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DJ XXXXXXXXX III-1.5000 III-1.5100 III-1.5200

March 4, 1996

Mr. Ty D. Laurie Schiff Hardin & Waite 7200 Sears Tower Chicago, Illinois 60606-6473 Re: DJ XXXXXXXXX Providence-St. Mel School Chicago, Illinois Dear Mr. Laurie: This letter is in further reference to the above-referenced complaint alleging failure by the Providence-St. Mel School to comply with title III of the Americans with Disabilities Act ("ADA"), and the claim that the Providence-St. Mel School ("School") is a "religious organization" or an "entity controlled by a religious organization" within the meaning of section 307 of the ADA, 42 U.S.C. 12187, and therefore exempt from coverage under title III of the ADA. This letter serves to inform you of our conclusion that the School is not entitled to an exemption under title III of the ADA. After a comprehensive review of the information submitted in response to several inquiries, the Disability Rights Section has determined that the School does not qualify as a "religious organization" or "an entity controlled by a religious organization." In our view, the School is primarily a secular educational institution, rather than a religious one. We have considered a variety of factors in reaching our decision that the School is primarily a secular educational institution. While the School may be organized, in part, for

religious purposes, those characteristics, per se, do not make a private school a "religious organization" within the meaning of title III of the ADA. The School is not in any manner owned, operated or controlled by a particular religious organization. The School is incorporated as an ordinary non-profit corporation. There is no predominant religious aspect to the membership of the board of trustees, the independent organization that runs the School. The board of trustees is composed primarily of people in private enterprise and other lay persons and its members elect other members to the board. Neither the trustees nor the officers of the board are required to be Catholic or members of any other religion. The principal is not a member of a religious order as was the case prior to 1978 and most of the current teachers are lay persons. The faculty and staff are not required to be members of a particular religious faith and they are not they required to espouse or certify their belief in a particular religious faith, although they sign an employment contract acknowledging that the primary purpose of the School is to "establish a Christian working atmosphere . . . in order to provide quality Catholic education." The School admittedly serves a community that is not primarily Catholic and its students are not required to be Catholic in order to attend the School. Although the School has not provided requested data regarding the religious composition of the student body, it would appear that the majority of students are not Catholic. While some of the student activities involve religious activities, most of the student activities are secular in nature. In addition, prior to 1978, the School clearly was engaged in educating children in a particular religion and was controlled and operated by the Catholic Archdiocese. But the information provided by the School indicates that the curriculum of the School gradually has changed. Among other things, the content of its religious education program has expanded to include other religious doctrine. Rather than focusing on furthering the mission of the Catholic Church or propagating that particular religious faith, the School's present religious curriculum is geared toward an appreciation of a range of religious beliefs and comparative religious studies. The School also has failed to support its claim that it is an "entity controlled by a religious organization" within the meaning of title III of the ADA and the requirements promulgated by the U.S. Department of Education to enforce title IX. See our August 23, 1993 letter. In particular, the School has failed to

show that it requires its faculty, students, or employees "to be members of, or otherwise espouse a personal belief in, the religion of the organization by which it claims to be controlled." As noted above, there is no requirement that the trustees, faculty, staff, or students be Catholic; nor is there a requirement that those persons espouse a belief in the Catholic religion. Finally, tracking some language in the ADA Title III Technical Assistance Manual, the School has claimed that it is exempt because it is a "parochial school" that is "sponsored" by a religious order, The Sisters of Providence. However, the evidence indicates that the Sisters of Providence have had virtually no control over the operation and management of the School since 1978, although some of its nuns continue to be employed as teachers or support staff. Absent any indication that the School is actually sponsored and controlled by a Sisters of Providence, the School's reliance on the title III Technical Assistance Manual is misplaced. The test is whether the religious order actually controls the operations of the School, not whether the religious order authorizes some of its members to teach at the School. Therefore, you are requested to provide the information that we requested in our letter of July 1, 1993, concerning the School's decision not to admit Ms. XXXXXX as a student. Please forward your response by __________________ 1996. If you have any questions concerning this matter, please call me at (202) 307-6309. Sincerely,

Sheila K. Delaney Attorney Disability Rights Section

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