[Code of Federal Regulations]
[Title 45, Volume 3]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1170.42]

[Page 512-513]
 
                        TITLE 45--PUBLIC WELFARE
 
     CHAPTER XI--NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
 
PART 1170--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS AND ACTIVITIES--Table of Contents
 
                   Subpart E--Postsecondary Education
 
Sec. 1170.42  Admissions and recruitment.

    (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

[[Page 513]]

    (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 Chairman 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 Sec. 1170.52(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 
Sec. 1170.52(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.