DEC 21 1995 The Honorable Charles H. Taylor U.S. House of Representatives 231 Cannon Building Washington, D.C.

20515-3311 Dear Congressman Taylor: This letter is in response to your inquiry on behalf of your constituent, XX , regarding the broken sidewalk at Central Elementary School in Haywood County, North Carolina. XX wishes to know whether the school could be required to repair the sidewalk under the Americans with Disabilities Act of 1990 (ADA). Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of disability in all programs, activities, and services provided by or on behalf of State and local governments. The Department of Justice's title II regulation prohibits a public entity from denying the benefits of such programs, activities, and services to qualified individuals with disabilities because the entity's facilities are inaccessible to or unusable by individuals with disabilities. A public entity is required to provide "program access," i.e., the entity is required to operate each service, program, or activity it provides so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities. Providing program access does not necessarily require a public entity to make each of its facilities fully accessible. For example, program access can be achieved by the relocation of services from inaccessible to accessible buildings or by the assignment of aides to program beneficiaries. In addition, a public entity is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities or in undue financial and administrative burdens. cc: Records, Chrono, Wodatch, McDowney, Milton, FOIA n:\udd\milton\congress\sidewalk.tay\sc. young-parran 01-04121

-2With respect to the situation you describe, title II of the ADA requires public entities to maintain in operable working condition those features of facilities that are required for program access and over which the public entities have control. Therefore, if a public entity has responsibility for, or authority over, sidewalks or other public walkways, and if such sidewalks or walkways are necessary to ensure accessibility to the entity's programs, services, or activities, then the public entity has an obligation to maintain the sidewalks or walkways in usable working condition. I hope this information is helpful to you in responding to your constituent. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division 01-04122 XX October 17, 1995 Congressman Charles H. Taylor U.S. House of Representatives 516 Cannon Building Washington, DC 20515 Dear Congressman Taylor: On XX fell and broke XX arm at Central Elementary School in Haywood County. XX fell on a broken sidewalk that has been in need of repair for quite some time. We attempted to recoup our medical expenses from the school's liability insurance carrier, North Carolina School Boards Insurance Trust, who denied our request under the laws of contributory negligence. We were told by Terrance Sullivan of the North Carolina General Assembly that even though the school was negligent, they were not obligated to pay medical

expenses as they are protected by the laws of contributory negligence. We are of the opinion that the school system uses contributory negligence to exempt themselves from the responsibility and expense of maintaining a safe school environment. Even though contributory negligence has taken away the incentive for the schools to repair this sidewalk, can they be coerced to make the necessary repairs under the Americans with Disabilities Act on the grounds that they deny safe access for the blind and visually impaired? Sincerely, XX 01-04123