U.S. Department of Justice Civil Rights Division Office of the Assistant Attorney General Washington, D.C.

20530

AUG 21 1992 The Honorable Doug Bereuter U.S. House of Representatives 234B Rayburn House Office Building Washington, D.C.20515-2701 Dear Congressman Bereuter: This letter responds to your inquiry concerning compliance with the Americans With Disabilities Act (ADA) by public and private schools in the State of Nebraska. The ADA authorizes the Department of Justice to provide technical assistance to entities subject to the Act. This letter provides informal guidance with regard to the questions you have posed, but does not constitute a determination by the Department of Justice of the rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. Your specific questions and our responses are as follows: 1. Must every area of an existing school facility be made accessible to an individual with a disability? Section 35.149 of the enclosed title II regulation requires accessibility to programs, services, and activities in facilities existing on the effective date of the statute, January 26, 1992. The principal focus of the program accessibility standard is access to programs, services, and activities, as opposed to access to physical structures. Therefore, not every area of an existing school facility would have to be made accessible, as long as there is access to a schools programs, services, or activities. You may refer to II-5.1000, pages 19-20, of the enclosed Title II Technical Assistance Manual for further discussion. In addition, section 35.150(b)(1) of the title II regulation

does not require that a school district eliminate structural barriers if it provides access to its programs through alternative methods. You may refer to 11-5.2000, page 20, of the Manual for further discussion of alternatives for making a program accessible.

01-02853 -2Even if structural alterations are necessary to provide program accessibility, section 35.150(a)(3) states that a public entity is not required to alter its facilities if it can demonstrate that the alterations would cause a fundamental change to its program or that the cost of the alterations would result n undue financial and administrative burdens. These limitations are discussed in II-5.1000, pages 19-20, of the Manual. As you may, know, many Nebraska public school districts have been required to comply with section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of handicap, since 1973, because they receive Federal financial assistance. Since Title II of the ADA merely extended section 504's program accessibility requirements to all programs, services, and activities of a State or local government, title II should impose few added burdens on Nebraska public school districts subject to Question 504. 2. Does the term "qualified individual with a disability" apply to students only, or does it apply to visitors? For example, could a grandparent wishing to visit the school sue because of lack of access? Section 35.104 defines a "qualified individual with a disability" as "an individual with a disability who . . . meets the essential eligibility requirements for the receipt of services or participation in programs or activities provided by the public entity." With respect to those qualified to participate in a school district's programs, the preamble to the title II regulation states at page 35696 that [p]ublic school systems must comply with the ADA in all of their services, programs, or activities, including those that are open to parents or to the public." Therefore, if a public schools programs are open to visitors, access must be provided to them if they are individuals

with disabilities. 3. Do the regulations apply to private schools in the same manner as public schools? As places of public accommodation, private schools are subject to the requirements of title III of the ADA (not title II, which applies to public schools) and the Department's title III regulation. Different standards apply under title III than under title II. For example, under the title III regulation, a private school must remove barriers to accessibility where such removal is "readily achievable." 4. At what point must a school district without a disabled student comply? When a disabled student enters the district or within a certain time frame after the January 26, 1992, date when structural barriers regulations went into effect? 01-02854 -3Under title II, a school district must provide access to its programs, services, and activities after January 26, 1992. Under section 35.150(d) of the title II regulation, a school district with fifty or more employees that identifies structural barriers to program access must develop a transition plan by July 26, 1992. Please refer to S II-8.3000, page 43-44, of the Manual for further discussion of the requirements for a transition plan. In addition, section 35.105 requires a school district to conduct an addition, section 35.105 requires a school district to conduct a self-evaluation of its current services, policies, and practices and modify those services, policies, and practices that do not comply with the Department's title II regulation. The selfevaluation requirements are discussed in II-8.2000, pages 4043, of the Manual. 5. Nebraska has many school districts which contain, only a one-room elementary school house. Many of these are not accessible to individuals with disabilities; however, there are no disabled students in those districts. How far must these schools go to comply with the ADA? Must they install chair lifts? Must they discontinue classes in their basements? Again, would the level of compliance be different for students

and visitors? Consistent with a longstanding interpretation of section 504 of the Rehabilitation Act by the former Department of Health, Education, and Welfare, (copy enclosed) the apparent lack of individuals with disabilities in a school district's service area does not excuse the school district from taking whatever appropriate steps are necessary to ensure that its programs, services, and activities are accessible to qualified individuals with disabilities. Section 501(a) of the ADA states that the ADA is not to be interpreted as providing a lesser standard than that provided under the Rehabilitation Act. Thus, title II would require that steps be taken even if there are no disabled students in a district. I hope this information is responsive to your inquiry. Sincerely, John R. Dunne Assistant Attorney General Civil Rights Division Enclosures (3) 01-02855