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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5720

June 13, 1980

COLLEGES AND UNIVERSITIES:

Application for admission by a handicapper

FEDERAL AID:

Qualified handicapped individual's admission to an institution of higher learning

HANDICAPPERS CIVIL RIGHTS ACT:

Admission of handicapper to a community college, a college or a university

A post-secondary educational institution receiving federal funds may require medical statement concerning an applicant's physical or mental capacity to meet any of the institution's requirements for admission to or participation in an educational program.

Mr. C. Patrick Babcock

Director

Department of Labor

309 North Washington

P. O. Box 30015

Lansing, MI 48909

You have requested my opinion on the following question:

May a university, college or a community college require a medical statement from a person applying for admission as a student without violating 29 USC 794 and 45 CFR, Sec. 84.423?

OAG, 1979-1980, No 5487, p ___ (May 1, 1979), concluded that a requirement by a post-secondary educational institution that an applicant for admission provide a medical statement as to the applicant's physical or mental capacity to utilize or benefit from the educational opportunities offered by the educational institution does not violate the Michigan Handicappers' Civil Rights Act, 1976 PA 220; MCLA 37.1101 et seq; MSA 3.550(101) et seq.

In the Rehabilitation Act of 1973, Sec. 504; 87 Stat 394; 29 USC 794, Congress has provided:

'No otherwise qualified handicapped individual in the United States, as defined in section 706(6) . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .'

45 CFR, Sec. 84.42, provides:

'(a) General. Qualified handicapped persons may not, on the basis of handicap, be denied admission or be subjected to discrimination in admission or recruitment by a recipient to which this subpart applies.

'(b) Admissions. In administering its admission policies, a recipient to which this subpart applies:

(4) Except as provided in paragraph (c) of this section, [not here relevant] may not make preadmission inquiry as to whether an applicant for admission is a handicapped person but, after admission, may make inquiries on a confidential basis as to handicaps that may require accommodation. . . .' (emphasis added)

Based upon the plain language of the administrative regulation quoted above, it is clear that a post-secondary educational institution receiving federal funds may not make a preadmission inquiry as to whether an applicant is handicapped. However, a postsecondary educational institution is not precluded from inquiring as to whether an applicant meets its requirements for admission and participation in the educational program in question.

In Southeastern Community College v Davis, ---- US ----; 99 S Ct 2361; 60 L Ed 2d 980 (1979), a unanimous Supreme Court ruled that a community college denying a person with a serious hearing disability admission to a nursing program did not violate the Rehabilitation Act of 1973, Sec. 504, supra, and its implementing regulations. The denial of admission was based largely upon the report of an audiologist that had examined the applicant. In reaching its decision, the Court stressed that under 29 USC 794 an otherwise qualified handicapped individual is a person who meets all of a program's requirements in spite of his handicap. The Court emphasized this as set forth in 45 CFR, Sec. 84. (3)(k)(3), a handicapped person must meet all academic and physical qualifications required for admission to or participation in the institution's educational program.

In light of this authoritative construction of 29 USC 794 and its implementing regulations, 45 CFR, supra, it is my opinion that post-secondary educational institutions receiving federal funds may require medical statements concerning an applicant's physical or mental capacity to meet any of the institution's requirements for admission to or participation in an educational program.

Frank J. Kelley

Attorney General


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