# 32

II-5.1000
II-2.8000
August 21, 1992
T. 8/19/92
SBO:LMS:kgf
DJ# 192-180-09673

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.

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?

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

Enclosures (3)