Improving College for Students with Intellectual Disability through Regulations and Guidance

It is important for advocates to understand the opportunity that commenting on federal regulations and guidance provides. It can be a perfect time to speak up to effect positive change for students with intellectual disability (ID) attending college.

The Higher Education Act (HEA) was amended in 2008 to remove barriers to access federal financial aid for students with ID and to authorize model programs called Transition and Postsecondary Education Programs for Students with ID (TPSIDs). It also funded a national coordinating center that was awarded to Think College.

After the HEA passed, I served on a committee that worked with the U.S. Department of Education (ED) to develop the regulations to implement the HEA. We addressed many critical topics, such as detailing how to document that a student has an ID. Federal departments and agencies develop regulations to define how laws will be implemented and enforced and are legally binding.

How Guidance and Public Comment Makes a Difference

Over $70 million has been invested in inclusive higher education programs for students with ID with outstanding results – students are obtaining jobs and living more independently in the community after graduation. At the same time, paying for these college programs is a struggle for many students and their families. To address this issue, An Inclusive Higher Education Committee report urged ED to issue new guidance clarifying that federal special education and vocational rehabilitation (VR) funds may be used to support postsecondary students with ID. A letter supporting these recommendations signed by 70 organizations, and significant advocacy, resulted in new ED guidance that clarified that VR funds may be used for this purpose. While more needs to be done to ensure that the guidance is followed in all states, many more students are now able to access VR funds due to this advocacy and improved guidance. Guidance documents are not legally binding like laws and regulations. However, guidance explains how the federal department or agency will apply the laws and regulations and often provides important information in language that is easier to understand than the underlying laws and regulations.

Section 504 of the Rehabilitation Act Regulations

Section 504 of the Rehabilitation Act of 1973, is a landmark civil rights law that prohibits discrimination on the basis of disability in all programs or activities that receive Federal financial assistance.  Recently Think College and the National Down Syndrome Congress (NDSC) collaborated to submit public comments to ED, co-signed by other national organizations, calling on ED to revise the Section 504 regulations to protect the rights of postsecondary students with ID. ED is gathering public input on how to update the regulations that implement Section 504. This is the first time the Section 504 regulations will be revised since they were published 45 years ago, so it was very important that advocates for students with ID took this opportunity to impact how the new regulations will be written.

Currently some colleges and universities provide disability accommodations, services, and supports to students in inclusive postsecondary programs (IPSE) and others do not. The joint public comments make several recommendations, including clarifying that students with ID in higher education may access all rights and services under Section 504, and clarifying that refusal to consider admitting a student who has a legal guardian is a violation of Section 504.

Title IX Regulations

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs and activities that receive federal financial assistance. Think College and NDSC also collaborated on submitting public comments to ED on proposed changes to the regulations that implement Title IX. In our comments, we highlight challenges that students with ID in college programs often face if charged with a Title IX infraction or when needing to file a charge. The joint comments recommend changes to Title IX that would allow a student to have assistance from someone in an advisory role throughout the process. We also recommend that the Title IX Coordinator be permitted to consult with program staff, so that the staff may be of assistance to the student, if the student wants assistance. We also recommend that any auxiliary aids or other reasonable accommodations be provided to the student.

As opportunities for inclusive higher education expand, the Section 504 and Title IX regulations must be improved to meet the needs of these students. The Department is required to consider each comment submitted as part of the regulatory process. These recommendations, if accepted, would protect the rights of postsecondary students with ID and improve educational opportunities. Regulations and guidance may seem wonky and very “in the weeds”. However, they can have a significant positive or negative impact so it is vitally important to look for opportunities to speak up and to submit comments.

About the post author: Stephanie Smith Lee is the Senior Policy Advisor for the National Down Syndrome Congress and chaired the Accreditation Workgroup from 2011 to 2020. She is a national disability expert who has served in senior Congressional staff positions, as Director of the U.S Office of Special Education Programs, and Chair of the Inclusive Higher Education Committee that successfully advocated with Congress to include provisions for postsecondary students with intellectual disability in the Higher Education Act. Since her daughter Laura was born with Down syndrome in 1982, she has led many successful advocacy efforts at the local, state and national levels.