Ret. 12117/93 SBO:MAF:LMS:ca:rjc XX (b)(6) DEC 17 1993 The Honorable Doug Bereuter Member, U. S.

House of Representatives P. 0. Box 377 Fremont, Nebraska 68025 Dear Congressman Bereuter: This responds to your recent letter in which you raise a number of questions relating to the applicability of the Americans With Disabilities Act (ADA) to certain activities of religiously-controlled schools in the State of Nebraska and a local government's duty under the ADA to provide program access to its parks and other recreational services. While title III of the ADA applies to private entities such as private educational institutions, it does not apply " ... to religious organizations or entities controlled by religious organizations .... " 42 U.S.C. S 12187. As you noted in your letter, this exemption includes religiously-controlled schools. Thus, all the activities of a religiously-controlled school are exempt under title III. More specifically, however, your letter inquired about possible interscholastic events held at religiously-controlled schools in which students from both public schools and religiously-controlled schools may compete in academic, cultural, or athletic activities. In such situations, even though the religiously-controlled school has no obligation under the ADA to ensure that the events held at its facility are accessible to individuals with disabilities, the affected public school district does have such responsibilities. Records, CRS, Chrono, Friedlander, FOIA, McDowney, Stewart :UDD:Stewart.Bereuter.MOD

01-02847 -2Under title II of the ADA, a public school district must ensure that its programs are accessible to individuals with disabilities. As noted in our prior letter to you, the Department of Justice's title II regulation, 28 C.F.R. Part 35, adopts the concept of program accessibility for facilities existing on the effective date of the statute, January 26, 1992. See 28 C.F.R. S 35.149. In existing facilities, "[a] public entity shall operate each service, program, or activity so that the service, program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. S 35.150(a). The regulation provides, however, that a public school district is not required "... to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. S 35.150(a)(3). The decision that the alterations would result in a fundamental alteration to the nature of a service, program, or activity or in undue financial and administrative burdens must be made by the head of the public school district or his or her designee after considering all the resources available for use in the funding and operation of the service, program, or activity. Id. The decision must be accompanied by a written statement of the reasons for reaching the conclusion that undue burdens would occur. Id. Thus, absent proof that the limitations stated in section 35.150(a)(3) exist, a public school district that provides interscholastic academic, cultural, or athletic competitive events with other schools, whether public or religiouslycontrolled, must ensure that each of its interscholastic programs, services, and activities, when viewed in its entirety, is readily accessible to and usable by individuals with

disabilities. A public school district may not be meeting this obligation to the extent that these activities are held occasionally at inaccessible sites. An illustration demonstrates this standard. A public school district's high schools have debate teams. The public high schools are part of a city-wide competitive debate league composed of the public high schools and religiously-controlled high schools in which the debate teams compete. Competitions between the debate teams are held on a rotational basis at all the member schools. some of the facilities at the religiouslycontrolled schools are inaccessible. Absent evidence that the limitations contained in section 35.150(a)(3) exist, if the debate teams from the public schools are required to compete at the inaccessible facilities of the religiously-controlled member schools, the public school district may not be meeting its obligation of program access. Although the religious schools are totally exempt from coverage of the ADA, the effect of their 01-02848 -3inaccessibility on the public schools' obligation to provide program access may, in fact, require the religious schools to use an accessible location or risk the loss of public school participation in the league. With respect to your inquiry concerning the obligation of a city to make each of its existing parks and recreational sites accessible, the same standard discussed above would apply. The duty under program access is to ensure that, when viewed in its entirety, the city's parks and recreational program is readily accessible to and usable by individuals with disabilities. This obligation does not necessarily require a city to make each and every park or recreational facility accessible. "When viewed in its entirety" means that the location of the accessible facility (or facilities) is comparable in convenience to those facilities that are inaccessible, and the range of programs and services offered at both is equivalent. For example, in the situation described, if the area to be served is not so large as to make travel to the accessible park and community center very inconvenient for those individuals located on the outskirts of the city, then the program access requirement would be met.

I hope this information is helpful to you in responding to your constituents questions. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division