of walking.

4. Tom, a seventh-grade math teacher, has an allergy to certain tree pollens that makes him break out in hives if he is outside during certain times of the year. The hives are quite uncomfortable and make it hard for Tom to enjoy outdoor activities during pollen season. Although the hives are annoying and limit Tom's enjoyment of certain activities, Tom's allergy does not substantially limit any of his major life activities.

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5. Mei, a first-grade student, has severe asthma. During an asthma attack, Mei has great difficulty in breathing. She uses an inhalation spray and needs inhalation therapy three times a day. Mei has a disability because her asthma substantially limits her ability to breathe.

For the purpose of employment, it is critical to give special attention to what it means to be __substantially limited in the major life activity of _working. This phrase is understood to mean "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities" [29 C.F.R. ? 1630.2(j)(3)(i)]. It does not refer to the inability to perform only a particular job or a very specialized job, nor does it require the complete inability to work.

Factors to be considered in determining whether an employee or applicant is substantially limited in the major life activity of working include:

1. the type of job from which the individual has been disqualified because of the impairment;

2. the geographical area in which the person may reasonably be expected to find a job;

3. the number and types of jobs using training, knowledge, skills, or abilities similar to those required for the job from which the individual has been disqualified (the _class _of _jobs) within the geographical area; and

4. the number and types of jobs in the area that do _not involve similar training, knowledge, skills, or abilities from which the individual also is disqualified because of the impairment. (This factor spans a __broad range of jobs in various _classes) [29 C.F.R. ? 1630.2(j)(3)(ii)].

If an individual is substantially limited in any _other major life activity (e.g., walking or seeing) it is not necessary to determine whether the person is limited in the major life activity of working; he or she is already protected by the ADA as a person with a disability. Thus, an elementary school teacher who is blind is an individual with a disability because the blindness substantially limits his or her ability to see. For purposes of determining whether that teacher is an individual with a disability, it is not necessary to determine if the blindness substantially limits that teacher's ability to work.

Note that a person who is substantially limited in his or her ability to work must still be a "_qualified individual with a disability" in order to be covered by the ADA. (See Chapter Five,

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__Requirements for Employment Policies and _Practices, for a more detailed discussion of employment discrimination.)

Frequently, school systems must determine whether an individual with a temporary impairment is afforded the protections of Title II. While the definition of disability does not exclude temporary impairments, temporary impairments must be assessed on a case-by-case basis to determine whether the impairment substantially limits a major life activity. Therefore, the key factors to be considered in determining whether the impairment satisfies the first prong of the definition are, as discussed on [print] page 13, the _extent of the impairment, the _duration (or expected duration) of the impairment, and the _impact of the impairment.

Examples: Should these temporary impairments be considered a disability?

1. Nancy is a high school drama teacher who has laryngitis. It is very painful for her to speak, and she cannot talk above a whisper when she does speak. Her physician has prescribed medication for her, has instructed her to drink plenty of fluids, and has advised her to stay home from work. She should be fully recovered within three weeks. Nancy does not have a disability. Although the laryngitis significantly restricts her ability to speak, it does so only on a very short-term basis and has no long-lasting or permanent effects on Nancy.

2. Neil, an administrative assistant for a city school system, was in a skiing accident. He had a concussion, broke over 30 facial bones, and is temporarily paralyzed on his left side. Neil's injuries will require extensive long-term rehabilitation. His prognosis for recovery is very good. Although Neil is expected to fully recover, the duration of his condition is long term, or at least indefinite and unknowable. Thus, his condition is substantially limiting in severity and would constitute a disability under the law.

3. Abdul, a high school teacher, broke his leg in a skiing accident similar to Neil's. He sustained a compound fracture and must undergo surgery to set the bone. He is hospitalized for several days and will have a cast on his leg for an additional five weeks. During these weeks, Abdul must use crutches. Abdul's physician directed him to use crutches for another week after the cast is removed, after which time he will be able to walk unaided. His prognosis for a full recovery is excellent. Abdul does not have an impairment that substantially limits his major life activities. Although his leg injury has restricted his ability to walk, it has done so for a 

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relatively short time (six weeks). The injury is a transitory impairment that has no long-lasting or permanent effects.

4. Lisa and Beatrice, both school juniors, were in a car accident in which each sustained a head injury. Lisa felt dizzy and disoriented immediately after the accident and was hospitalized overnight for observation. Lisa's doctor told her that x-rays revealed a slight concussion but no permanent injury. Lisa was released from the hospital the next day and has experienced no side effects from the injury. Lisa's head injury was not substantially limiting. The impairment lasted for only a brief time and had no permanent or long-term impact on Lisa's major life activities. Lisa does not, therefore, have a disability. In contrast, Beatrice sustained a serious concussion that resulted in long-term brain damage. Because of this, Beatrice has a short-term memory deficit, has trouble processing information, cannot concentrate, and has great difficulty learning. Unlike Lisa, Beatrice's concussion resulted in long-term, significant restrictions on her major life activities. Therefore, Beatrice has a disability. 

Persons With Records of Physical or Mental Impairments

The second prong of the definition of disability under the ADA protects people who have a history or record of an impairment that substantially limits a major life activity. It also includes persons who have been misclassified as having an impairment.

Frequently, persons who fall under the first group are persons who have histories of mental or emotional illness, drug addiction, alcoholism, heart disease, or cancer. Persons who have been erroneously diagnosed as mentally retarded or mentally ill are also examples of persons protected by the second prong of the definition.

28 C.F.R. ? 35.104(3)

The phrase __has a record of _impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

Persons Regarded as Having a Disability

The third prong of the definition of disability under the ADA protects people who are not, in fact, substantially limited in any major life activity but are nevertheless perceived by others as having a disability, sometimes because of myth, fear, or stereotype.

This covers people who are falsely thought to have an impairment that substantially limits a major life activity. It also includes people who have an impairment that may or may not _in _itself actually limit a major life activity; that is, the impairment may have a limiting effect only because others falsely believe it does or take actions that restrict the individual because of such erroneous beliefs.

28 C.F.R. ? 35.104(4)

The phrase __is regarded as having an _impairment means--

(i) Has a physical or mental impairment that does not substantially limit major life activities, but that is treated by a public entity as constituting such a limitation;

(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or

(iii) Is treated by a public entity as having such an impairment.

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The second and third prongs of the definition are meant to cover situations where individuals never had or do not currently have disabilities, but are treated by others as if they did. For instance, a person with severe facial scarring might be denied a job because she or he is regarded as an individual with a disability. A person with a history of heart disease might be denied a promotion because of that "record of" a disability. These persons do not, in fact, have disabilities, but have been treated by others as if they did. It is mistaken perception or a record of a disability that entitles a person to protection against discrimination under the law.

Examples: Are these persons protected by the ADA?

1. Demika, a college graduate with a strong record, was hospitalized during her junior year in college for a mental illness.

She has fully recovered now, and is applying for a job as a teacher. Demika's history of mental illness is a record of a disability under the second prong of the definition, and the protections of the ADA are triggered if a school system denies her a job solely on the basis of her history of mental illness.

2. Terry is in the second grade. Her mother was recently diagnosed as HIV-positive, and the school principal mistakenly thinks Terry is also HIV-positive. In fact, Terry has tested negative for
the virus. The principal takes steps to separate Terry from the other children, such as making her eat lunch alone. Although Terry has no actual disability, she is protected under the third prong of the definition, since she is regarded as having a disability.

3. Chris, a fourth-grade teacher, participated in a gay rights march in Washington. The principal learns of this, and assumes Chris is gay and that he must have AIDS. The principal tries to fire Chris. Chris, who does not have AIDS, is nonetheless protected under the third prong of the definition, since he is regarded as having a disability.

4. Brian, a third-grade student, was born with one leg shorter than the other and walks with a limp. Although the limp is a physical impairment, it does not substantially limit his ability to walk. School personnel, however, regard Brian's limp as a disability and have restricted his participation in physical education and sports out of concern he will be injured. Brian is covered by the third prong of the definition of disability.

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Use of the Second and Third Prongs

The use of the second and third prongs of the definition of individuals with disabilities arises often in the area of employment.

For example, someone with a history of mental illness but no current symptoms might be denied a teaching job based solely on that record of past disability. This action would not be permissible under the

ADA.

The second and third prongs also apply to discrimination against students. Elementary and secondary students may be falsely perceived to have a disability or may experience discrimination because of a record of a past disability. For instance, the second-grade student Terry, in the previous set of examples, was falsely perceived as being HIV-positive and was forced to eat her lunch alone. The general nondiscrimination provisions of the ADA apply to students who are regarded as having a disability or who have a history of a disability.

However, the second and third prongs of the definition _cannot be used to determine whether an elementary or secondary student needs either special education and/or related services or regular education with supplementary services. (See Chapter Four, __General _Nondiscrimination _Requirements, for a discussion of a school district's obligation under Title II of the ADA to provide a free appropriate public education (FAPE) to students with disabilities.) A student with a record of a past disability who does not have a current disability, or a student who is falsely believed to have a current disability, does not actually have a substantially limiting mental or physical impairment. Consequently, such a student has no need for different educational treatment because of a disability.

Thus, a student who falls under the second or third prong of the definition, and who does not also fall under the first prong of the definition, is not entitled either to special education and/or related services or to regular education with supplementary services. 

This misunderstanding of the purpose and intent of the second and third prongs of the definition has caused some confusion on the part of both parents and schools as to when a child is entitled to the protections of the law with respect to triggering evaluation and placement responsibilities. This confusion frequently arises with respect to students who have attention deficit disorder. The discussion below addresses this confusion.

Many school districts have recognized that some children with ADD are eligible for an evaluation and/or related aids and services under Title II and Section 504 because these children fall under the first prong of the definition of disability--that is, they actually have a mental or physical impairment that substantially limits their ability to learn. For example, Li, the third-grade student in an example cited earlier in this chapter (see [print] page 14)

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is a child with ADD who falls under the first prong of the definition. (See Chapter Four, __General _Nondiscrimination _Requirements, for a discussion of evaluation and related aids and services.)

In some instances, however, school districts have inappropriately looked to the second and third prongs of the definition of disability as the basis for this eligibility. For example, some education officials and parents have the misperception that if the child "has a record of" an impairment (an evaluation of ADD by a private consultant, for example) or "is regarded" by someone (the child's doctor or the child's mother, for example) as having a disability, that automatically triggers the requirement for an evaluation and/or related aids and services.

__The fact that someone believes that a child has a disability does not mean that the child is entitled to an evaluation and/or related aids and _services. In such a case, the proper inquiry by the school district receiving this information is whether or not there is sufficient reason to believe that this child, because of a disability, may need special education or related aids and services, and thus would need to be evaluated. Therefore, in the case of Greg, the third-grade student whose doctor diagnosed ADD 

(see [print] page 14), 
the school district need not automatically evaluate Greg. 

Rather, the school district must determine whether there is sufficient reason to believe that Greg needs special education or related aids and services. If the school district determines that Greg does not need to be evaluated, his parents may request a due process hearing with regard to that determination. (See Chapter Four, _General _Nondiscrimination _Requirements.)

WHAT DOES IT MEAN TO BE QUALIFIED?

Protection under Title II is specifically afforded to _qualified individuals with disabilities. Not every person with a disability (someone who falls within the three-prong definition) is also qualified. However, as explained below, nearly all elementary and secondary students with disabilities are "qualified individuals with disabilities" for the purpose of receiving a free appropriate public education.

The definition of a qualified individual with a disability takes two forms, depending on the nature of the Title II activity involved. These include:

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Services and Programs

For purposes of determining whether an individual is eligible to participate in the services and programs offered by a public entity, a person is considered to be qualified if the individual meets the essential eligibility requirements needed to receive those services or participate in those programs. It does not matter whether the person meets these requirements with or without reasonable modifications to rules, policies, or practices or with or without the removal of architectural, communication, or transportation barriers. 

The determination is also made without regard to whether auxiliary aids and services must be provided [28 C.F.R. ? 35.104].

28 C.F.R. ? 35.104

__Qualified individual with a _disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

When determining whether a student with a disability meets the essential eligibility requirements needed to receive the services of, and/or participate in, an elementary and secondary education program, public school districts must use the more specific definition established under Section 504. This is because, as explained in Chapter One, Title II incorporates the more specific standards of Section 504.

Section 504 uses specific and separate definitions of what "qualified" means in the context of employment, in the context of elementary and secondary education, and in the context of post-secondary education. Under Section 504, a qualified student with a disability, with regard to elementary and secondary educational services, is defined as: 

There is no need to look any further or to try to determine if the student meets essential eligibility requirements in order to receive the services or participate in the programs. Age alone makes the student qualified.

Note that the Section 504 definition of "qualified" discussed above mentions the IDEA, which provides financial aid to states to assist in their efforts to ensure appropriate educational services for children with disabilities. There are some differences between the IDEA on one hand and Section 504 and Title II on

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the other. For example, Title II and Section 504 use the three-pronged definition of disability spelled out earlier in this chapter. The IDEA, however, applies to students who have one of the specific physical, mental, emotional, or sensory impairments listed as the thirteen recognized disability categories under the IDEA and who have been found to need special education and related services.

This difference in definition means that there may be students who qualify for regular or special education and related aids and services under Section 504/Title II but who do not have one of the thirteen disabilities recognized by the IDEA.

This Guide will not address in more detail the differences between the IDEA and Section 504/Title II. For more information on the IDEA, contact the Office of Special Education and Rehabilitative Services in the United States Department of Education. (See _Resources.)

In summary, then, for purposes of Title II of the ADA, any student with a disability who is of the appropriate age is qualified to receive the services of, and participate in, the district's elementary and secondary education program. 

Example: Is this child a qualified individual with a disability?

Vincent is a twelve-year-old boy with severe mental retardation. His physical impairment substantially limits his ability to learn. The law in the state in which Vincent lives requires that children between the ages of six and sixteen attend school. Vincent is a qualified individual with a disability, since he has a disability and he is of an age during which nondisabled persons are provided education. As a qualified individual with a disability, Vincent is entitled to a free  appropriate public education.

It is also important to note that persons invited to attend school events, and persons attending school events open to the public, are qualified individuals with disabilities and are covered by the ADA. This means that when schools hold parent-teacher conferences, school plays, athletic events, graduation ceremonies, or other events, parents and other associates of students involved in these activities who have disabilities are entitled to attend these events, and these events must be accessible to them. Public school systems must ensure program accessibility for these individuals with disabilities and must provide appropriate auxiliary aids and services whenever necessary to ensure effective communication. (See Chapter Six, _Program _Accessibility, and Chapter Seven, __Requirements for Effective _Communication, for a discussion of these issues.)

Similarly, events open to the general public must be accessible to members of the general public who have disabilities and wish to attend the events.

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Example: Is this parent a qualified individual with a disability?

Jacob's son Moshe is in the sixth grade, and Moshe's teacher has scheduled a parent-teacher conference with Jacob at the end of the month. Jacob, who is deaf, informs the teacher that he will need an interpreter to participate in the conference. The school district must provide an interpreter or an equally effective means of communication for the parent-teacher conference.

Employment

For the purposes of employment, an individual is considered to be qualified if the person meets the job-related requirements for a job and is able to perform its essential functions with or without reasonable accommodations [29 C.F.R. ? 1630.2(m).] (For more information on the employment of qualified individuals with disabilities, see Chapter Five, __Requirements for Employment Policies and _Practices.)

Example: Is this employee a qualified individual with a disability?

Minh, a school principal, is blind. She has the graduate degrees and work experience required for her job. With reasonable accommodation, such as Brailled materials, she is able to perform the essential functions of her job. Minh's blindness substantially limits her sight and therefore is a disability. Minh is a qualified individual with a disability because she meets the job-related requirements for her job and is able to perform its essential functions with reasonable accommodation.

ASSOCIATIONAL DISCRIMINATION

Title II also extends its protections to people who do not have disabilities themselves but are discriminated against on the basis of their association with a person with a disability. The association can be with family members, friends, or any other person or entity [28 C.F.R. ? 35.130(g); 29 C.F.R. ? 1630.8].

28 C.F.R. ? 35.130(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

Examples: Is this discrimination on the basis of association?

1. A school district has a policy of allowing local neighborhood theater groups to use the high school auditorium during the summer. District officials learn that one of the members of a particular theater group has AIDS. Based on this information, they refuse to let any members of the group use the school's facilities.

All of the

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members of the theater group are entitled to protection under the ADA. The members of the group who do not actually have AIDS themselves are covered because of their association with the individual with AIDS.

2. Maria, a single parent, is denied a secretarial position at a public school administrative office because the school superintendent is aware that she has a child with cerebral palsy. The superintendent is concerned that her attendance will be unreliable because of the needs of her child. Maria is protected under the ADA.

A person who experiences associational discrimination has a right to relief under the ADA, but is not, like persons who themselves have disabilities, entitled to request reasonable accommodations in employment. In this case, Maria would not be entitled under the ADA to alter her work hours or performance to enable her to care for her child [Appendix to 29 C.F.R. Part 1630, at 406 (1994)].

RETALIATION OR COERCION

A school district may not retaliate against or coerce any individual because that individual took action to oppose any act or practice prohibited by Title II, or because that individual assisted or encouraged others in exercising their rights under Title II. Prohibited actions include threats, intimidation, harassment, or interference. With respect to investigations, proceedings, or hearings under the ADA, the protection against retaliation applies to individuals who file complaints as well as to those who testify or otherwise assist in connection with the investigation, proceeding, or hearing [ 28 C.F.R. ? 35.134; 29 C.F.R. ? 1630.12].

28 C.F.R. ? 35.134 Retaliation or coercion.

(a) No private or public entity shall discriminate against any individual because that individual has opposed any act or practice made unlawful by this part, or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Act or this part.

(b) No private or public entity shall coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on an account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by the Act or this part.

Example: Is this teacher's action retaliation?

A student with asthma testified at a grievance hearing that the coach of the track team pressured her to drop off the team because of her disability. Two of the student's teammates who do not have a disability testified at the grievance hearing on behalf of the student with asthma. The track coach was also the algebra teacher for these three students. After the grievance hearing, in his capacity as algebra teacher, the coach/teacher informed the three students that extra problems they had submitted for extra credit were not submitted in time. However, other students in the same class submitted, and received extra credit for, extra problems that were submitted even later. The evidence suggests that the teacher has retaliated against the students in violation of Title II.

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Regardless of the outcome of a grievance hearing, Title II protects from retaliation both the individual with a disability who filed a grievance to protect his or her rights and any witnesses who participated in the grievance hearing on his or her behalf. The school district is responsible under Title II for ensuring that such individuals are not retaliated against, and, in the example above, for remedying fully the retaliatory actions that were taken against the three individuals.

EXCLUSIONS FROM ADA PROTECTION

A Direct Threat to Health or Safety

One factor to be considered in determining whether a person is a qualified individual with a disability is the health or safety of others. Under the ADA, if an individual with a disability poses a _direct _threat to the health or safety of others, then that person is not a qualified individual with a disability. Such a person has not met an essential eligibility requirement for the receipt of services or participation in programs or activities of a public entity.

The concept of direct threat to health or safety is more complicated in the context of elementary and secondary education, since all students with disabilities are qualified to receive educational services if they are of a certain age. If a student's threatening actions are a behavioral manifestation of a disability, that student is still qualified to receive educational services, and the school district may not simply refuse to educate the student. However, the school district may decide that the student who poses a direct threat to the health or safety of others needs a more restrictive placement. The school district's decision is subject to the evaluation and placement requirements outlined in Chapter Four, _General _Nondiscrimination _Requirements.

In the employment context, the employer may raise concerns about direct threats to the health or safety of the individual with a disability, as well as to the health or safety of others, as a defense to a charge of discrimination [29 C.F.R. ? 1630.15(b)(2)]. (See the discussion in Chapter Five, __Requirements for Employment Practices and _Policies, for more information.)

The determination that an individual with a disability poses a direct threat to the health or safety of the individual or of others may not be based on stereotypes. The decision must be based on an individualized assessment of the person's present condition, not on speculation about any future risk. It must also be based on reasonable judgment founded on medical evidence or on the best available objective evidence. Factors to be considered in determining whether a particular individual poses a direct threat to health and safety include:

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-- the duration, nature, and severity of the potential harm;

Examples: Do these individuals pose a "direct threat to health and safety"?

1. Satchan, who has limited hearing and uses a hearing aid, has applied to be a bus driver. Without reviewing any of Satchan's medical records, the school district decides not to hire Satchan because of his hearing disability, reasoning that Satchan's hearing impairment would interfere with his ability to safely drive the bus and thus would pose a direct threat to his own safety and the safety of the school children on the bus. In fact, the medical records show that Satchan's hearing, with the hearing aid, is quite good and would _not interfere with his ability to drive the bus safely.

Furthermore, in a previous job as a bus driver for another school district, Satchan always carried a spare hearing aid. Thus, the likelihood that he would be forced to drive without a hearing aid as a result of technical failure of an aid is remote. Satchan would not pose a direct threat to the health or safety of himself or others by driving the bus. The school district's actions violate the ADA.

2. Abby is in the seventh grade. She has been diagnosed as having a multiple personality disorder. One of her personalities has violent tendencies. While in this particular personality, Abby threatened her teacher and classmates with a sharp knife being used for a crafts project. Abby's actions pose a direct threat to the safety of others, since the incident that has already occurred suggests serious harm could well occur. It is not practical to remove such harmful objects as scissors from her reach at all times. Nevertheless, Abby is still qualified to receive educational services, since the threatening actions were a behavioral manifestation of Abby's disability. The school district must still provide Abby with FAPE. However, the school district need not keep Abby in the same classroom if a more restrictive placement is appropriate and satisfies the evaluation and placement requirements outlined in Chapter Four, _General _Nondiscrimination _Requirements.

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Conditions Not Considered Disabilities

Title II explicitly excludes the following conditions from the term disability: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from the current illegal use of drugs. Moreover, the phrase "physical or mental impairment" does not include homosexuality or bisexuality; those orientations are not considered disabilities under the ADA [28 C.F.R. ? 35.104].

Individuals with the above-referenced conditions or orientations are not entitled to protection under the ADA based solely on these conditions. However, where these individuals also have physical or mental conditions that do constitute disabilities under the ADA, they may not be discriminated against on the basis of the covered disability. Furthermore, they would be protected under the ADA if they were discriminated against on the basis of their association with a person with a disability.

Examples: Are these individuals included under the ADA's definition of disability?

1. Sandra is a sixth-grade student who recently enrolled in a new school. Since she has been in the school, Sandra has been caught stealing many articles of clothing from her classmates and equipment in her classroom. She is diagnosed as having kleptomania.

Kleptomania is not a disability under the ADA.

2. Ken, a high school sophomore, has made a series of obscene, threatening phone calls to female students at the school. School officials discover this and suspend Ken for three weeks. Ken claims that his behavior is attributable to a sexual behavior disorder. Ken is not entitled to protection under the ADA because the school district's actions were not taken on the basis of a covered disability.

Illegal Use of Drugs Not Protected

Although an individual addicted to drugs may be an individual with a disability, persons who are _currently engaging in the illegal use of drugs are not protected by the ADA. Thus, a school district may withhold services or benefits from a person because of his or her current illegal use of drugs. By contrast, a person with a history of drug use who has been successfully rehabilitated, or someone who is participating in a drug rehabilitation program and is _not currently using drugs illegally, is protected.

28 C.F.R. ? 35.131 Illegal use of drugs.

(a) _General. (1) Except as provided in paragraph (b) of this section, this part does not prohibit discrimination against an individual based on that individual's current illegal use of drugs.

(2) A public entity shall not discriminate on the basis of illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who--

(i) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;

(ii) Is participating in a supervised rehabilitation program;

or

(iii) Is erroneously regarded as engaging in such use.

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Title II distinguishes between the illegal and legal use of drugs. The term "illegal use of drugs" refers to drugs whose possession or distribution is unlawful under the Controlled Substances Act. It does not include the use of a drug taken under supervision of a physician or other licensed health care professional, and other uses allowed by law are protected. However, unlawful use of prescription controlled substances is considered illegal use of drugs [28 C.F.R. ? 35.104; 28 C.F.R. ? 35.131].

Examples: Are these individuals excluded from ADA protection

because of current illegal drug use?

Example: Does this disciplinary action violate the ADA?

Olga, Christine, and Lina are all juniors in high school. Olga has a drug addiction, Christine has a learning disability, and Lina has no disabilities. A hall monitor finds Olga, Christine, and Lina in the bathroom, smoking marijuana. The principal suspends all three students. The principal's actions do not violate either the ADA or Section 504.

Note, however, that if Christine is eligible for services under the Individuals with Disabilities Education Act (IDEA) because of her learning disability (see [print] pages 21-22), she could

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be suspended only if doing so would be permissible under the requirements for student discipline that are applicable to IDEA-eligible students. In addition, under the IDEA, educational services must continue during the period of disciplinary removal for IDEA-eligible students.

Use of Alcohol

Alcoholism can be a disability covered by the ADA. If a person's alcoholism substantially limits a major life activity, that person has a disability under the ADA. Title II does not specifically address the issue of alcoholism in students. As noted above, though, the ADA statute did amend Section 504 of the Rehabilitation Act to allow local education agencies to discipline students with disabilities for the use of alcohol to the same extent that students without disabilities who use alcohol are disciplined. Employers may prohibit the use of alcohol by all employees at the workplace and may hold an alcoholic employee to the same performance and conduct standards that apply to all employees [29 C.F.R. ? 1630.16(b)].

Examples: Can these alcoholics be disciplined under the ADA?

A person does _not have to be a United States citizen to be covered by Title II of the ADA. There are no citizenship requirements in Title II.

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