The ADA and Public Schools...continued

1992 letter from an Attorney General to someone in Nebraska in regards to the ADA and public and private schools

8/19/92
The Honorable Doug Bereuter
U.S. House of Representatives
2348 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 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 school's 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 II-5.2000, page 20, of
The Manual for further discussion of alternatives for making a
Program accessible.

Cc: Records, CRS, Friedlander, Stewart, McDowney, Breen
01-01429 - 2 -
Even 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
In 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
Section 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 school's 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?
01-01430
- 3 -
Under 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 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 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 self-
evaluation requirements are discussed in II-8.2000, pages 40-
43, 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