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8/2/93 DJ 204-012-00032 AUG 27 1993

Ms. Sonja D. Kerr Attorney at Law 3421 Kent Street Shoreview, Minnesota 55126 Dear Ms. Kerr: This letter responds to your letter requesting a copy of the "new school board accessibility standards under the ADA when they are published." In addition, you seek our assistance on the application of title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 55 SS 12131-12134, to a public school district's responsibilities to provide program access. In particular, you seek advice on whether title II expanded a public school district's obligations to provide for program accessibility to its different school facilities beyond the requirements of Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. S 794. The ADA authorizes the Department of Justice to provide technical assistance to individuals who have rights under the Act. This letter provides informal guidance to assist you in understanding how the ADA applies to the question you present. This technical assistance, however, does not constitute a determination by the Department of Justice of your or other's rights under the ADA and is not a binding determination by the Department of Justice. We are not aware of any document that specifically covers school board accessibility standards. However, the Architectural and Transportation Barriers Compliance Board (Access Board) has issued proposed accessibility guidelines under title II of the ADA relating to the construction of new State and local government facilities, including schools. We are providing you with a copy of the proposed guidelines for your review. You can obtain a copy of the final guidelines from the Access Board when

they are published, probably in the late fall. cc: Records CRS Chrono Friedlander Stewart.kerr.ltr FOIA Breen

01-02552 -2With respect to your second inquiry, title II protects qualified individuals with disabilities from discrimination on the basis of disabilities in the services, programs, or activities of all State and local governments. It extends the prohibition against discrimination on the basis of disability established by section 504 of the Rehabilitation Act of 1973, as amended, to all activities of State and local governments, including those that do not receive Federal financial assistance. The Department of Justice's title II regulation adopts the general prohibitions against discrimination established under section 504, and includes specific prohibitions of discrimination from ADA. See 42 U.S.C. S 12134; 28 C.F.R. S 103(a). The preamble to the title II regulation explains the import of these statutory and regulatory provisions: The standards of title V of the Rehabilitation Act apply for purposes of the ADA to the extent that the ADA has not explicitly adopted a different standard than title V. Because title II of the ADA essentially extends the antidiscrimination prohibition embodied in section 504 to all actions of State and local governments, the standards adopted in [the Department of Justice's title II regulation] are generally the same as required under Section 504 for federally assisted programs. 56 F.R. 35694, 35696 (July 26, 1991). In the area of program accessibility to the public school sites, the Department's regulation does not expand upon the requirements of section 504. It has been the policy under section 504 of the Department of Education and its predecessor department, the Department of Health Education (ED) and Welfare, not to require a school

district to make each and every one of its school sites accessible to students with disabilities. With respect to existing facilities, HEW's section 504 regulation did not mandate that each and every facility operated by a recipient be accessible. 45 C.F.R. S 84.21 (a). HEW's approach was continued in ED's section 504 regulation, 34 C.F.R. S 104.21 (a), is restated in the Department of Justice, title II regulation. 28 C.F.R. S 35.150 (a)(1). Consequently, similar standards for determining a school district's obligation to provide program accessibility exist under title II and section 504. As stated in the Department of Justice's Title II Technical Assistance Manual:

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-3 A school system should provide for wheelchair access at schools dispersed throughout its service area so that children who use wheelchairs can attend school at locations comparable in convenience to those available to other children. Also, where "magnet" schools, or schools offering different curricula or instruction techniques are available, the range if choice provided to students with disabilities must be comparable to that offered to other students. See Technical Assistance Manual at page 10, S II-3.4200. For your convenience we have enclosed a copy of this manual. Thus, a school district normally is not required under section 504 or title II of the ADA to make each and every one of its schools serving the same grade levels accessible. The determination whether a school district has complied with this standard would be based on a review to ensure that the educational opportunities provided to students with disabilities are comparable to the opportunities afforded to others. It is important to note, however, that any school receiving federal financial assistance that was constructed after May 4, 1977, the effective date of ED's section 504 regulation for

federally assisted programs, would be considered "new" under that regulation. Accordingly, section 504 requires any such school to have been built in accordance with the American National Standards Institute guidelines, the standard cited in the ED regulations for construction occurring between May 4, 1977 and January 19, 1991, or the Uniform Federal Accessibility Standards for construction after January 19, 1991. I hope this information is helpful to you. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosures (2) 01-02554

SONJA D. KERR Attorney at Law 3421 Kent Street Shoreview, MN 55126 (612) 483-6209 Fax (612) 483-0882 May 27, 1993 John R. Dunne Assistant Attorney General Civil Rights Division United States Department of Justice Office on the Americans with Disabilities Act P.O. Box 66118

Washington, DC 20035-6118 Re: Access regulations

Dear Mr. Dunne: I would appreciate receiving a copy of the new school board accessibility standards under the ADA when they are published. I would also like to provide the following general comment and request an answer to an inquiry. In 1991, in Schuldt v. Mankato. 937 F.2d 1357 (8th Cir. 1991), cert denied, the Eighth Circuit ruled that a school district could legally bus Erika Schuldt a child who uses a wheelchair, from her neighborhood to a school four miles away because her neighborhood school was not accessible. I have a very simple question: could the school district do the same today even under the ADA? It seems to me that the legislative history of the ADA is clear that simply providing one accessible school in a district or a part of a district is insufficient. Title II of the ADA makes the enactment applicable to school districts. According to the Report of the House Judiciary Committee, Title II was intended to improve the effects of Section 504, which has been in place since 1973. H.Rep. No. 485, 101st Cong., 2d Sess. 49 (May 15, 1990). The ADA was designed to be more than Section 504 and was to be the "end of exclusion and segregation." H. Rep. No. 485, at 26. The intent was to permit persons with disabilities to enjoy all of the rights that other Americans take for granted. Separate-but-equal services was not considered to be accomplishing this goal and the Congress rejected that approach. H.Rep. No. 485, supra, at 50 and at n. 52. The Report makes crystal clear that the existence of separate programs can never be used as a basis to excluse a person with a disability from program Providing Representation for Persons with Disabilities 204-012-0032 (STAMP) 01-02555 Dunne Re: Access May 27, 1993 Page 2 that is offered to persons with disabilities, or to refuse to provide an

accommodation in a regular setting." Id. at 50 Indeed, the Congress was specifically aware of the issue of schools and stigmatizing practices with respect to children with disabilities. Senator Dodd, a co-sponsor of the ADA, noted that 'The ADA requires that children with disabilities, regardless of the severeity of their disabilities, be permitted to utilize the same public services that others without disabilities utilize as a matter of course. They are to be permitted to utilize the same ... schools.. that they would normally utilize, in their communities, if they were not disabled ... No longer will children be subjected to forced bussing to programs outside of their neighborhoods because that is where the "handicapped" program is located. Such practices severely stigmatize children with disabilities and their families." 135 Cong. Rec. S10721 Thank you for your assistance. Very truly yours, Sonja D. Kerr Attorney at Law cc: Senator Paul Wellstone

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(Handwritten) From Title II Manual - Dept of Justice below, but general principle underlying these obligation is the mandate for an equal opportunity to participate in and benefit from a public entity's services, programs, and activities. II-3.400 Separate benefit/integrated setting. A primary goal of the ADA is the equal participation of individuals with disabilities in the "mainstream" of American society. The major principles of mainstreaming are1) Individuals with disabilities must be integrated to the maximum extent appropriate. 2) Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual. 3) Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits. II-3.4100 Separate programs. A public entity may offer separate or special programs when necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided. ILLUSTRATION 1: Museums generally do not allow visitors to touch exhibits because handling can cause damage to the objects. A municipal museum may offer a special tour for individuals with vision impairments on which they are permitted to touch and handle specific objects on a limited basis. (It cannot, however, exclude a blind person from the standard museum tour.) ILLUSTRATION 2: A city recreation department may sponsor a separate league for individuals who use wheelchairs. II-3.4200 Relationship to "program accessibility" requirement. The integrated setting requirement may conflict with the obligation to provide program accessibility, which may not necessarily mandate physical access to all parts of all facilities (see II-5.0000). Provision of services to individuals with disabilities in a different location, for example, is one method of achieving program accessibility. Public entities should make every effort to ensure that alternative methods of providing program access do not result in unnecessary segregation. ILLUSTRATION: A school system should provide for wheelchair access at

schools dispersed throughout its service area so that children who use wheelchairs can attend school at locations comparable in convenience to those available to other children. Also, where "magnet" schools, or schools offering different curricula or instruction techniques are available, the range of choice provided to students with disabilities must be comparable to that offered to other students. II-3.4300 Right to participate in the regular program. Even if a separate or special program for individuals with disabilities is offered, a public entity cannot deny a qualified individual with a disability participation in its regular program. 01-02557