FEB 28 1996

The Honorable David L. Hobson

U.S. House of Representatives
1514 Longworth HOB
Washington, D.C. 20515

Dear Congressman Hobson:

I am responding to your letter on behalf of your

constituent, Mr. Roger Bloomfield, regarding the application of
the Americans with Disabilities Act (ADA) to the use of alcohol
and drugs by college students. The response to your letter was
delayed because of the Federal shutdown. I apologize for any
inconvenience to your constituent.

Mr. Bloomfield's letter asks about the protections afforded

to students using alcohol or illegal drugs in the context of the
college admissions process. Mr. Bloomfield's question arises
from the suggestion that users of alcohol or illegal drugs be
excluded from admission to colleges or universities.

Colleges and universities may be covered by either title II

or title III of the ADA. Title II covers publicly owned or
operated schools, while title III covers private schools. Both
title II and title III prohibit discrimination on the basis of
disability by covered entities. Therefore, a covered entity
generally may not rely upon an individual's disability as a basis
for excluding that individual from participating in the entity's
programs or services.

Mere casual use of alcohol or illegal drugs does not

constitute a disability within the protection of the ADA.
Therefore, a college or university may refuse admission to casual
users of drugs or alcohol without violating the ADA. In
addition, in enacting the ADA, Congress chose specifically to
exempt from civil rights protection drug addicts who are
currently engaged in the illegal use of drugs. Therefore, a
college or university may exclude such current illegal drug users
from its programs.

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However, in order to encourage individuals with chemical

dependencies to pursue rehabilitation and recovery, Congress
chose to provide ADA protection to individuals with a history of
drug dependency who have successfully completed a drug
rehabilitation program, who are currently participating in such a
program, or who, through their own efforts, are no longer
engaging in the illegal use of drugs. Therefore, a college or
university may not categorically exclude applicants on the basis
of their former drug dependency.

Congress did not exclude alcohol dependency from coverage

under the ADA. Therefore, individuals who are dependent on
alcohol may not be excluded simply on the basis of their status
as alcoholics. They may, however, be held to the same standards
of conduct that other participants must meet, e.g., behavior
standards, academic standards. Therefore, a college or
university may prohibit drinking or drunkenness, as long as the
prohibition applies to all students, not just those who are or
were dependent on alcohol.

I have enclosed, for your information, two copies of the

Department's regulations implementing titles II and III of the
ADA, as well as one copy of each of the Technical Assistance
Manuals for titles II and III. Additional information regarding
the application of title II of the ADA to educational
institutions may be obtained by contacting the Department of
Education at (202) 205-5413 (Voice), (800) 358-8247 (TDD). I
hope this information is helpful to you in responding to your
constituent.

Sincerely,

Deval L. Patrick
Assistant Attorney General
Civil Rights Division
Enclosures
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October 14, 1995

The Honorable David L. Hobson

1514 Longworth HOB
Washington, D.C. 20515

Dear David:

At a recent conference, Legal Issues in Higher Education, sponsored by

the University of Vermont, I participated in a discussion concerning how an
institution might screen alcohol abusers during the admissions process in an
attempt to reduce the growing number of sexual assault and other incidents on
campus that seem to coexist with alcohol abuse. One of my colleagues contended
that one needed to be cautious about such screening since a student impaired
by alcohol could claim protection under the Americans with Diabilities Act. It
struck me as inappropriate, and almost ridiculous, that anyone under age 21
could claim alcohol as a disability since it is unlawful for those under age
21 to consume alcohol. The same could be said of other controlled and drug
substances that are abused.

Consequently, I am prompted to write to you to ask you to consider

whether federal legislation amending the ADA would be in order to make it
clear that one cannot claim the Act's protection for any disability that is
caused by the person's having engaged in an illegal activity.

Because this matter is related to the illegal use of alcohol, perhaps

Mike DeWine would be interested in considering this point. There is no
particular urgency to this matter, and in view of the other items on your
current agenda, I would not expect any response until it is convenient for
you.

Susan and I send our best to you and Carolyn.

Cordially,
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