34 C.F.R. § 104.42

Admissions and recruitment

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(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:

(1) May not apply limitations upon the number or proportion of handicapped persons who may be admitted;

(2) May not make use of any test or criterion for admission that has a disproportionate, adverse effect on handicapped persons or any class of handicapped persons unless (i) the test or criterion, as used by the recipient, has been validated as a predictor of success in the education program or activity in question and (ii) alternate tests or criteria that have a less disproportionate, adverse effect are not shown by the Assistant Secretary to be available.

(3) Shall assure itself that (i) admissions tests are selected and administered so as best to ensure that, when a test is administered to an applicant who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the applicant's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure); (ii) admissions tests that are designed for persons with impaired sensory, manual, or speaking skills are offered as often and in as timely a manner as are other admissions tests; and (iii) admissions tests are administered in facilities that, on the whole, are accessible to handicapped persons; and

(4) Except as provided in paragraph (c) of this section, 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.

(c) Preadmission inquiry exception. When a recipient is taking remedial action to correct the effects of past discrimination pursuant to § 104.6(a) or when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity pursuant to § 104.6(b), the recipient may invite applicants for admission to indicate whether and to what extent they are handicapped, Provided, That:

(1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary action efforts; and

(2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part.

(d) Validity studies. For the purpose of paragraph (b)(2) of this section, a recipient may base prediction equations on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the education program or activity in question in order to monitor the general validity of the test scores.

Notes of Decisions

Cited in 3 cases (1 in the last 5 years), 1993–2021 · leading case: Jones v. Nat'l Conf. of Bar Examiners, 801 F. Supp. 2d 270 (D. Vt. 2011).

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Jones v. Nat'l Conf. of Bar Examiners, 801 F. Supp. 2d 270 (D. Vt. 2011). “B at 715 (2009) (referring to 34 C.F.R. § 104.42 (b)(3)). Similarly, Section 12112(b)(7) of Title I of the ADA requires that tests "concerning employment” be selected and administered “in the most effective manner to ensure” that the test reflects the disabled job applicants’ or…”

Halasz v. Univ. of New England, 816 F. Supp. 37 (D. Me. 1993). · cites it 3× “Plaintiff also complains that UNE violated 34 C.F.R. § 104.42 (b)(4) which provides that in administering its admissions policies, a recipient of federal financial aid “may not make preadmission inquiry as to whether an applicant for admission is a handicapped person, but after…”

Rebekah Breyer v. Pac. Univ. (9th Cir. 2021). “See 34 C.F.R. § 104.42 (b)(4). Inquiries about an applicant’s functional limitations are permissible because they address whether a person is qualified for a program.”

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