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THE ADA: A NEW KIND OF REVERSE DISCRIMINATION

by A. W. Keagy
awk@keagy.org

At one time or another, almost everyone complains about government bureaucracy, but
relatively few do anything about it. The bottom line is, we only have ourselves to blame if we
do nothing. As an architect who has worked on a number of public school projects, I would like
to expose what I consider to be one of the worst problems in getting our state to approve projects
for construction or renovation and ultimately for our children’s use.

I dislike working on public schools because the Americans with Disabilities Act (ADA) is out of control
and it is only getting worse. Last year I attended an American Institute of Architects (AIA) Inland
Empire Chapter meeting in Redlands, California. The speaker, James Vitale from the Riverside,
California office of the Division of the State Architect (DSA), stated that the ADA "morphed into
something it was never intended to be". This is obvious for anyone well versed in access compliance,
such as myself.

The Federal Americans with Disabilities Act (ADA) was implemented in July of 1990, and I
considered it initially as a law with good intentions. California now has the most overbearing
and restrictive set of Access Compliance laws in our Country. It is so bad, in fact, that it is
hurting the general student population and at times even those it intended to help – the
disabled, rather than help them. (My state also has more ADA bureaucracy with the
CASp program and CALDAG, but these are other problems!) Let me give some
background first before giving specific examples.

The Division of the State Architect (DSA) must review and approve public school projects
through its regional offices. The DSA San Diego office reviews some projects for San
Bernardino County, for example. There are three separate areas of review: Fire Life Safety,
Structural and Access Compliance (AC) based on the ADA. I am specifically focusing this
exposé on the Division of the State Architects Access Compliance (DSA/AC) statutes,
regulations and policies.

According to DSA/AC there is no limit on the amount of funds that should be spent on AC
upgrades. (They will tell you only 20% of funds need to be spent on access compliance, but this
does not work; otherwise the examples on the following pages would not have been issues. In
reality it has been an all or nothing approach as can be seen in these examples.) Access
compliance takes priority over general modernization and facility upgrades that benefit all
students. This has not always been the case though. There used to be limits. Why this
spending threshold was eliminated I do not know. How does this benefit the vast majority of our
“able bodied” students if most modernization funds go to “accessibility issues?” This does not
make sense. How does this make best use of available modernization funds? The Access
Compliance bureaucratic line of reasoning has evolved to that either everyone can use it
“equally”, or no one should be able to use it. This is pathetically wrong. Another train of
thought that I have run into is as follows: When making the comment that a band director, in the
years he has been at a particular high school, has not yet had one disabled student, the response
from Access Compliance was “if we provide for the disabled then there would be students in
band.” I cannot agree with this line of reasoning. If a student wants to be in band, he or she can.
(There were disabled students with me in high school band in the 1970’s. So what’s the problem
now?) Having access to every nook and crany of the band room or building is not a requirement
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for participation. DSA/AC should not relegate the physically disabled to the status of the
developmentally disabled. Besides, when providing cabinetry specifically for musical
instrument storage for a disabled student, for example, do I provide space for a tuba or piccolo?
The point is, trying to provide for all the needs of all current and future disabled at one
point in time does not work. When accessibility laws keep changing to try to cover more
potential deficiencies within its laws, things get even more convoluted, confusing and
expensive.

Some examples of Access Compliance scenarios that I have been involved in are as follows:

• In trying to replace old deficient stadium lighting at an Inland Empire high school
stadium, DSA wanted proof that the stadium was accessible to the letter of the law
regarding restrooms, accessible paths of travel, accessible seating, etc…, otherwise “If
[this accessibility] work [was] not provided this lighting system enhances additional use
and enjoyment for those able bodied while still disadvantaging those with disabilities.”
What this statement is saying is that providing upgraded lighting would even to a greater
degree disadvantage those with disabilities. DSA wanted us to upgrade the whole
stadium in order to just replace poor field lighting. Talk about reverse discrimination!
In reality by not upgrading the lighting, it disadvantaged everyone, including the
disabled, since any disabled would have used and continue to use the stadium. The old
stadium did not provide the “minimum accessible features” required by current
California accessibility laws but it can be accessed by those in wheelchairs, just not by
today’s DSA/AC standards.

• A particular elementary school raised the money to put a 16’ x 16’ shade structure in
their Kindergarten playground to provide shade and a place to eat for the Kindergarten
children. This school was constructed after 1990 and built within accessibility guidelines
of that time. DSA would not allow the school, however, to install this shade structure
until the disabled parking spaces were modified to current disabled accessibility
standards. This meant removing the existing ramp, repaving and striping this area,
demolishing part of the sidewalk that boarders the parking lot and incorporating a new
ramp into the sidewalk. It also meant adding additional accessible directional signage on
campus and some other minor items. This nearly tripled the price of the project. I’m
sure all of this was appreciated by the Kindergarteners No wonder so many districts
try to put up shade structures without DSA approval, especially shade structures for
existing student eating areas.

• In a DSA Application for Unreasonable Hardship I made a request to exempt a high

school theater orchestra pit from current accessibility “laws”. There were several reasons
for this. First, a majority of the money to be spent on this theater building was already
being used for access compliance modifications. Second, to make this relatively small
space totally accessible, per current code, we would need to lower the concrete orchestra
pit floor or raise the stage. (The underside of this stage is also concrete and it cantilevers
out over part of the orchestra pit.) Third, this would definitely put the modernization
project over the available modernization budget. I also included additional information
and a comment stating that “The District has hired our firm to represent . . . . sound
design and fiscally responsible practices” and doing these modifications would be
neither. Access Compliance’s response was “We cannot accept the hardship as
presented.” The response goes on to give bureaucratic jargon and asks for more
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information which would, of course, just drag out the process for who knows how much
longer. Again, Access Compliance will get their way at the expense of the students.
There was neither the time or money to hold up the whole campus modernization project
because of this orchestra pit. The Access Compliance reviewer goes on to state that
“personal comments cannot be accepted” in the application, yet makes personal
comments himself in the evaluation of the application. Ultimately I was told by Access
Compliance to make the orchestra pit accessible or totally close it off for use to
everyone, otherwise DSA would not approve any of the modernization on campus. This
is ludicrous! (I’m sorry students, but you orchestra members will have no logical place
to perform during your next musical.) There is no way anyone is being helped by this
DSA/AC policy decision.

• Another example involves replacing telescoping bleachers in a high school gymnasium.

To replace 43 year old dilapidated bleachers per “replacement-in-kind maintenance
work”, DSA required that we upgrade the whole gymnasium including restrooms,
drinking fountains and path of travel for the disabled from the main parking lot on the
other side of campus. For months DSA/AC refused. The saving grace, in the end, was
the fact that we were going to be doing a modernization of the campus, and at that time
access compliance would be addressed. However, DSA would not approve these new
accessible bleachers until the construction documents for the modernization were
submitted to DSA. This meant that all students were without gymnasium bleachers for
almost two years! It did not matter to DSA that these old bleachers were removed to
refinish the gym floor and then realized they could not be replaced because they would
damage the refinished maple flooring, or that in the meantime the 3,000 students in this
High School had no bleachers. Also, DSA would not “close out” this bleacher project
until the whole campus modernization was complete. Under my understanding of
DSA/AC policies, they could have done a replacement-in-kind as long as the bleachers
were ADA approved, but the subjective opinion of the DSA/AC plan reviewer was “no”.
We could “replace a seating plank” according to their comment but not the entire
bleacher. What a misguided interpretation!

DSA/AC in many ways, has held the construction and modernization of our children’s
schools hostage by greatly lengthening and complicating the process of relatively simple
construction. By all means, we have the obligation to make public school facilities accessible
to the disabled, but a majority of School Districts in our state have not followed through with
their ADA Transition Plans, for whatever reasons, and this is to the detriment off all students
because it is now difficult to get anything done. Why do you think there are so many “trailers”
on school campuses now? Is it directly related to the increase in time and cost to get project
approval through our state? I believe it is. It is easier to get document approval to construct a
complicated radiology suite in a hospital than it is to get approval to remodel a simple
classroom.

What started out in principle to be a good set of laws to make public schools completely
“barrier free” has become a tangled bureaucratic web for what I consider to be mostly a
fear of litigation and protecting state jobs. As many bureaucratic “barriers” have been
raised to get work done for the general student population as have physical barriers been
removed for the disabled.
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It is not all DSA/AC’s fault though. Many school districts are being penalized by DSA for not
following through with the access compliance Transition Plan that each school district was
mandated by our state to do. DSA has laid down the law and has said that some districts cannot
do various improvements unless they follow through with access compliance. It is clear in an
Access Policy Update that a “majority of public entities under DSA/AC jurisdiction have failed
to correctly [if at all] complete a Self-Evaluation and Transition Plan….” This can impact all
students.

What has happened is a power struggle between DSA and school districts. Many architects feel
like they are caught in the middle between their client (the school district) and the approving
agency (DSA), but the stark reality is our children are the ones that are caught in the middle.
They are the ones that have to do without bleachers for basketball games and rallies, for
example, due to the excessive access compliance bureaucracy and the length of time taken to
approve projects. It is common for projects to set 3 months or more before they are even plan
checked by reviewers. Our access compliance laws have evolved to an unrealistic extreme.

Ever since the passage of proposition 39 in 2000, lowering the voter approval of school bonds
from two-thirds to 55 percent, most bonds pass. Billions of dollars are spent on access
compliance. There is not a lack of money for school improvements, but a lack of balance and
common sense. Approximately $60,000,000 was spent on a new high school near my home, but
that school lacked $200,000 to purchase needed text books. Something is wrong here. Yes, I
understand that funds come from different sources, but by making some modifications to our
current ADA/AC laws much money could be saved or put to better use.

This whole issue is not simple, and this evaluation is only an overview and far from
comprehensive. There are many dedicated people out there who can only wring their hands and
hope that the process will change for the better, but state bureaucracy is powerful and to change
the status quo is not easy. I am jeopardizing my own career by this brief exposé, but I have no
choice. The future is about our children, not about my career.

The spirit of the law was initially good, but when state bureaucrats try to live by the letter of the
law (because of potential litigation, job security, desire for control or whatever) the system goes
awry. Do we accommodate the disabled? Yes, of course. But when the pendulum of
accommodation swings as far as it has, a common sense approach to accommodation has went
out the door at the expense of all students.